I welcome the Minister, Deputy Ryan.
Communications Regulation (Postal Services) Bill 2010: Committee Stage
Sections 1 to 5, inclusive, agreed to.
SECTION 6
I move amendment No. 1:
In page 9, subsection (1), between lines 15 and 16, to insert the following:
" "distribution centre" means the main hub location where efficient automatic processing of mail takes place in large volumes sufficient for the operation of a national mail collection and delivery network;".
The objective of this amendment is to ensure we will continue to have a clear definition of what is a distribution centre. The thinking behind the amendment is that we should establish the principle that there should be no distribution of mail below the level of such a centre. In order words, a private operator would not be able to seek to enter the marketplace and operate below the level of a mail centre. There are four automated centres in the country, the establishment of which cost the Exchequer €100 million and in which 2,000 people are employed. These primary hub locations must remain the centres of distribution. The objective of the amendment is to ensure a private operator would not be able to enter the market and cherry-pick below that level. In other words, an operator would not be able to agree a price for the distribution of mail from a smaller centre. To use the Athlone centre as an example, we want to ensure an operator would not be able to distribute mail from the central post office in Moate and have the most expensive part of the work done by postal workers there and in so doing avoid using the distribution centre through which all mail for the area must be processed. That is the reason I want to include the definition of "distribution centre" in the section.
There is an amendment in my name and that of Senator O'Toole to section 28. It seeks to copperfasten the concept embodied in amendment No. 1, namely, that we maintain the distribution centres and ensure that when private operators enter the marketplace, they would not be able to get An Post to make their deliveries at a special price from a location below the level of a distribution centre and thus prejudice the operation of such a centre and ultimately place An Post, the wider public service and the universal service obligation at risk. EU law requires us to introduce this legislation, but in so doing we must preserve the universal service obligation and the integrity, effectiveness and success of An Post. In other words, we must ensure An Post is fit to deliver a universal service and that business is not taken from it, which would make it impossible for it to continue delivering the service successfully. If private operators are allowed to cherry-pick centres from which it will be attractive to deliver mail because of high volumes and not to use the central post office system — comprising the four network centres — that will present a problem.
As I said on Second Stage, it is very important to preserve the universal service obligation. If one looks out the window today at the severe weather conditions, one will realise why it is very important there are postal service staff at isolated locations providing a very important social service in calling to people. I gather that on his radio programme on Radio 1 today Pat Kenny received many calls expressing gratitude to An Post for the social service it was providing in these weather conditions. That is worthy of mention. It would be wrong, therefore, if people had to collect mail at central locations. If it was not for the current system, persons in isolated areas could be lying dead for days in their homes without anyone knowing. Everyone has the same constitutional rights.
The amendment seeks to define "distribution centre" as the main hub location where efficient automatic processing of mail takes place in large volumes sufficient for the operation of a national mail collection and delivery network. That is where mail should be processed in the system, whether handled by the universal service provider or private operators. I also recommend the later related amendment to section 28 in my name and that of Senator O'Toole and others. I would recommend the inclusion of this definition in the legislation and ask the Minister to accept it as reasonable as it would provide the necessary reassurance.
While I thank the Senator for tabling it, I am afraid I do not propose to accept the amendment and will explain why. The term "distribution centre" is only used in section 6 which defines the terms "distribution" and "postal network". The term "distribution centre" is not defined in the directive and it is not proposed to define it in the Bill as it is unnecessary to do so. No decisions or actions are dependent on its definition. If we were to define "distribution centre", it could potentially be restrictive, as it is not possible to predict future work arrangements of postal service providers. As the Senator said, we will discuss section 28, under which there is a mechanism, where agreement cannot be reached on how access can be provided by the universal postal service provider, for ComReg to resolve the issue by imposing certain terms and conditions but in so doing to take reasonableness into account. It will be difficult for us to predict how the new postal networks will be configured in the future. If we were too restrictive, therefore, it might tie the hands of An Post or other providers in a way which would not be beneficial. As a consequence, I do not propose to accept the amendment.
There has been considerable investment in the existing centres — €100 million of State funds and personnel — and that is investment worth protecting. I appeal, therefore, to the Minister to consider this amendment on the basis that we should provide statutory protection for them. Access to the market should not be below the level of an existing centre, in other words, a smaller unit. While the position may change, it should not change to such a degree as to weaken the existing centres or make it possible to gain access to the market below that level. I will come back to this issue when we discuss section 28. I again ask the Minister to consider accepting the amendment.
Amendment put and declared lost.
As amendment No. 2 is consequential on amendment No. 3, they may be discussed together. Is that agreed? Agreed.
Government amendment No. 2:
In page 9, subsection (1), line 42, to delete ", subject tosubsection (2),”.
Section 6(2) which provides that the transport alone of postal packets does not constitute a postal service is being deleted, as it is not an explicit requirement of the directive. Furthermore, transport is only one element of postal services and included in the definition of the term "postal services" in the Bill. I hope on that basis amendments Nos. 2 and 3 can be accepted.
The Minister has made a valid point. It is not a service of delivery but of transport. It makes sense to accept the point he make in the two amendments.
Amendment agreed to.
Government amendment No. 3:
In page 10, lines 26 to 28, to delete subsection (2).
Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 to 13, inclusive, agreed to.
SECTION 14
I move amendment No. 4:
In page 16, line 7, after "Directive" to insert ", unless otherwise determined by the Minister".
This amendment concerns the involvement of the Minister in the consideration of directives. The reason for it relates to our experience in other places. I would like the Minister to think back over the discussions we have had in the past couple of years on issues such as the HSE and political accountability. The amendment concerns the division of responsibility and accountability and where the Minister sits in all of these arrangements. I am completely in favour of creating space, but in all situations there should be provision for oversight of the activities of anybody with responsibility. In a democracy, the only way to ensure oversight is by providing for political responsibility. I am not saying a Minister should micro-manage the work about which we are talking. What I am saying is that there are situations where directives might cut across Government policy or what the Minister might believe he or she stands for or might not be in the common good. Therefore, we should always include a fail-safe mechanism providing for the involvement of the Minister.
The relevant portion of the Bill states "The Commission shall be national regulatory authority for the purposes of the Directive." I am happy for it to be the national authority but there should be some political accountability. Why am I saying this? I have given the Minister the example of the HSE, and every week someone in the House questions whether it is right to give away all responsibility.
There is also the example of taxi regulation. We all agreed with the general purpose of taxi regulation when it was established. We found ourselves in a position not too long after this where the Taxi Regulator insisted that taxi fares be increased although the people in the industry were opposed to it. They felt it was bad for the industry and it did not make sense when there was less marginal income for people to spend. They were unhappy with many aspects of the issue. There was no way we could intervene politically and I cannot tell how many times this could happen. We could not see how that could happen.
I will use the Minister's own area as an example and deal with electricity prices. In the interests of regulation and competition, the regulator has decided the ESB should not be in a position to reduce prices to compete with other suppliers. I am not arguing the reasons for doing this as I understand them but there may be cases where such action as the regulator has taken would not be acceptable. The point is we gave away this responsibility and there is no political accountability. There should be a fail-safe option. I am not pushing the wording in the amendment but in the interests of how we do business in a democracy, the Minister should have the power to intervene in cases where he or she feels the issue is going the wrong way.
This is a logical position and the point could be argued for the importance of independent regulation. I am not trying to undermine that and I am not asking that Ministers micro-manage regulation. Neither am I asking that regulators seek the approval of Ministers. This is step down the line from that idea, meaning a Minister could intervene in certain cases. I am keen to hear how other Members feel about this but the matter is important and should be looked at again.
I agree with most of the points made by Senator O'Toole. The purpose of the amendment, as the Minister is aware, is to ensure the public continues to get an efficient postal service and that sustainable jobs are not undermined. The Senator is quite right on the regulation issue and he spoke about the taxi industry as an example. There is no appeal mechanism within that industry. I ask the Minister to consider the matter and include the wording in the amendment of "unless otherwise determined by the Minister".
Ministers now have very little responsibility in some of these areas and, when queried, many Minister's will indicate a matter should be dealt with through the regulator. I do not see much wrong with the amendment, and it would provide a necessary safeguard in that the Minister could be left to determine a matter. As an example, a regulator may seek to increase the price of stamps by 50% and nothing could be done about it because the decision is final. I would like some kind of safeguard whereby the Minister could adjudicate on the matter and which could be determined by him or her.
