I move amendment No. 1:
In page 9, subsection (3), line 37, to delete "rule-making" and substitute "instrument-making".
This is designed to improve the drafting of the Bill.
Vol. 186 No. 4
I move amendment No. 1:
In page 9, subsection (3), line 37, to delete "rule-making" and substitute "instrument-making".
This is designed to improve the drafting of the Bill.
I accept the amendment.
I move amendment No. 2:
In page 14, line 39, to delete "repealing" and substitute "deleting".
It is not good drafting procedure to state the section is amended by repealing a subsection. Either section 26(8) should be repealed or our amendment should be accepted.
I do not accept the amendment at this stage. The Senator may have a point and I propose to consult the Attorney General on the matter. I may table an amendment in the Dáil.
Given the Minister's reply, his commitment to examine it and the opportunity to revisit this matter in the Dáil, I withdraw my amendment.
I move amendment No. 3:
In page 20, line 35, to delete "repeatedly".
There is no good reason to limit the protection for the consumer by requiring that only repeated breaches can be the subject of a complaint to the High Court.
I accept the amendment. The intention was that an offender would have to commit an offence on two or more occasions before an application could be made to the court for an order of compliance. This gives the benefit of the doubt to an undertaking that had committed an offence due to an error and is deemed unlikely to re-offend. In such situations proceedings would not be initiated but I am satisfied the amendment allows ComReg the same discretion.
Amendments Nos. 4 to 6, inclusive, are related and may be discussed together by agreement.
This provides clarification as to the schedule referred to. Amendment No. 5 is deemed necessary because only part of the European Communities Act may come under the responsibility of a Minister. The other parts may be the responsibility of other statutory bodies. This is a standard provision in legislation.
Regarding amendment No. 6, it is the norm to use the expression "amend by regulation". The Chief Parliamentary Counsel has proposed this amendment.
Amendments Nos. 7, 9, 15 and 16 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 22, to delete lines 11 and 12.
My party has concerns about this section. The basis by which the Minister can designate serious offences by regulation is not correct. As the fundamental unit of democracy it is the Houses of the Oireachtas that decide the powers of the Minister. It is fair if the Minister assumes these powers by resolution of both Houses. As the Bill stands, the Minister can create serious offences by regulation. The Labour Party has a fundamental problem with this and opposes it in this House and the Dáil. We also opposed the European Communities Bill on this basis.
I understand why some people have a difficulty with this section. It provides an enabling mechanism to allow the Minister to make new regulations to provide for indictable offences for breaches of obligations under this Bill and to give effect to an Act adopted by the European Community relating to the provision of electronic communication services, radio spectrum, the national numbering resource or the postal services.
This provision is included because the communications sector is dynamic and fast moving. It is important to be able to legislate in a timely manner. Despite the best efforts of politicians and officials it has taken us 15 months to discuss this Bill in the House. This is a good example of why we need legislation that moves fast. As we debated the Bill, most Members agreed the rate of progress on local loop unbundling and broadband was not as fast as we would like. That is partly because ComReg did not have the power as it was not foreseen it would need that power. It is important, therefore, to have this kind of legislation and a power to change legislation quickly. The new powers proposed will enable me as Minister to implement any new changes to the framework in a timely manner and provide for effective penalties for non-compliance by undertakings for serious breaches. The current regulatory regime provides for summary proceedings with a maximum fine of €3,000 and the option of civil proceedings for non-compliance with obligations under that regime. There are no indictable offences under the European electronic communications regulatory package as transposition was carried out under the European Communities Act 1972, section 3 of which prohibits indictable offences. The intention is to facilitate the timely transposition of the EU directives in this sector together with the creation of indictable offences for certain obligations under the Bill. The Bill as drafted, however, provides for the creation of indictable offences only where summary offences exist under the regulatory pack of 2003. Non-compliance with some of the obligations was not explicitly deemed to be an offence.
Amendment No. 9 is required to provide for the creation of an offence for breach of these obligations and to provide for it to be tried summarily or on indictment. Section 46A, which deals with this, will allow for substantial penalties to be imposed on undertakings for serious offences with fines of up to €4 million or 10% of turnover.
