Vol. 186 No. 6
Before we commence I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Each amendment on Report Stage must be seconded.
Amendments Nos. 1 and 2 are related and may be discussed together by agreement.
As the Minister, Deputy Noel Dempsey, indicated on Committee Stage on Tuesday, section 8 was the subject of further consultation with the Office of the Attorney General. The legal advice is that it would be more prudent to delete section 8 in its entirety and therefore amendment No. 2 no longer applies.
As amendment No. 1 has been agreed amendment No. 2 cannot be moved.
I move amendment No. 3:
In page 22, to delete lines 14 and 15.
A fundamental principle is involved here. Section 15 will give the Minister extraordinary power to introduce provisions by regulation. The section gives special powers enabling Ministers to make regulations to give effect to European Communities instruments relating to communications matters. Transposing European legislation into Irish law is an extraordinarily serious issue. The surreptitious way in which it was done by various Governments in the past is one of the reasons for the alienation of citizenry from the European project. This section contains the most extraordinary proposal, which is the power for the Minister by order "to provide for the offence to be also triable on indictment". This is not primary legislation but secondary legislation which will sit in the Oireachtas Library and is not required to be discussed in either House of the Oireachtas. It can be annulled by either House but does not need to be discussed. Subsection (6) provides that:
The maximum fine that may be provided for in regulations under this section shall—
(a) in respect of the conviction on indictment of a body corporate of an offence under the regulations, not be greater than—
(i) €4,000,000, or
The Minister is taking on himself the power to write an order that does not need to be discussed in either House of the Oireachtas, which could result in a body corporate being fined €4 million. If the matter is dealt with in that way a person can be fined up to €500,000. If a person is fined €500,000 and does not pay the option is for the person to end up in jail. This introduces the most extraordinary rule by decree.
I have a soft spot for Hugo Chávez, President of Venezuela. When he claimed the power to rule by decree, half the western world exploded in anger. The Minister, Deputy Noel Dempsey, is here claiming the power by decree without any obligation to consult the Oireachtas to introduce offences, which could cost an individual a fine of €500,000. This is dangerous stuff. I do not expect to find myself in court because I break some European regulation. However, this will allow European regulations to be introduced without Oireachtas debate and people will not know about them. An individual could find himself or herself in breach of them and could be fined €500,000 on indictment.
The Minister will be permitted to introduce indictable offences. I believe this is unconstitutional. I know the Attorney General advised the Minister it was constitutional. However, we know the type of advice the Attorney General gives — we witnessed it last night. To introduce by decree indictable offences is unconstitutional and will be so ruled when some corporate body is summoned under these regulations. It will appeal to the Supreme Court, which will rule that such provision should have been introduced by way of primary legislation. I am saying this now because we could save ourselves considerable trouble by simply accepting the amendment to delete the subsection that allows the Minister "to provide for the offence to be also triable on indictment". This is pure laziness on the part of the Department, which is unwilling to go through the tedious process of having the nuisances on the backbenches of two Houses of the Oireachtas ask awkward questions. It is much simpler to do it by decree. It always has been the instinct of Departments to rule by decree and this is a classic example.
I second the amendment. I support the amendment because it is a serious matter if indictable offences are to be introduced through this kind of statutory instrument. There is a palpable lack of democracy about it and Senator Ryan may well be right that a constitutional challenge might lie ahead.
The advice of the Attorney General is not always infallible. I pointed out this morning on the Order of Business that if he gave the kind of advice that he was purported to have given he was wrong and events have proved that he was wrong. The advice that the Minister for Justice, Equality and Law Reform claimed to have received from the Attorney General was described as "guff" by a member of the Fianna Fáil Party last night in the other House. That raises certain questions about the quality of the advice that the Government is receiving from the Attorney General.
Be that as it may, Senator Ryan's point that the practice of introducing indictable offences by ministerial instrument rather than as a result of full debate and legislation in these Houses is important. It raises questions about the democratic basis of our institutions.
I support Senator Ryan's amendment and comments. We need to tread carefully on this issue. I am surprised that it has come this far in the legislative process without ringing alarm bells in the Office of the Minister of State or that of the Attorney General. We have an opportunity this morning to address this issue belatedly and should do so, rather than allow the courts to decide it, as will probably happen quite soon after the legislation is passed. Let us deal with it now when it is obvious that this is not the way we want to or should do business.