I support the comments of the Government spokesman, Senator Brady, on the issue, as well as those of Senator O'Toole. It is eminently sensible for the Minister to include an overarching authority in the legislation. Independent regulation is one thing but accountable regulation is another. I do not want to labour the point as the two spokespersons have expressed it adequately but the Minister should consider the matter seriously because it is in the public interest.
I support Senator O'Toole's proposition. We are not seeking to thwart the process of independent regulation but there should be ministerial oversight in order that the ultimate responsibility and capacity to interfere should rest with the Minister through the Oireachtas. Senator O'Toole makes the point well that we are not seeking a position where the Minister would interfere daily with internal rules or regulation or the achievement of proper standards. The Minister should have the ultimate responsibility and prerogative to intervene when appropriate in the public interest. That is a reasonable proposition which is an important statement for the future. I ask the Minister to take that on board.
I support the call for the Minister to have powers of oversight in this issue. With electricity prices we have seen how a regulator can have too much control for the sake of competition and attracting people from outside the country. Regulators are not elected and accountable to the people in the same way as a Minister. There should be some checks and balances built into the legislation to ensure decisions made by ComReg have appropriate oversight from the Dáil given that the regulator is not democratically accountable. To that end I suggest there should be an appropriate appeals mechanism built into the legislation to allow decisions made by the regulator to be challenged. I support the other Senators on the issue.
I do not propose to accept the amendment. On technical grounds, if the amendment were accepted, it would mean the regulatory system could be changed not by primary legislation but, in effect, by secondary legislation or ministerial order, which would be inappropriate. It is too significant an issue and primary legislation would be required if ComReg were not the regulatory authority or if it were done in a different way. It could not be done by secondary legislation or otherwise. That would be the effect of accepting the amendment.
From a strategic perspective, accepting the argument that Senator O'Toole and others have made, certain political oversight of a regulatory system is required to ensure there are checks and balances should it go completely awry from a political perspective. That occurs under the principal Act for ComReg from 2002 which follows the Minister to issue strategic policy directions to the regulator which would give the oversight sought by Senators. That must be carefully used as there is real benefit in having independent and non-elected regulatory systems. It has worked well in the electricity and communications area and there are sufficient checks to allow political engagement where necessary. By and large, much of this work is done better with an independent professional regulatory body with economic expertise which can make some of the judgment calls that can be difficult for a political system to do owing to burden of office.
The Minister makes valid points with which I do not disagree. I agree there are elements in the primary legislation and they have been brought to my attention. However, they do not meet what I am talking about. I agree completely with the Minister on the question of primary legislation and accept that the commission should be the national regulatory authority. That is not my point.
The following is the best analogy I can provide. The Bill transposes into law a European directive and the Minister has a significant input in this process. If my amendment is clumsily worded and gives the impression that I am seeking to change the authority of the proposed Commission for Communications Regulation to be the national regulatory authority, that is not my intention and I would be willing to change the text. My amendment relates to circumstances in which the commission will act in a manner which the Minister considers goes beyond what is required. As of now, the commission will not act under the direction of the European Union. In introducing the directive the Union has provided that certain requirements be met in respect of competition law and so forth.
The issue is one of democracy. While I acknowledge the two points made by the Minister, I ask him to consider circumstances in which his successor in office will take a completely different perspective from him, while recognising that European directives must be enforced, the commission is the regulatory authority and all competition requirements must be met. In the event that a future Minister takes the view that something goes too far, is too painful or being done too quickly, this is not covered in the primary legislation. While I do not seek a veto for the Minister, the circumstance I have described is not appropriate in a democracy. It is a subjugation of political responsibility in the sense that the commission will have authority which previously belonged to a political office. It is also an abrogation of responsibility by the Government.
I am seeking to find middle ground. I do not propose to give the Minister power to take any action which would be the function of primary legislation. I also recognise that the primary legislation gives the Minister certain powers and that the wording of my amendment may not be sufficiently precise. However, provision must be made to allow a Minister to intervene in this process in certain circumstances. I do not mind if this does not include giving a Minister a power of veto. However, it would be a great comfort to know that the view of the Government has been brought to the attention of the commission. If the commission were to choose to disregard ministerial advice, I would not like it, but I would be able to live with it.
This brings me back to the Ministers and Secretaries Act and the question of what precisely are the respective functions of Ministers and officials. If this legislation had been introduced 20 years ago, the matter would have been addressed in the Department rather than by a new commission. There is a good chance, in the light of current views on quangos and so forth, that this position will obtain again at some point in the future. If this matter were addressed internally, I do not believe an assistant secretary would deal with it without first running it past the Minister's desk. The provision is dangerous and runs counter to our function as parliamentarians and public representatives. We are pushing responsibilities down the line to someone else in a manner that undermines the democratic function. I cited the example of what approach would have been taken by an assistant secretary and a Minister in the past. To give a more modern example, if the Minister and I were chief executive and chairman, respectively, of a State body or board, the differences between both functions would be clearly understood. We would know what the Accounting Office would do and what, to use Civil Service language, the political master would do. The chairman speaks for the board and its responsibilities, whereas the chief executive speaks for the function and the executive which performs an implementation role.
For the reasons I have set out, it is not a good idea to remove authority and power from the Minister. It undermines the democratic process. I am not exercised about what wording is used. My concern relates to the principle of what is being done. While I do not disagree with the Minister's argument, I ask him to move towards a position that would accommodate my viewpoint, one that would not require him to micro-manage or undermine European legislation but would allow him to intervene in exceptional circumstances.
While I accept the Senator's point, the Minister, under the principal legislation of 2002, may issue a policy direction and has, therefore, a sufficiently strong tool available should it prove necessary to use it. While this power is rarely used, it is important if there is a fundamental point of difference on a policy matter as opposed to a judgment call on a commercial issue. If a Minister disagrees fundamentally with a decision the regulator or an industry or market is taking on a policy matter, a facility is available to make an intervention which has real power, effect and influence. A Minister would use such a policy direction sparingly. To go further and give the Minister power to remove the entire regulatory function would be a quantum step that would require primary legislation. The legislative provision is available to give the Minister the level of influence or control that should always be available in the background. The proposed amendment would go one step further. If we were to decide to remove the regulatory function from ComReg or any other regulator, the best means of doing so would be through a change to primary legislation.
I thank the Minister for his comprehensive reply and do not doubt his commitment to his argument. I do not propose to press the amendment. However, I ask the Minister to give consideration to my argument. I will read the primary legislation before Report Stage to ascertain if it provides leeway to act in the manner he described.
Every morning the Cathaoirleach reads out a list of matters that Senators have raised for discussion on the Adjournment. Certain restrictions apply as regards what issues may be discussed, for example, a Minister must have responsibility for the matter raised. The acid test for me with regard to my amendment is that the Cathaoirleach must not be able to state the Minister does not have responsibility for a matter a Member raises in connection with a directive issued by the commission. That will answer my question because it establishes the benchmark. On that basis, I ask the Minister to give the amendment some consideration. If he concludes it is possible to provide for a degree of amelioration or softening of the text, I ask him to propose an amendment on Report Stage. In the interests of making progress, I withdraw the amendment.
I too will read again the primary legislation between now and Report Stage. We will check that those valid controls are in place. I appreciate the Senator's point but, subject to reviewing the primary legislation, I will not accept the amendment at this time.
Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15
I move amendment No. 5:
In page 16, subsection (2), line 15, after "providers" to insert ", trade unions".
I am disappointed I had to table this amendment. I hope the reason will become clear as I make my case for it. The fact that I tabled the amendment means that certain matters are not being taken into consideration when legislation is framed. I do not necessarily point my finger at the advisers in the Minister's Department because this may arise among the draughtspeople or with the Attorney General. I cannot believe the Minister will disagree with me. This is a classic example of our doing things, asserting positions and establishing policy which everybody then forgets. This Government, the previous one and the one before that agreed that when we started to try to build a smart economy we would ask workers to bring their brains to work and we would listen to what they and their representatives had to say. Here, they have been excluded — that is the only word I can use. If no other names had been put down here I would not say they had been excluded but the procedures mentioned include "the opportunity for interested persons". I ask the Minister not to stand up and say that "interested persons" includes the unions. If the list had stopped there I would not have tabled the amendment. I do not want to have an argument about "interested persons". However, it continues with "representatives of the providers". IBEC, the business community and employer representatives are included in that provision. Somebody decided to include those categories. I hope it was not the Minister. I have no problem with their inclusion because I think it is correct they should be there when such a list is made. They have an absolute interest in being present and should be consulted. The list also includes postal service users. What is my view on that? I absolutely agree that the end users must be considered.