Amendment No.16 is required to provide that where 10% of turnover is greater than €4 million the court can decide to impose a fine up to this amount as originally intended. Compliant operators have nothing to fear from any of these proposals.
The case for our amendment and the inclusion of indictable offences is compelling, particularly in light of our experience in the past four or five years in trying to regulate the market.
I do not wish to labour this point, no pun intended, but we tabled this amendment because we do not believe regulation is a suitable way to deal with the types of serious offences mentioned. In other sections of the Bill the Minister wants to give himself the power to create offences incurring fines of up to €4 million. The rejection of the Nice treaty in the first referendum was an example of a lack of confidence in democratic systems. There was a major debate at the time about the hold of the EU on member states and the resulting obligations on us. There is a perception now that most of these issues are European and that people in Brussels and Strasbourg tell us what to do.
Both Houses of the Oireachtas are democratically elected and represent a fundamental aspect of democracy and any Minister who wishes to afford himself this kind of power should do so through these Houses. This Bill would bring about a major transfer of power from the Oireachtas to Ministers by allowing them to create indictable offences by regulation rather than through the introduction of legislation. At least there is wide-ranging debate on legislation through various stages, amendments and so on. If a power is effected as a result of legislation debated in both Houses then so be it. We fundamentally oppose what the Minister proposes in this Bill. I appeal to him to accept this amendment.
I agree with the Minister's comments on this amendment, especially his point that those who are compliant need not fear these regulations. We never should be afraid to introduce harsher penalties in any sphere of legislation. The people who will always obey the rules have nothing to worry about.
In the course of my research on Second Stage of this Bill I was struck by the weakness of the legislation to make compliant the players in this field. I was aware of this from having seen representatives of ComReg before the Oireachtas Joint Committee on Communications, Marine and Natural Resources. Many of these players lead ComReg a merry dance through the courts and received only a slap on the wrist at the end of the process. I might have some sympathy for a similar amendment in other areas of legislation but communications technology changes so fast that if we must come back here with new legislation every time there is a problem we will be forever tying ourselves in knots. None of us knows where new technology will be in three, six or nine months' time. We must be ready to react quickly in such a situation. That is why I support the Minister's stance on this amendment.
I thank the Senators for their contributions. I wish to reassure Senator McCarthy that the 2002 Act provides for a 21 day scrutiny for any regulation the Minister introduces. The question and point about democratic accountability is answered by the fact that we are discussing it here and will do so in the other House too. In addition, there is provision for Oireachtas scrutiny and the possibility, if the Oireachtas so decides, to negate any future regulation made by the Minister in connection with this Act. Members of both Houses are democratically elected and Ministers are elected by Members of the House which imposes accountability. The insertion into the principal Act of new sections 46A to 46E, inclusive, is particularly important because it gives teeth to the Bill and that is why I wish to ensure it is inserted in the legislation.
The Minister is insisting on his position. We may consider tabling this amendment again on Report Stage. The present law under the European Communities Act 1972 requires approval by the Oireachtas in the form of primary legislation of all proposals to create indictable offences in terms of implementing European law. My point on democratic accountability and scrutiny was about perception. I fully accept the Minister's response.
Amendments Nos. 8 and 10 to 17, inclusive are related and may be discussed together by agreement. Is that agreed? Agreed.
These are all technical amendments, caused by other amendments. The reference in section 46A (1)(b) changes from subsection (5) to subsection (6) as a result of amendment No. 8. Amendment No. 10 changes the paragraph numbering to replace the number of the old subsection (2) with subsection (3) to ensure the numbering remains sequential. Amendment No. 11, as proposed by the Parliamentary Counsel’s office, is deemed necessary because only part of the European Communities Act may be the responsibility of a Minister while other parts are the responsibility of other statutory bodies. Amendment No. 12 is made by the Parliamentary Counsel’s office, deleting the existing subsection (3) of the Bill as originally drafted. This is now considered to be superfluous. Amendments Nos. 13 and 14 modify the reference from the old subsection (2) to the now numbered subsection (3). Amendments Nos. 16(a) and 16(b) are necessary to include regulations made under the renumbered subsection (3) of the Bill. These amendments are consequential on amendment No. 9, which inserts the new subsection (2) into the Bill.