It is not proposed to accept this amendment. In a fast-changing dynamic industry such as the electronic communications sector it is important to be able to legislate in a timely manner.
That is very handy.
Senators raised the issue of delays in bringing forward primary legislation to give effect to the changes required for effective implementation in this sector on Second Stage. The new powers proposed under section 46A will enable the Minister to implement any changes to the regulatory framework in a timely fashion and to provide for effective penalties for serious breaches of that framework.
The framework was transposed in 2003 by regulations under the European Communities Act 1972 in order to meet the transposition deadline. This framework is already under review and the EU commissioner will be bringing forward proposals for the change to that framework later this year. Under this new power the Minister can implement any changes to the regulatory framework quickly and effectively to ensure that operators in the market comply with their obligations under the framework.
Senator Ryan raised the issue of fines. The proposed fines are proportionate in the context of the industry to which they apply. The major operators have a turnover of up to, and in excess of, €1 billion and if the penalties are to have a deterrent effect they must be meaningful.
As I expected, the Minister of State did not even condescend to mention whether the Attorney General had at least advised that this was constitutional. Maybe he did not so advise. The Office of the Chief Parliamentary Counsel makes mistakes regularly. I am tired of pointing out, and seeing Ministers have to accept, mistakes in legislation which obviously missed the eagle eye of the Parliamentary Counsel.
This is unconstitutional. The Minister of State is one of the nicest people in the Houses and I get on very well with him but the implications of what he has said are quite sinister. He says that he wants to deal with these matters efficiently and the Houses of the Oireachtas get in the way so he will bypass them. That is exactly what he said: democracy is inefficient; therefore we will bypass democracy. I may not be in the House by the time this comes to the Supreme Court but when it does it will be ruled unconstitutional.
Ministers cannot be given the power to rule by decree. In the past they have attempted to introduce major changes by decree. It is no excuse to say that this is European legislation. This country is gravely deficient in ways of dealing with such matters. This means that the Minister can introduce fines of up to €500,000 for individuals, leaving the corporate sector aside. Individuals do not have turnovers of €1 billion but they will pay large fines.
I do not propose to spend any longer on this matter. We have spent enough time fighting this morning. The Government is wrong on this issue. The advice is wrong and this is unconstitutional and will be so ruled when the Minister finally tries to punish somebody for outrageous behaviour. The case will go all the way to the Supreme Court where the Government will lose and fall flat on its face, as has been the experience of ComReg repeatedly in dealing with the telecommunications sector.
The Minister of State should put this into primary legislation. We will facilitate the Government if it is in a hurry. When it was in a real hurry last night it was well able to drive legislation through the Houses in no time. The reason for this provision is that scrutiny by the Oireachtas is a nuisance and a drag and every excuse is found to avoid it.
The Office of the Attorney General approved the text of the Bill as drafted and it proposed this mechanism for dealing with the matter.
It would do so, after last night.
Vótáil. No, I apologise. I did not intend to call a vote now.
The Senator called a division. I heard him distinctly. That is a shocking abuse of democracy.
This is a textual amendment made by the Parliamentary Counsel to ensure consistency throughout the section.
I do not expect to hear any more old guff out of Senator Ryan about procedural points after he has botched his vote in this scandalous manner. I am affronted as a democrat.
Amendment No. 5 arises out of Committee proceedings. There is a note on the Bill which I wish to bring to the attention of the House. A printing error has resulted in incorrect line references in page 49 of the Bill. The line references in this amendment relate to the number of lines of the text contained in page 49.
I move amendment No. 5:
In page 49, 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.".
To hear Senator Norris talk about old guff is a bit rich but we will leave it at that. He is a good friend of mine in spite of everything.
Maybe it is a case of aithníonn ciaróg ciaróg eile.
On Committee Stage one of my colleagues dealt with this amendment. This section provides:
"Offences in connection with telephones.
13.—(1) Any person who—
(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or
(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person—
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause,
commits an offence.
Who could argue with those points? Given the eloquence of the Minister of State's previous speech about the modern, forward-looking, communications-focused country, what would be more sensible than to look at the two most significant forms of communication, text messages and electronic mail?