Where are we? We talk about the bosses and the users. The workers are in the middle but it does not seem to jump out that we should talk to them too. If the Minister intends to refuse my amendment I ask him to tell me how we have arrived at this position. How can workers' representatives speak to the workers about dealing with Government and the community, being fair and honest and giving their best, and why they should be committed to their service? Why should we have the Croke Park agreement in which we try to create efficiencies and make people do things better, more efficiently and cheaply, and all the rest of it? We talk about all these outcomes that should take place.
I am really disappointed by this part of the legislation and that is why I argue about it. If I had argued this point 25 years ago I would have felt maybe I have to make this case, but to have to make it now is incredible. The Minister and I argued in favour of the Lisbon treaty in various places, with all sorts of people. I wish to read from the Charter of Rights which the Minister and I assured nay-sayers was there for them, to afford them great protection and therefore was worth their support. I refer to Article 12: "Everyone has the right to freedom of peaceful assembly and to association at all levels, particularly in political, trade union and civic matters, which implies the right of everyone to form and join trade unions for the protection of his or her interests".
That is a European right. I wonder if those who framed the legislation read it. There is a wider question. Are the draftspeople required to bring such matters into consideration? Is that part of the process? Political parties at union level contribute to expressing the political will of the citizens. We had this discussion last week when Members questioned whether people should march on the Saturday and I made this very point. Political parties clearly use their political processes, channels and conduits to express their view correctly. Other people, for example, citizens and trade unionists, use different ways. If I must argue the point — I hope I do not have to — I shall refer to Article 27 which has for its heading, "Workers right to information and consultation within the undertaking". I shall read the article into the record. "Workers or their representatives must at appropriate levels be guaranteed information and consultation in good time in the cases and conditions provided for". In all fairness should I have to argue this point? I do not believe the Minister and I disagree on these issues.
I read through the legislation which seems to me to be a case of back to the future. This is where we are going — to ignore workers and tell them what to do, to talk to the bosses and the end users. It is about giving them a service and forgetting about the people in the middle. It is terrible that the legislation is framed in this way in the first place and it will be worse if the Minister does not accept this amendment. I have a sinking feeling about how we came to be in this position and that I had to table this amendment at this time.
I am sorry for ranting which is not directed at the Minister but at everything. I ask him to look at the amendment and respond to it by telling workers we value their viewpoint and we want to listen to what they have to say. We want to tell them that when we put a comment box in the corner for their comments on their way out on a Friday evening, or whichever evening, those comments will be taken seriously, and that if they express a view to their trade union that union will be consulted on matters arising, as they do here.
I strongly support this amendment. Yesterday I contacted the Bills Office to append my name in its support. Obviously, it goes without saying that trade unions and workers are important stakeholders in An Post and in the delivery of the postal services. We can be very proud of them, something I say in an unpatronising way. Our postal staff at local level and up the line, those with whom we come in daily contact, the postpeople, the men and women who deliver the post throughout the country, are an exemplary group. They do enormous service and act considerably beyond their defined duty, which is to deliver mail. As a representative of a rural constituency in Cavan-Monaghan, I have anecdotal evidence with which I could keep the House all evening, recalling tales of individual workers for An Post who have done jobs way beyond their call of duty. I know they are doing so this evening as they do every day of the week. I wish to say that to them, very unpatronisingly and this amendment gives me the opportunity to put on the record of the House my appreciation of them, as a representative of the community on which they impact so greatly. Their legitimate organised body, their spokespeople and their union should be part of any consultative process. I would like to think, charitably, that this has been a drafing omission of some sort and there was not a conscious decision to omit them. If there has been, that would be horrendous and unacceptable and would contravene every kind of right, whether rights accrued under the Lisbon treaty, constitutional rights or normal negotiation rights which to date are precedent. There are no grounds or criteria that would justify excluding postal workers, postal unions and the organised labour organisations.
Neither are there grounds that would justify excluding consumers, end users or beneficiaries of the service, the people on the ground who receive the postal services. They must be part of a consultative process and have every reason so to be. The people at post office level, postmasters and postmistresses throughout the country, must also be included. All people who have an involvement with the services should be part of a consultative process and should be consulted. I strongly support the amendment and have a real expectation that the Minister will accept it. It is not an issue a democratic assembly should be contemplating dividing on at this stage. It is a matter of simply amending the legislation or of receiving a commitment from the Minister to come back on Report Stage to so do.
I strongly support Senator O'Toole's amendment on including trade unions on the list of those who may make representations. Given section 15 is the provision which requires ComReg to consult publicly in performing its functions in regard to postal services, it seems extraordinary that the relevant unions are not explicitly included within the list of interested parties.
Senator O'Toole stated eloquently that we have a very well established principle of consultation with employees as stakeholders. Senator O'Reilly also spoke eloquently about the nature of the universal postal service and the enormous contribution to that made by the committed postal workers over many decades. The fact they are not specifically referred to as interested parties in this provision makes no sense. It is correct that representatives of providers of postal services and representatives of consumers — the postal service users — should be consulted, and we are all agreed on that point. There is an obvious third interested party which should also be specified, namely, the unions representing those who work within the postal service and make the universal postal service what it is.
We will come to section 16, which defines the universal postal service and to which we and others have tabled amendments. A large part of that definition is made up of the very committed women and men who have worked in the postal service and they deserve to be referred to specifically in terms of consultation with their representatives within the process.
I agree that trade unions should be included in the section. I was involved in the postal and telecommunications union and was president of one of the union branches. We had a scheme of worker participation which encouraged workers who were not trade union activists to participate in decision making, and there were suggestion schemes and so on. I am sure all of that is still in place. Since I left that business, the trade unions and management have a new label as partners, and they work well together to make decisions. There has not been a major strike in the postal service since 1979 when we were out for 14 weeks, as I well remember, and this gives some indication of the current position. Trade union involvement is seen positively by most employers because it is a stabilising factor and worker participation boosts the morale of workers in that they are involved in decision making in some small way.
I would like to think the omission was an oversight or that the Bill was written by some former regulator who was used to dealing with the hierarchy and forgot about the trade unions. I am sure the Minister will address this point. While it is not a big deal, it would be a mistake and could cause serious problems down the line with the trade union movement.
Post office users were referred to. At the time I worked in the business, there was a post office users council which members of the public could feed into. The council met every month and was headed by unions and management which worked together on various committees. This is to give the Minister a picture of how the process operated. If this reference was omitted, it would do a huge disservice to the unions which have played a major role in bringing the post office to its current efficiency level. I ask the Minister to consider the issue which I believe is caused by an oversight.
I add my support to the amendment and acknowledge Senator Brady's contribution from the Government side. In the interest of inclusiveness and good legislation, it is important we have proper recognition for all stakeholders, whether they be the service providers, those who work within the service or the service users. It seems an illogical omission, whether intentional or otherwise, but it can be corrected quite easily if the Minister accepts the amendment or agrees to bring forward an amendment that would include recognition for the postal workers.
I am not just arguing from the union side, and it is not just about workers expressing their rights as workers. The workers can bring a huge breadth of knowledge to the consultation process through their engagement with the citizens of this country, including their social knowledge. I argue that postal workers have as much social knowledge as any politician in either House because they meet the citizens of this country daily and recognise and understand the social needs of those people. It must be remembered that in the consultation process a large percentage of the end users, the people of the country, will not engage in the process at all. The workers would be in a good position to outline many of the concerns the public might feel. It is an important amendment concerning inclusiveness towards stakeholders and I hope the Minister will see fit to accept it.
Historically, Ministers are reluctant to name organisations in legislation wherever there is a relevance that they should be so included. I was somewhat surprised that two organisations are named in this regard. Looking back, the responses of Ministers have shown a reluctance to name such organisations and inherent in that response is the possibility that they might leave out some body. Moreover, it gives some wriggle room if bodies are not named.
I approach my question in the context of Senator O'Toole's point that he would not have tabled the amendment had it referred only to "interested parties". Why was it that the draftsman and the Minister's departmental experts did not stop short and simply state "interested parties" or "interested persons", which covers a multitude? One can argue until the cows come home, Uncle Tom Cobley and all, that there could be 50,000 organisations among those that have been named under the generic term of "interested parties". I am curious to know why it was decided that just these two organisations would be mentioned and why the Minister did not stop short and decide not to name any organisation.