Amendment No. 17 replaces the existing subsection (9) and adds a definition of the term "turnover", which is used in subsection (6). The definitions of "European Communities" and "treaties governing the European Communities" are retained.
I move amendment No. 18:
In page 24, line 39, to delete "or any part".
We are somewhat concerned that the power to give a jury only part of the evidence is dangerous. We are of the view that there is a danger of tipping the scales of justice by selective choice of evidence. My expert parliamentary back-up team and I — he holds a BL, I do not — spent nights perusing this section. I ask the Minister to consider the point we make, namely, that selective transcription represents a difficulty and may present a slanted and one-sided view in respect of what might be the bigger picture. The decision-making process may be distorted as a result.
I do not propose to accept this amendment because the new section 46C is a statutory provision such that in a trial on indictment, a judge may order the provision of certain information to a jury. He or she is not obliged to do so but he may order it done. This is a practical provision to try to facilitate the understanding of complex evidence by a jury because it could be argued that certain regulatory cases may be difficult to follow as a result of the large amount of factual, commercial and technical evidence involved. I appreciate the Senator's concern but the provision is not designed to facilitate — we would never accuse members of the Judiciary in this regard — the slanting of evidence or to allow people to be selective about such evidence. Rather, it is designed to try to give judges, if they so wish, the opportunity to clarify matters for juries or make such matters more comprehensible. A judge will, therefore, be able to extract ten pages of a document that are relevant to the particular subject under discussion in order to make matters easier for a jury to understand. He or she may do so or he or she may decide to provide the full technical data. I am sure it would be within the rights of a juror, should he or she so wish, to seek an entire document or report.
I spoke to people who were involved in cases of this nature and cases that come before the electronic communications appeals panel and they informed me that the amount of data presented is mind boggling. To require that jurors to be provided with all of this information would be to go too far.
The provision is designed to counter any risk of juries experiencing difficulty with the economic and regulatory rationale behind certain obligations or offences. The decision of a judge to decide whether all or part of the evidence he or she considers appropriate is considered to be reasonable in light of the possible complexity of the proceedings. This type of provision is quite common in Acts relating to company law, competition law, etc. For that reason, I wish to leave the Bill as it stands and I will, therefore, not be accepting the amendment.
I thank the Minister for his reply. I appreciate his point and I will withdraw the amendment.
I move amendment No. 19:
In page 37, line 46, to delete "under" and substitute "in accordance with".
The term "in accordance with the regulations" is used in the new section 32(2) being inserted into the principal Act. The amendment would ensure the language used in the new section 32(5) will tie in with this.
I accept the amendment. The Senator is correct.
Amendments Nos. 20 to 23, inclusive, are related and may be discussed together.
Could the lack of definition of the regulator's powers in this regard result in a blurring of who is responsible subsequently?
I am satisfied the Bill is clear enough when one takes account of this Bill, the Competition Authority legislation and other existing legislation. These amendments are designed to ensure there will be maximum co-operation. I would expect that but it is better to be safe than sorry. There is a propensity at times for turf wars to break out so we decided to be very sure and insert these amendments. There will not be any blurring. Both bodies have similar powers.
Amendment No. 24 is out of order as it is not relevant to the subject matter of the Bill.
Could I raise the matter with the Minister when discussing the section?
It is a new section. How can the Senator discuss a matter in a new section when the amendment is out of order?
It is one of these things that might fall between the interstices but I am sure the Minister will be interested because he raised the analogy with ground rents this morning on the radio. I am appealing to the Minister——
I am sorry but I ruled that it cannot be discussed because it is not relevant to the subject matter of the Bill.
I am sure we will find a way to discuss it. Perhaps at the end of the debate the Chair will be more lenient. I am damned if I am not going to introduce this and say something.
The Senator always accepts that I am lenient.
You are always very kind.