I concur with the statements of the Government spokesman, Senator Brady, and the other speakers on this issue. As the issue has been raised, it is essential the Minister would include the trade unions. Had it not been spotted and raised, it might have been a different matter, but it would be quite offensive at this stage if trade unions were not at least given the same status in the legislation as the providers and end users. I worked as a temporary postman for long periods during my student years, and I worked with people who had great pride in the service they delivered. It is a great insult to them to have their organisation excluded.
I welcome the Minister. I was not a postman but I was Minister of State at the Department of Post and Telegraphs in 1982, although I never delivered a letter when I became Minister of State, which is neither here nor there.
He has delivered many of them as a Senator.
He is one of An Post's best customers.
We introduced the Postal and Telecommunications Services Bill in 1982 and I was in Opposition when it became reality. The Minister will probably be in the same position himself by the time we see this Bill go through and be finalised as we will be in Opposition.
I have a general question. Is there a deadline of 1 January for transposing this legislation? The Minister has much flexibility. I raised this matter with the Commissioner and he was very sympathetic towards the situation. It is in order for the union to make the point and in order that the amendment should be made, however the Minister can bring it about. It is vital that the voice of the union representatives is heard in regard to communications.
Who is delivering the post on this wintry, snowy day? Every delivery is being made today. The post was delivered in Castlecoote and throughout Ireland this morning in spite of the snow.
The Senator should name the postman.
The postmen are represented by the CWU.
With regard to the transposition of regulations, we are in a unique position. Ireland is an island off an island off mainland Europe. Whatever position the Minister decides upon in the interests of the Irish people to guarantee the continuation of a universal postal service must be adopted. The European Union is not checking every line in this regard. It has no control over this legislation as far as I know. It is a question of transposing an EU regulation into Irish law.
This is only the start of this issue. I hope the Minister has more success than we had in regard to the banning of the eel fisheries which led to a closure for 90 years. This is painful in so far as my area is concerned. That represented very extreme transposition of EU regulations. In the circumstances that obtain, the Minister should accept the phrase "trade union" or "union representing the workers".
In supporting my colleagues, it is important that I include the trade unions to give proper recognition to the people who actually know the business. They have 100 years of experience representing their members. We do not want to make the mistakes made in other countries. Owing to our unique position in Ireland, we should take cognisance of the fact that we have a lower population per square kilometre than in other European countries, amounting to approximately 58 people per square kilometre as opposed to 140, 160 or 200 people per square kilometre. This reflects on the economy of the postal service. We must be very careful, therefore, in dealing with this Bill to ensure we do not encounter the same difficulties that arose in other European countries. If we do, we will have circumstances similar to those that are obtained in respect of the Royal Mail in the United Kingdom. There is talk in the United Kingdom of selling off the business on the basis of it being unprofitable, but the reality is that all the businesses floated in the United Kingdom, including British Gas, were profitable. People will only invest in entities that are profitable. Where a business is losing money and it has a large pensions deficit, the public will not buy into it. We are heading in the same direction.
The spatial settlement system in the State is almost unique in Europe. In France, for instance, farmers normally live in their local village. Even when one enters a rural area, one is entering an area in which people and settlements are centralised. In Ireland, almost uniquely in Europe, people live on farms in remote locations, adding to the difficulty. We will need to go through the legislation line by line to ensure, in the first instance, that those who enter the market will not cherry-pick the best business and allow An Post, a very stable and necessary business with a social function, to deteriorate. We must not allow that. This is why I believe every section of the Bill will be questioned today. The trade unions that know so much about the postal business must be included specifically.
It is rare that I stand up and praise unions but on this occasion I must state the CWU has given us a very fair and level briefing on the Bill. Even if it never gave the briefing, I would agree with what it is saying. The universal service obligation must be protected absolutely. If the market is to be opened up, it should only be on the basis that every other provider meets the same universal service obligation requirement. Otherwise, one would not have a level playing field.
The main concern of the union in representing its members, the postmen, is that businesses will enter the market and cherry-pick. We could have a great service in towns and urban areas and an unreliable service or none at all in rural areas. This occurred with health care. This is why universal health service provision, as outlined in Fine Gael policy, represents the way forward. We must push for this for the postal service. The postal service has an amazing social function. The postman is sometimes the only caller people in the most rural and isolated areas have in the day. We must protect the valuable service provided by the postman by way of delivering messages, communicating and offering a lifeline.
We do a lot for profit but this legislation could make An Post very unprofitable. It is just making €5 million per year but it employs 10,000 people. In Galway city and county alone, 500 postpersons are employed. The CWU and other trade unions have played a very valuable role in this regard. Their voice is highly regarded and their case is well put. We need to be careful about disregarding them.
If we learn anything from the Minister's tenure in office, it should be that it is important to engage in consultation. I say lightly and with a smile that one of the strengths of the system in the past decade has been social partnership. Some on this side of the House would not agree with that. If we are to learn from social partnership, we should learn that one must bring people with one. This means engaging with them, participating with them and giving them a sense of belonging. I am concerned we will end up with a botched job. I am genuinely concerned because, as Senator Coffey said about social and community knowledge, we must have ownership of our postal service.
I am not afraid of competition or introducing it but I am afraid we will have a model that will be broken. We could end up with that. I do not have much confidence in the ability of this Government to do anything right at this stage. I do not fly a flag for any union but know from community involvement and reading representations given to me that we must travel in partnership. What is the guiding principle of the Minister in this regard? Why is he reluctant to have real engagement? One size does not fit all. We have a very good postal service and a committed workforce. Were this to change, there could be a very different output, which is not what is desired.
I am in a difficult position in that I am in the presence of a former Minister of State, former union official, former temporary postman and former chairman of An Post — God Almighty.
I am also a former temporary postman.
At least the Minister came to the right House for advice.
There was no attempt at exclusion in the wording of the legislation. I listened to what Senators had to say. I will give a commitment to return to the Office of the Parliamentary Counsel to discover if it might be possible to include a wording which recognises that it is important to listen to the employees as well as the users and the companies involved. I will, if possible, try to obtain such a wording from the Parliamentary Counsel but it might not necessarily be that which is contained in the amendment. Subject to a wording being forthcoming, I hope to be able to meet the concerns of Senators on Report Stage.
I thank the Minister and accept his intentions and goodwill. I will withdraw the amendment and I look forward to seeing the new wording on Report Stage.
I welcome the commitment given by the Minister. I know he is an intelligent person, having worked with him on Dublin City Council. I thank him for taking this course of action because amendment No. 5 is probably one of the most important in the context of the entire Bill.
On behalf of my party, I acknowledge that the Minister is going back to the drawing board in respect of this matter. I take on board what he said. The approach he has adopted is appreciated because there is no logic in dividing the House in respect of such a central issue.
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16
Amendments Nos. 6, 7 and 10 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 16, subsection (1)(a), lines 27 to 29, to delete all words from and including “except” in line 27 down to and including “exceptional,” in line 29.
I had a discussion with Senators O'Sullivan, Mullen, Norris and O'Reilly with regard to these amendments. It is obvious that when one looks out the window of the Chamber, one can see the type of exceptional circumstances to which section 16 refers. For that reason, I do not intend to move amendment No. 6. I accept that today is one of those days in respect of which one could not insist that post be delivered.
The Senator has already moved the amendment.
I will withdraw it then.
As it is part of the group of amendments being discussed, it cannot be withdrawn at this point.
That is fine. Amendment No. 7 relates to a matter that goes to the heart of the rural postal service. Section 16 states that universal postal services means, "that on every working day, except in such circumstances or geographical conditions as the Commission considers to be exceptional, there is at least ... one delivery to the home or premises of every person in the State [everyone agrees that this should be the case] or, as the Commission considers appropriate, under such conditions as it may determine from time to time, to appropriate installations". In other words, one delivery will be made to the home or premises of every person or to appropriate installations. Effectively, this means that post will not be delivered to the home or premises of every person in the State.
I wish to be clear with regard to what is intended in this amendment. In apartment complexes, all of the post boxes for the various dwellings might be located in the lobby area or on the outside, a couple of yards away from the front door. I do not have a difficulty with that. However, the way the section is worded appears to indicate that people may find in their post boxes notes directing them to collect their post at local sorting offices. Amendment No. 7, about which I feel strongly, is designed to ensure that the universal service obligation will be maintained. That obligation cannot be maintained in circumstances where a person might decide that instead of delivering a letter to a Mr. Leyden who lives at the top of Slieve Bawn, the latter can collect it at the post office in Strokestown or wherever. We do not want an arrangement of that type to apply.
I am seeking protection in respect of the universal service obligation. On the other hand, I have no intention of being ridiculous. Many apartment complexes and gated communities have blocks of post boxes located either inside or outside the front entrance. I am not objecting to that. I am, however, objecting to the way the section is worded because it could mean anything. In particular, it could be interpreted to mean that post does not need to be delivered to a person's home or premises, which was always what was intended under the universal service obligation.
The wording in the section must be tightened. I am sure the Minister will explain what is intended but under the relevant provision, as drafted, universal postal service means one delivery to the home or promises of every person in the State or to appropriate installations. That is far too vague and it represents a diminution of service. Under the section, there would certainly not be a universal postal service and the type of service we discussed earlier, which Senators and the Minister value, would definitely not be provided.
I propose that the section should simply read "one delivery to the home or premises of every person in the State" because that is what the universal service obligation entails. Unless someone is in a position to convince me otherwise, I am of the view that this is what was always intended in respect of the universal service obligation. I am certainly of the opinion that the European directive envisages a delivery to each person.
A man who delivers post in Donegal was interviewed on radio this morning. This matter relates to a community service which displays the State in action and engaging with the community. It also relates to the kind of service that was envisaged by Europe and that we need to protect. There has been much discussion about Europe in recent weeks. What is involved here relates to Europe protecting a service which national governments might be tempted to diminish. This is, therefore, something emanating from Europe which we would welcome. The section, as drafted, provides a lever to create space and reduce the impact of what was originally intended.
I ask that the Minister either accept amendment No. 7 or indicate how my concerns might be met in some other way.
I agree with the previous speaker. The section should read "one delivery to the home or premises of every person in the State". Will the Minister indicate what constitutes an appropriate installation?
There are certain circumstances in which a postman or postwoman may not be in a position to deliver mail each day. In the first instance, a postman or postwoman is not legally obliged to deliver mail if a dog which he or she considers to be dangerous is at large. In addition, if a packet does not fit through someone's letter-box or into their post box, it must be brought back to the post office. When I was involved with An Post, a postman or postwoman who could not deliver an item was obliged to return on the two subsequent days to try to deliver it before leaving a note for the addressee advising him or her to go to the post office to collect it.
It is not possible to guarantee that everything will be delivered, particularly in light of the examples I have outlined. A common sense approach is, therefore, needed. The phrase "as the Commission considers appropriate" is used in section 16. Why should the Commission for Communications Regulation consider what is and is not appropriate? Is it the case that if it is raining or snowing heavily or if it is extremely frosty, then post need not be delivered? That just does not make sense. How and when would the commission make decisions in this regard? Who in the commission will be responsible for such decisions? The relevant provision is nonsense and I do not know why it is included in the Bill.
The general thrust and purpose of these amendments is — while accepting the diktats of Europe and the requirements of the relevant directive — to preserve the universal service obligation that applies in this country. In other words, our aim is to ensure that, with no exceptions, people's post will be delivered to them each day regardless of where they live. That is what we are trying to achieve. We are concerned that the subsection with the wording, "or, as the Commission considers appropriate, under such conditions as it may determine from time to time, to appropriate installations", could be used to the detriment of the universal service to require people in a given area, such as the residents in an isolated rural area, to travel to a central point to get their post. That is unacceptable. That should not be allowed. It would go against the spirit of the universal service obligation and would be against the rights of the people in those areas. Gradually, as one diminishes a service, the diminution continues. If it becomes all right one year not to deliver to a person because he or she lives at the back of a mountain, the next year it will become all right not to deliver to people who live close by and so on until, eventually and by extension, people go to a central location for their post.
We spoke about the considerable advantage of and social service provided by the postperson coming to the homes of people and going up boreens and meeting people. Sometimes they are a person's only visitor. This is not merely about letters. It is about a communications network and support system. Senator Coffey stated earlier that any postperson in the country is as knowledgeable about his or her community as many local politicians or social workers, and they provide multiple functions. It is important we preserve that.
My party believes this part of the Bill could be used wrongly. It is worth saying that neither an official in the House nor the Minister decided this morning to thwart the service by providing this in the Bill, but that could be the outcome. As we have drawn the Minister's attention to it in the interests of improving the legislation, we appeal to him to withdraw it and leave the matter as it is.
The Minister need have no fear that when exceptions arise and when human difficulty arises, these will not be long being identified and acted upon anyway. The reality is that on a given day where there is a large dog somewhere, there are shocking weather conditions or whatever, people will use their discretion. That level of discretion is fair enough but one does not want to give a hostage to fortune. This part of the Bill runs the risk of being a hostage to fortune if it is left as it is. It could allow commercial operators to pretend to provide a universal service but instead asking unfortunate people to go to a central area to collect their post. We do not want that. I think no one in the House would stand over that.
I share the distinction with Senator O'Sullivan of being a former part-time postperson. The Minister has another expert.
Although I have never been a postman, I have certainly delivered lots of leaflets to many houses and I understand the issue to some extent.
Had Senator Hannigan a licence?
In amendment No. 10, my party seeks to extend the definition of the working day to include Saturday if the commission so decides. That is to enable postal deliveries throughout the State on Saturday at some future date.
On the issue of the definition of "installation" raised by the other Senators, including Senator O'Toole, the Bill could benefit from clearer wording. I say that as someone with some experience in the matter. I live in an apartment block in Dunshaughlin where I get my post, not in the front door but down in the foyer, and I have no difficulty with that. I am aware of the situation in other countries. For instance, in Toronto in Canada, as the Minister will be aware, the post is not delivered to one's front door or the front door of one's apartment but to a central point on the street where every house on that street has its own mailbox. While it makes it more efficient for the postal delivery worker, it makes it difficult at times for local residents to collect their post because they must leave their house, go down the street, open their box and take out their post. On days of inclement weather such as this, it is not easy to do. We need to be clear about the type of installations the Minister has in mind. Does he mean something which could be quite remote from the home and, if so, is there a limit in his mind as to how far away it could be, for instance, 10 m or 100 m down the road? We could benefit from some clarity. I have no issue with such deliveries if it is an apartment or if it is just outside the front door——
That is not workable.
——but we need to be clear about how far the Minister sees this going.
These are important amendments which go to the core of some of my concerns. A universal postal service should mean what it says. It is stated in section 16(1)(a) that it is conditional on the interpretation or understanding of the commission.
On the reference to geographical conditions, we would all understand there being a difficulty with deliveries or collections due to weather conditions or whatever, but that should not be stated in the legislation. That should be left to the discretion of the service providers, assuming that is the intention of including the wording in the Bill. My interpretation of the phrase "geographical conditions" would be the geography of the country, the hilly boreens and mountainous areas where people live. I am concerned if this wording remains in the legislation that it could be interpreted by a commission based in Dublin to the detriment of those rural dwellers who live in remote geographical areas. If the wording in the Bill is left unamended, it leaves the door open for the service to be cherry-picked by future service providers. Only large urban areas and, I suppose, areas with many dwellers will be cherry-picked. We must remember that more than two thirds of Ireland consists of rural areas. There are many difficult routes in remote areas that postmen navigate to get to residents. If this legislation goes through as drafted, it will deprive those rural dwellers of a basic entitlement to universal service. That is my concern.
The Minister should remember that many rural and farming enterprises are located down boreens or country roads. If the service to them is diminished in any way, it will be to the detriment of many of those businesses. People who operate businesses depend on the postal service which, we must acknowledge, is one of the successes of the State's systems. People can depend on their postman calling every day and they can depend on their post being collected at the recognised collection points.
Good points are being made by Senators in the debate. I have serious concerns about the area of interpretation and giving the power to the commission to decide on geographical conditions and appropriate installations. Such terminology is too vague and leaves the door too open. Rural areas will not be serviced well if this goes through. For example, a year and a half ago I was contacted by constituents in rural east Waterford when An Post made a unilateral decision to close one of the oldest post boxes in the country. When the people of that area discovered it was closed, there was uproar. I am glad to say that when representations were made, common sense prevailed and the post box was reinstated. That is how much it meant to those rural constituents because here was a regular post box in a rural area with a recognised collection.
We are going down a dangerous road if we leave it up to a commission based in Dublin to decide what postal services will remain open and what geographical circumstances will allow the service to be operated daily. I ask the Minister to think closely with his officials about the wording of this, as we cannot afford to pass legislation that will deprive large areas of the countryside and citizens of a service on which they have come to depend.