I move amendment No. 25:
In page 44, before Schedule 1, to insert the following new section:
33.—That the Government shall make provision analogous to that under which house owners were facilitated in buying out ground rents to allow telephone subscribers to buy out the telephone line to their address.".
I made a mistake. The amendment ruled out of order related to people recording one's telephone calls without one's permission, which is a disgrace. I will communicate with the Minister about it. It is outrageous that when one telephones a State agency, the gas company or the like, one is told one's telephone call may be recorded for training purposes. They are not paying me for training anybody. I am not prepared to train them. It is a private telephone call. I will ask the Minister to examine this practice. The Cathaoirleach is quite correct that it is not directly relevant to the Bill.
Amendment No. 25 is. I thought the Cathaoirleach had ruled it out of order and I am glad he has not. As the Minister knows, Eircom is a disaster. It has behaved extremely badly. The flotation was a mess, then Mr. O'Reilly got in, took what he wanted and flogged it to an Australian pension fund. The Irish taxpayer installed those lines but they will pay for them forever. That is absurd. This Government, as a republican government, quite correctly abolished ground rents and gave Irish citizens the right to buy themselves out of the abusive position whereby landlords, in perpetuity, claimed the right to bleed people for ground rent every year and provided no service whatever.
The Irish taxpayer has provided the telephone lines. Most of the time the lines are defective. In my home I can usually tell what the weather outside is by picking up the telephone. If it is not working, it is probably raining. The lines have out of date connections that were put in by the Irish Government. There should be a once-off payment or people should be empowered to buy their own lines and accept responsibility for them.
This mad notion of dismantling all the State services and utilities, privatising them and making a god out of competition is to the disadvantage of the ordinary citizen. The craze about competition does not achieve what was intended. As a result, one cannot get the telephone company to repair a telephone line. It accepts no responsibility. It will recommend a franchised service, and one gets different people all the time. Each of them will give different excuses, such as, "I would not have done it that way" or "That is not the correct way to do it" or "We are waiting for a part". It is the usual absolute rubbish. One does not get proper service, the lines are often faulty, it takes ages to get repair people to call and there are no proper telephone line repair people. The service is franchised and one does not know with whom one is dealing and those people do not accept ultimate responsibility. They bounce back the problem to the customer.
If one tries to get something done with the wiring that was originally installed by the then Department of Posts and Telegraphs, the company will not even send a person to deal with the problem. One must find somebody in the Golden Pages to do it. If the Government believes in privatisation, let it privatise the lines. Allow ordinary people to buy their own telephone lines in order that they will not be required to pay for them in perpetuity. Let us say the rent for the line is €20 per month. That amounts to €240 per year, in perpetuity, for people doing nothing to lines they did not install in the first place. They simply bought them as an investment.
I urge the Minister to act on his good republican instincts and allow Irish people to end this absurdity. Let us pay for the services we get and not be subservient to the multinational corporations as we were once subservient to the imperial ruling class.
I must disappoint the Senator and not accept the amendment.
Will the Minister examine the issue?
I will certainly examine it. The selling of telephone connections to home owners is entirely a commercial matter for the telephone company, in this case Eircom. It is a privately owned company in a fully liberalised market. A Minister has no function in that area. The only question that arises is, given what the Senator said about the existing poor service, what if people buy the lines from Eircom and own them? What does he believe that would do to the service in terms of repair?
One would get exactly the same service and maybe even better because one would not be interrupted by them suggesting their own people. I wonder if what the Minister says is right. He said this is now a private concern. It is. The Government made a big error in flogging off Eircom. I do not approve of all this privatisation because it does not work in the interests of the subscriber but did that not also apply to ground rents? It is directly analogous because the ground rents were held by private people as a money making business yet the Government was able to operate against private investors, and that was not impugned constitutionally or in any other way. A number of people came in and bought up parcels of ground as a business investment. They treated them as a business investment and milked them but the Government had no hesitation in going against those people. Why can we not go against Eircom? Is it because it is owned by Australians? Do we not want to upset the Australians? I know we do not want to upset the Americans but let us upset the Australians and their pension fund.