The points being made are very good. The Minister has declared that he is in favour of a universal postal service and that this is his motivation. The aim of everything being said is to strengthen this position. Frankly, he would have been better off if he had introduced the Bill six months ago because I see eight candidates in the Chamber and he has seen nothing yet. Representatives of the Communications Workers Union are in Buswells Hotel at present, with every other candidate. I can tell the Minister for a fact that this will be the major issue in the final days of the Dáil because it is absolutely crucial. I can also assure him that every postman in knocking on every door will know who voted for the Bill.
I have experience of working in the Department and enormous progress has been made in An Post, particularly with regard to its distribution centres. They are absolutely phenomenal. I worked at the Department when the centre in Sheriff Street was in operation, when the Minister was a child. In Sheriff Street a bar was open all day and all night. Senator Quinn knows this because he was chairman when I was at the Department.
What amendment are we on? We are not dealing with bars now but postal services.
I will finish my point. I said to some employees that it was very strange that they had a bar where they worked and was told that there were two where I worked.
I ask the Senator to stick to the amendment. We will be here until the election after next if he keeps going like this.
In that regard, the wording is careless and reckless. The Bill reads, "on every working day, except in such circumstances or geographical conditions as the Commission considers to be exceptional". I would prefer if the reference was to the Minister. I have no faith in any commission which does not have political responsibilities or is not under political control.
Hear, hear.
This provides a way out; one could state the Aran Islands are a long way off and that as there is no boat service, deliveries cannot be made and they will be excluded from the contract. Those who will cream off this business will go for major towns and cities and to hell with rural areas. That is why the union is very concerned and why I ask the Minister and his officials to look at the drafting of the section.
The section also reads, "one delivery to the home or premises of every person in the State or, as the Commission considers appropriate". The commission may decide it is not appropriate to deliver five days a week.
Correct.
It may decide it is not really necessary to deliver in rural areas at all because they cannot be reached. It may decide to charge 75 cent per stamp for any letter to be delivered outside Dublin, Waterford, Cork or Kerry.
The Senator is speaking sense.
That is what this is all about. We have to make sure we protect the service. Whatever action needs to be taken by the Seanad, let it be taken. If it is not taken here, it will be taken in the Dáil. I tell the Minister that he will be lucky to get this through before he completes his term of office.
I share the concerns expressed by other Members, in particular about the unintended consequences of the phrase, "except in such circumstances or geographical conditions as the Commission considers to be exceptional". This means the commission could change the intention of the law which states the universal service provider must provide a service five days a week. I know this is not the intended consequence, but we could allow in law the commission to make this decision. This should be a matter for law only, which cannot be changed. I ask the Minister to review this decision.
I echo the sentiments of my colleagues on what the commission might consider to be appropriate. This is what I spoke about previously with regard to areas that would be difficult to get to and in which a service would not be cost-effective, leading to the cherry-picking of urban areas. Like other speakers, particularly Senator O'Toole who spoke about the NRA, the HSE and other such bodies not answerable to Ministers, I have very serious concerns about what the commission might consider appropriate. We have had very bad experiences with such bodies. Will the Minister, please, reconsider the section?
Senator Leyden never ceases to amaze me with his ability to speak in support of a Bill and against the Government and still vote for the Government.
Ingenious.
I agree with him that it is important——
We are discussing amendments Nos. 6, 7 and 10 to section 16.
Yes, I am discussing them. It is important that we protect the service. I am concerned about the commission and its interpretation or its ability to interpret. Senator Coffey was not wrong in the point he made. The headquarters dealing with rural areas might be found on Mount Street or Ely Place. I was in Ardara, County Donegal for the by-election and some of the townlands in that area——
Not very successfully.
Better than the Senator's party.
Members, we are dealing with a very——
Our vote did not collapse by one half and we did not come third.
I ask Members to respect what is a serious Bill by having no interruptions or not engaging in smart-alec talk across the floor.
I was tempted by it.
It is not acceptable. We are dealing with serious business. The Minister and his officials are present and I will not put up with this across the floor.
I accept Senator Leyden's apology.
I did not apologise.
We are discussing amendments Nos. 6, 7 and 10.
The Cathaoirleach is correct; this is an important Bill which is why I was making the point about Ardara where, in many cases, the postman or postwoman is the only person the mail recipient meets, sees or speaks to.
What does the Minister mean by "geographical conditions"? Today there would be no difficulty if mail was not delivered because one would not expect somebody to go out on in such conditions. However, does the Minister mean a geographical spot on the physical landscape such as an area off Kilmichael such as Tirelton in rural mid-Cork?
To return to what Senator O'Reilly spoke about with regard to what is an appropriate installation, are we speaking about stopping service delivery and a person having to get into a car or on a bus to go to a mailbox or post box in a post office like they do in the United States? Senator Hannigan spoke about the foyer of his apartment block; we do not expect a postman to go into every apartment complex and hand-deliver to every mailbox as, in some cases, the management fee covers the sorting and distribution of mail. I seek clarity on what is meant by a universal postal service. Senator McFadden rightly spoke about cherry-picking. The ambiguity is frightening and worrying.
The Minister also brings to the Bill the issue of weight and I am curious to know why that is the case. On occasion, one receive a card through the door stating one's mail is available for collection in the local district office if the mail is of a particular weight. Why is this mentioned in the Bill?
I am anxious that the Minister give a commitment that delivery to homes will continue. It may not be the case in Cork city or south Dublin, but in rural Ireland, in particular, it is very important that the service is continued. I look forward to hearing the Minister's response.
I am afraid it is not proposed to accept the amendments and I will set out some of the reasons. Section 16 reflects Article 3 of the directive and sets out the minimum scope of the universal postal service, the essential element of which is collection and delivery to every home and premises in every corner of the country on each working day. It is very clear on the minimum standards that must be met by member states but in a realistic manner, recognising that, in certain cases, there may be exceptional circumstances where it is not always possible to do this. For example, alternative arrangements may be made for island deliveries or other areas for geographic or other reasons. ComReg is charged with ensuring that the universal postal service meets the reasonable needs of users and it is necessary for it to have flexibility to ensure that provision. In that regard, section 16(7) requires ComReg to have regard to "the reasonable steps a universal postal service provider may be required to take in order to meet the reasonable needs of postal service users, including ease of access to homes or premises and the health and safety of employees". It is appropriate that ComReg carries out that assessment.
There appears to be some confusion and it seems that Members feel we are making major changes or that this is all new legislation. That is not the case. The proposed amendments would remove flexibility ComReg already has in current regulations, namely, the regulation of postal services, SI 616/2002, and the European Communities (Postal Services) Regulations. There have been several instances where people have applied for derogations, but ComReg has not given a derogation or permitted a variation. Therefore, there is nothing new in the proposed Bill. It simply replicates what exists in current legislation. At the same time, we need the flexibility and assessment that ComReg would provide with regard to how to supply the universal service that would at the same time be subject to certain conditions and delivery arrangements in certain geographic circumstances. Any derogation would have to be done on a class basis rather than a one-off basis. Therefore, we would not have a universal service and say "except for that house". Any derogation would be done on the definition of a class, which would be sufficiently precise so that it could not be argued that the effect of the derogation was to rewrite the legislation. That is the context for this section. People may feel there is a major change in the section, but there is not. We are just replicating existing regulations and giving the ongoing powers to ComReg to make sensible decisions around how the universal service is provided.
It is not proposed to accept amendment No. 10 because the directive requires member states to take steps to ensure that a universal service is guaranteed not less than five working days a week, other than where there were geographic or other circumstances which would allow for an exception to that clause. Section 16 of the Bill sets out the scope of the universal service and provides for the collection and delivery of mail to every house on every working day. That working day is defined in the Interpretation Act 2005 as a day which is not a Saturday, Sunday or public holiday. Therefore, it is not appropriate for us to require ComReg to amend what is provided for in primary legislation. The wording in the directive that it be "not less than five working days" stems from the fact that a number of member states provide for a six-day service. It should be noted that there is nothing to prevent An Post, or any provider designated in the future, from providing a Saturday service. Indeed, An Post frequently provides such a service, for example, at Christmas time.
I hope I have reassured Senators that this section does not seek to make a major new change. It simply recognises the existing powers ComReg has and replicates them within the context of the new directive, which still requires the basic components of universal service provision as exists today.
I thank the Minister for his clarification regarding the existing legislation. However, what he has said does not yet reassure me that the Bill as presented will not change the existing levels of service for people in rural areas. I accept there may be geographic conditions affecting islands and similar places. However, we have a system that works and is not broken. It is acknowledged by all and sundry that the system works and serves the community well. Can the Minister assure the House that this Bill will not change the existing levels of service for rural dwellers?