There is a slight difference between ground rents and what we are talking about now. We got paid approximately €8 billion for the piece of infrastructure we had in the ground. The people who have it bought it from us. If I recall rightly, in the early 1970s, when the then Minister for Posts and Telegraphs, Deputy Albert Reynolds, announced that the system would be digitised and the network put in, it cost approximately €2 billion. We got a reasonably good return on it in the meantime. There is a difference. It is private property now. It has been owned, bought and paid for——
So were the ground rents.
——by the company. We should not get too hung up on this because a number of new technologies now allow for telephone service to be delivered without wires, and that is the route it will go in the future. On the other hand, and the Senator might be here giving out to me ten years from now, I am sure——
The Minister is very optimistic. I sincerely hope I will be here.
It is my nature to be optimistic. I am sure Eircom will be delighted to begin taking the purchase price off people for wires again. It would suit Babcock & Brown, and the pension funds it fronts, to get a big lump of money back into its coffers. I do not think I will oblige it.
I do not accept everything the Minister said but I will put up with it. The privatisation stunt went against the interests, in some cases, of the subscribers. When the Minister said they paid €8 billion for the lines, I do not think that was for lines. Was it not for the whole company?
There was not any particular discretionary payment of X amount for the lines, and I do not believe it was €8 billion. I would like to leave the matter open and ask the Minister to examine it because as a recurring charge one is never finished with it. The Government may have done well in getting €8 billion but the taxpayer, the individual telephone subscriber, did not. I will leave it at that.
Is the Senator withdrawing the amendment?
I will withdraw it but I will be pestiferous on Report Stage.
I move amendment No. 26:
In page 48, in the third column, between lines 19 and 20, to insert the following:
"(2) In this section a message sent by electronic mail or text message is deemed to be sent by telephone.".
This is an important section as it concerns the offence of making abusive telephone calls. It will be essential to provide clear language to ensure e-mails and texts are covered. As we are aware, cyber bullying is a major problem and the law must clearly cover such activities. The reports on cyber bullying are disturbing, to say the least, and it is difficult to define its effect on people. It is a new form of bullying. It is a way of abusing the communications system to bully someone. I hope the Minister agrees. Bullying is bullying whether it be an abusive telephone call, text or e-mail.
I have sympathy for the intent of the Senator's amendment but I cannot accept it because the purpose of amending the Post Office (Amendment) Act 1951, as outlined in the Bill before the House, was to increase fines to deter nuisance calls specifically to ECAS, the emergency call answering service. The proposed amendment would widen that considerably and would not fit in with the remit of the Bill as originally introduced. It is being communicated to the Department that the amendment could be utilised to tackle cyber bullying and once-off threatening communications but that type of regulation falls outside the remit of this Bill because the sole intent of the Bill is to address nuisance calls to the emergency services only. We get ourselves into trouble when we change the basic function of Bills before the House.
To be helpful to the Senator, in addition to the provisions of section 13 of the Post Office (Amendment) Act, which we are strengthening in this Bill, there are a number of other relevant pieces of legislation. The sending of child pornographic images via telephone is covered by the Child Trafficking and Pornography Act 1998. That provides for an offence carrying a maximum penalty of 14 years for anyone who knowingly produces, distributes, prints, publishes, imports, exports, sells or shows child pornography. Mere possession of child pornography can attract a penalty of five years imprisonment. It is also an offence under section 10 of the Non-Fatal Offences Against the Persons Act to harass a person by use of any means, including the use of a telephone. Those matters would be a matter for investigation by the gardaí and anyone who has information relating to those matters should bring them to the attention of the gardaí. While I have general sympathy with the intent of the amendment, it is not suitable for this Bill.
I presume the Minister's reference to telephone embraces mobile telephones.
I understand the Minister's point but the issue of cyber bullying is of major concern to all of us. I reserve the right to revisit this issue on Report Stage with a view to finding agreement.
Amendment No. 27, which is a Government amendment, is on the additional and substitute list of amendments circulated on 20 February 2007.
This is an amendment to remove a typographical error.
When is it proposed to take Report Stage?
When is it proposed to sit again?
Tomorrow morning at 10.30 a.m.