The Minister did not acknowledge in his response the concerns expressed by Senators regarding the diminution of service in rural areas. That is the nub of our concern. If the Minister can alleviate that concern, we will succeed in getting the legislation passed more easily. However, I have not got that reassurance from the Minister.
I listened carefully to what the Minister said. As I said, I do not intend to push amendment No. 6 because it does not quite meet what I intended. I agree with the use of certain "weather" as opposed to "geographical" conditions. I now intend to bring forward a different amendment on Report Stage. This amendment will recognise the points made by the Minister and recognise some conditions will be relevant.
We need to go back to what the Minister said about the importance of primary legislation. This Bill is the primary legislation. The Minister said to me that we should not try to undermine primary legislation by asking the Minister to regulate or interfere. Similarly, I hope he will accept that he has mentioned other directives and regulations. This is the primary legislation so we should not use the subsidiary position in order to defend it. I would like to deal with the issue of a universal service and to do that I suggest we look forward to section 18 of the Bill, page 20. It states:
A universal postal service is required -
(a) to provide a universal postal service ... subject to the interruption, suspension or restriction otherwise of all or any part of the universal postal service in cases of force majeure.
The point was made by Senator Brady that issues will arise where it is above and beyond the ability of anybody to provide a service. I would like the Minister to explain the connection between these two sections. Section 18 is there to deal with the interruptions or suspensions that can happen for reasons which can be put down to force majeure. I recognise that force majeure is not defined in the Bill. Something else that is not defined in the Bill is “installation”. I do not know what is meant by “installation”. Perhaps my concerns, as indicated in amendment No. 6, could be dealt with by a definition of “installations” being included in the definitions section. If it simply means a road side letter box outside a front gate, that will not be a cause of concern. However, if it means it is something to which one will have to travel to another town or place to access post, I am opposed to it. As used in the Bill, there is no explanation for the word “installation”. I imagine the Concise Oxford Dictionary would have ten pages on that word. I am not one to run to a dictionary just to support an argument, but am just concerned with the legalities. I do not know what is meant by “installation” and would like that clarified in the definitions of the Bill.
The Minister mentioned "islands" but I do not really understand what exactly he meant. What my amendment tried and failed to achieve could possibly be achieved by including the word "reasonable" to qualify the service, that it would do all that was "reasonable" and by replacing the word "geographical" with the word "weather". In other words, the service would do all that is "reasonable" and we would not expect it to deliver post daily in Inishturk if the boat only goes to Inishturk three days a week. However, I have concerns if the section means something else. I do not know what it means. If somebody wanted to establish himself in a hermitage on top of Croagh Patrick, I would not expect his post to be delivered to him every day. The issue is reasonableness. However, the Bill as is written leaves itself open to all sorts of interpretation.
We are talking about people who will be coming from outside to provide a cheap service at a cheap price. It will be a yellow pack job. If those people can find loopholes in the legislation to help them make more money, even if it means a diminution of the service, they will do that. I intend to return to amendment No. 6 on Report Stage so we can take on board the issues raised by Senator Brady and others and the issues raised by Senators O'Reilly and Coffey. We know what we mean and perhaps there is not a great difference between the Minister and us, but the Bill as written could be interpreted in a way that would not suit what the Minister requires. I will revisit that issue on Report Stage. On amendment No. 7, the Minister has not given us any comfort about the meaning of "installations". Is what he claims he is trying to achieve in section 16(1)(a) not covered in section 18 and, if it is not covered or if it is replicated, should we not be worried that it is left open to a loose interpretation?
Senators on this side of the House are uncomfortable with leaving the wording as it stands. We are concerned that the provision may be used to undermine the principle of a universal service at some point in the future. In order to make a fast buck by providing a cheap service, it may be decided to require people from a dispersed community to get their post from an installation, that is, a post box in a fixed location.
The traditional way of life in country areas has been eroded. Post offices and Garda stations have closed and rural Ireland has been denuded of services. As we become more urbanised and removed from country living, the day may come when a commission considers it appropriate to restrict postal deliveries to a couple of days each week during the winter months or decides that certain geographical terrains do not merit delivery.
In his very competent contribution, Senator O'Toole spoke about force majeure. I assure the Minister that postal workers are braving the elements to deliver letters all over the country today. They would be horrified if they thought we were making legislative provision for them to do otherwise. Discretion will, of course, apply. If a road is physically impassable, a postal worker will not drive up it. If the seas are too rough on a given day to travel to the islands, deliveries will be delayed. A wild dog may prevent the postman from walking up a long bóithrín. Issues of force majeure will arise in practical situations but common sense will apply.
I do not question the Minister's bona fides but I doubt the wisdom of his answer. I am concerned that the section will be used cynically or for sinister purposes against the principle of the universal service obligation. We do not know what actors will be on the stage in the future or what their agendas may be. The desire for a quick buck could be the dominant motivation for a private operator who wins the franchise. An Post could perhaps come under serious financial constraints and, in order to achieve efficiencies, decide to deliver to a post box rather than to houses in certain locations. The universal service would then be thrown out the window.
The issue of weather is nonsense because common sense will apply. Postal workers try their best to deliver and it is seldom they are not successful in doing so. We should stand in awe at their efforts over the years.
We do not want to be remembered as the Legislature that presided over the end of the universal service or gave gangsters an opportunity to denude the people of a service for financial expediency. God knows, the people of rural Ireland whom I represent have suffered enough cutbacks in terms of closed Garda stations and post offices. We should not consider further cutting rural services. We need a vision and a value system that recognises the people who live up a bóithrín in Killinkere, of which Senator Brady is one of the most distinguished former residents, have the same right to post as the residents of Dublin 4. They have the same right to have it delivered efficaciously and with good humour as if they lived in Dublin 4. If there is a major physical obstacle to delivering the post, the postal worker will clearly use his or her discretion. Common sense has applied in these matters since time immemorial. I appeal to the Minister to reconsider the amendment because I do not accept his response on it.
This is an interesting debate. I am reminded of the turf cutting legislation passed in 1998, which gave Ireland a ten year derogation. In this case, one could argue that we have a seven year derogation. Senator O'Toole raised an important point in regard to the definition of "installations". In seven years' time, I fear we will be blamed for passing legislation which results in the reduction of services to the islands and in installations being located at the heads of roads. I am disappointed with this aspect of the Bill. The form of competition now being proposed is not designed for our small economy and rural population. If we had a semi-State company which charged only as much as it needed to provide a service, would the Competition Authority play a role? An independent European committee should be established to benchmark the service provided in Ireland against jurisdictions in which competition exists before we legislate for multiple providers.
Several years ago, when banks were opening left, right and centre, I suggested there were too many banks. I was told I was off the wall because supposedly we needed all the banks to ensure competition. We may now be left with only one bank, in which case there will be no competition. What could the regulator do about that? Would the State be required to set up another institution in competition with itself?
I support Senator O'Toole in regard to the definition of "installation". Before we proceed further, we need to deal with the core question of where installations will be located. Will they be located at the heads of roads or may people even be forced to drive to their local towns to collect their post?
Senator O'Toole raised an issue about primary and secondary legislation. Effectively, we are reinforcing the arguments I made earlier by translating a statutory instrument into primary legislation. That is appropriate. We have the opportunity to do that in this legislation, although it is not at its core. We have not the changed the wording or the arrangements, whereby ComReg considers what are the common-sense arrangements in terms of delivery. We need a mechanism, whereby common sense will be applied, as it has been for the past eight years since the statutory instrument was put in place. We are simply providing for a transformation of arrangements in moving from a statutory instrument to primary legislation. It would not be appropriate for us to change the nature of the common-sense arrangements in place under the statutory instrument. It would also not be appropriate to amend it. It is better to leave the arrangements in place which have worked and which I am sure will continue to work on a common-sense basis as they recognise the social importance of having a postal service in rural Ireland. It would be inappropriate to change them because, at least, we have a precedent and an example which have been developed over time. We should, therefore, maintain the provisions, as set out, on that basis. The provisions are sensible in terms of working day arrangements and definitions. While I hear what Members are saying and understand their concerns, they are misplaced in this instance because all we are doing is translating from secondary to primary legislation the existing arrangements for considering the provision of such a universal service.
What about the installations?
There is a difficulty other than the obvious one with the wording "except in such circumstances or geographic conditions as the Commission considers to be exceptional" which could change the universal service provision. "Geographic conditions" is not an exact term; the word "conditions" is a variable, as in the case of weather conditions. The geography of where one lives remains the same. The term "geographic conditions" would cover terrain which could change in that it could be muddy or dry. It would also cover climate conditions which could change, but the geography of where one lives does not. Therefore, the words used do not make sense.
In terms of appropriate installations, in the section we are allowing those who will enter the market to do so solely to gain maximum profit and at the lowest possible cost, whereby An Post will take on the expensive part of the service. We are allowing the commission the authority to possibly change the universal service provision. For example, people living on islands might not receive the same service as those living in other areas. Furthermore, post could be delivered to a central location. We would have a major difficulty with this. The reason we are happy the postman goes to every house is that he or she carries important letters and communications, including cheques. Once a letter is delivered to a person's home, there is certainty that it has arrived at that location. If letters are delivered to an installation, we cannot be sure cheques, including welfare cheques on which recipients depend, will arrive at the address to which they have been sent. That is a major difficulty. People are happy to pay extra to ensure they receive the level of service they are used to.
I concur with what Senator Hanafin said. The Minister is missing the point in regard to the concerns raised by Members on this side of the House about the terminology used, regardless of whether it is included in existing legislation. The terminology used is too vague and open to interpretation whether by the commission or anybody else. We need clear legislation. For the purposes of clarity, we need definitions. We need definitions of "an installation" and "geographic conditions" for the reasons outlined by Senator Hanafin. These terms are too broad, which leaves the door wide open for changes to be made, irrespective of whether it is intentional. The Minister's advice is that the regulation is already in place and that its provisions will not change, but my concern is that it is open to interpretation. The definitions are not clear, which leaves the door wide open for a cherry-picking of services. This will result in a diminution of rural services. That is our concern. It is the concern of a large section of the population who could find, following the introduction of this legislation, that their existing service which is working well and efficiently and is one of the services provided at lowest cost in Europe will come under threat. I, for one, am not happy with the wording, as drafted.
The following is the point to be made about primary and second legislation. The Minister has made the argument, which I accept, that secondary legislation cannot undermine or change primary legislation. There is no argument about this. In this instance, we are moving in the other direction. We are translating what is contained in secondary legislation, a regulation, in primary legislation. There is no reason we would not stitch the primary legislation to deal with the matter. However, the Minister's answer was that the regulation had worked very well to date.
I want to explain a few points. First — this is an old speech of mine — we rarely get to discuss regulations in this or the other House. Usually they are laid before the Houses and unless the Government side wants to have a resolution agreed within 28 days, they are not discussed. The Minister will find that there was no discussion in the House of this particular regulation. If there had been, he would have heard all of the points raised by Members today.
The second point is crucial. The Minister has said the regulation has worked very well to date. It has and no one would be shouting to have it changed if this was to be done under the protection of An Post. However, what we are doing is enabling outsiders to become involved in providing a service. We do not yet know their names. It might be Veolia or someone else who will tender to provide a service. We have no experience of what they might do. Neither does the Minister. We trust the people who are delivering the service; although we might complain about them and have an argument with them now and again, at least we know who they are. We have done business with them since the foundation of the State and their protection of the service is long established. As Senator Coffey said, post boxes, some of which have the Queen's head on them, have been in place for 200 years. However, that is not what we are talking about — this is the crucial point of our discussion — rather, we are talking about people whose interest will be to make a profit. There is nothing wrong with this, but because they will be interested in making a profit they will be required to look at the most cost effective way of providing a service. If we pass legislation which allows them to provide a reduced level of service, we will not be doing for the taxpayer and the community a good day's work. That is the point at issue concerning the primary legislation and the raison d’etre of our position which I want the Minister to understand. He can agree or disagree with me, but that is where we are coming from. Perhaps those who will enter the market will be better, more effective and caring and provide a better delivery service than An Post, who knows; we cannot know this. However, we have to legislate for either position.
There is also the point made by Senator Hanafin about installations. I still do not know what an installation is; all I know is that it is not a house or a premises and that it could be located anywhere. I would not be doing my duty if I did not challenge this. That is where I stand on amendment No. 7.
I do not want to labour the point, as it has been well made. There is imprecision in the language used, which is worrying. Without being pedantic, Senator Hanafin put his finger on it in what he said about the word "geographic". In that context, "meteorological" would be a more appropriate word to use. This provision needs to be reconsidered and redrafted, especially as regards the definition of an installation. No one has a clue what it is. If we are to pass legislation, at the very least we are entitled to know exactly what is meant. Without returning in detail to the argument about the cherry-picking of areas, it is the imprecision in language that created difficulties for local authorities. Up to a few years ago the local council was in charge of refuse collection but the service was opened up to competition, which was fair. However, independent refuse collectors were able to enter the market and cherry-pick the best routes. They picked the big towns such as Tralee, Listowel and Castleisland and left the people of Knocknagoshel to fend for themselves or the county council to look after them as part of a loss-making exercise. This measure needs to be tidied. It should be referred back to the Parliamentary Counsel
This does not make a change to the regulations. We are not providing for a new arrangement, whereby a business will decide that it will provide the service in a different way. The key body is ComReg which following the enactment of the legislation will have the exact same powers that it has currently. It does not matter what other providers state; ComReg will have the same powers it has always had into the future to apply the provisions on a common-sense basis, as the directive requires, regardless of what any commercial interest may want. This is the public service looking after the public in a common-sense way. The same will apply after the legislation is enacted. There is nothing new in that regard. The wording refers solely to the role of ComReg and the approach taken by it in assessing the common-sense public interest approach adopted. It is merely doing what the directive states we should do, that is, including the existing requirements in primary legislation.
If a provider tenders or pitches for this work, reads the legislation and goes to the regulator to say this is what he or she intends to do, the regulator can state that is not the way things are done here and that this is the service which has always been provided. The person pitching for the work will be able to say this is what the legislation states and means and that this is what he or she proposes to do. In five years time a different person might hold the position of regulator and would simply be arguing with the written word. It is like going to court. A person could argue the regulator was demanding that he or she do something which was not required by the legislation. It would be game, set and match. Somebody could go to court on that point and it would not matter what nice things had been done or what nice arrangements had been in place previously. We are governed by the word of the law. How many times have we read in court judgments that the law is what it is? It is not its spirit or anything else. This provision is open to abuse. I fully accept that it is not what the Minister intends, but I hope he accepts my reading of it.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 16, subsection (1)(a)(ii), lines 32 to 34, to delete all words from and including “or,” in line 32 down to and including “installations” in line 34.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 28; Níl, 22.
Tá
- Boyle, Dan.
- Brady, Martin.
- Butler, Larry.
- Carroll, James.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Dearey, Mark.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Keaveney, Cecilia.
- Leyden, Terry.
- MacSharry, Marc.
- McDonald, Lisa.
- Mooney, Paschal.
- Ó Brolcháin, Niall.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Walsh, Jim.
- Wilson, Diarmuid.
Níl
- Bacik, Ivana.
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Fitzgerald, Frances.
- Hannigan, Dominic.
- Healy Eames, Fidelma.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- O’Reilly, Joe.
- O’Toole, Joe.
- Phelan, John Paul.
- Quinn, Feargal.
- Regan, Eugene.
- Ryan, Brendan.
- Twomey, Liam.
- White, Alex.
Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Joe O’Reilly and Joe O’Toole.
Question declared carried.
Amendment declared lost.
Amendments Nos. 8 and 9 are related and will be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 8:
In page 16, subsection (1)(b)(i), line 38, after “kilograms” to insert “in weight”.
These amendments would insert "in weight" after "kilograms" and are being made for clarification purposes and to improve the text of the Bill.
I ask the Minister to reconsider the amendments. Every time we put a phrase into legislation such as "allowing discretion to be used", it has reached the stage that it must be proved in court that discretion can be exercised and shown as exercised. Every time there is a list with the words "including" or "inter alia”, an element not on the list can be challenged in court. The legislation refers to two kilograms or 20 kilograms and the Minister proposes to insert “in weight” after this. This is unnecessary. If there is legislation where “kilograms” is written without “in weight” following, someone may be able to challenge it in court by indicating that there is no specification of kilograms in weight. What else could it be except in weight? Some of my learned friends are smiling but I have been dealing with lawyers too long and I believe this to be an error. It is unnecessary unless “kilograms” can mean something else and we should not add the words “in weight” after it. Do we put “in length” after miles or kilometres and do we put “in volume” after cubic measurements? We may be starting something I have not seen before and it is unnecessary. There are three lawyers in the Chamber and I hope they will support me or at least acknowledge the veracity of what I say.
Progress reported; Committee to sit again.