This was an enclosure with the letter — I just did not have a copy of it to hand — and it is from the Taoiseach to Deputy Rabbitte, dated 1 December 2004 and headlined "Regulators and the power to impose fines". It states:
Dear Pat,
I refer further to your letter of 7 October 2004 and would like to thank you for taking the trouble to write to me and inform me of the concerns that you have in relation to the article in The Irish Times of Friday 24 September 2004 regarding the above. The position can be summarised as follows:
(1) It is only the courts that can impose a criminal sanction arising from a prosecution. Our Constitution is clear on that issue. It is not being proposed to alter the manner for the trial of criminal offences.
[The key point the Taoiseach makes is point (2).]
(2) There is already in our legislative code provision for the imposition of sanctions which arise in administrative proceedings. They are not criminal proceedings. Such sanctions — which can be of considerable significance for the individual — are capable of being imposed by, for instance, the Stock Exchange, the Law Society and the Medical Council. With limited exceptions, our legislative code provides for confirmation, by the High Court, of such sanctions. There is nothing unconstitutional about this process.
(3) With regard to the constitutional validity of any proposal, as formulated by the Minister's officials, I can assure you that such proposals will be subjected to full legal scrutiny by the Office of the Attorney General.
(4) Accordingly, I am pleased to confirm that such proposals — as developed by departmental officials — will only be presented for consideration by the Houses of the Oireachtas where the Government is satisfied, on the basis of legal advice, that they are in accordance with the Constitution.
(5) In the proposed Electronic Communications (Miscellaneous Provisions) Bill [this is what it was about] to which you refer, the Minister for Communications, Marine and Natural Resources is exploring the feasibility of introducing measures to increase the enforcement options open to the Commission for Communications Regulation (ComReg) in a number of areas. The draft legislation will specifically address ComReg's power to effectively intervene in an instance of suspected overcharging by an authorised operator.
Although the details of any such proposal have yet to be determined, one option that is being considered is to model the approach on the measures to which you also refer, empowering the Irish Financial Services Regulatory Authority (IFSRA) to investigate overcharging by financial institutions. These measures were introduced under the Central Bank and Financial Services Authority of Ireland Act, 2004.
I trust that the above is of assistance to you.
With my best wishes,
Yours sincerely,
Bertie Ahern TD
Taoiseach
Yesterday I wrote to the Chairman setting out our view that administrative penalties were constitutional and that they could have been considered under this legislation. This is the nub of it. On foot of that, somewhere in the amendments that are not in front of us today I tabled an amendment for administrative penalties but my original problem was that we do not have the complete list of amendments and it is not possible to see what might be the final tenor of the Bill.
On behalf of my party, I contacted the Chairman about the matter because my party felt that for minor and less serious breaches, and for non-criminal matters, administrative penalties are constitutional. It is a view the Labour Party's legal advisers have strongly advocated for a long time. For serious and repeated breaches of the law it is right that criminal sanctions should apply. For minor breaches, for breaches of understanding in the complicated business of quotas and other issues, we felt that administrative penalties should be considered. In his press statement a couple of weeks ago when he announced his amendments, the Minister of State said that this could not be done on constitutional grounds. I agree with the Chairman that it is a matter which could be considered.
That said, we should proceed to deal with the Bill as expeditiously as possible. The Chairman should set aside a couple of days in the near future to take the 200 amendments, get through the Bill and get it on to the floor of the Dáil and let everybody have a chance to give a final view on this.
As Deputy Perry stated, the original Bill was a bad one in many respects. We have an opportunity to make a good Act. I hope the Minister of State will seriously consider amendments like the one I and the Labour Party have submitted on section 8 on sustainability of fisheries, which is what we are talking about.
As Deputy Ryan eloquently stated yesterday at Question Time on control and reform of the Common Fisheries Policy, perhaps this Bill will be the first step and a future Government will seriously address a fundamental reform of the Common Fisheries Policy to protect the resource, which is our birthright, the million sq km of seas which it is our duty to guard and protect. In that context, it is right that we fully consider all matters and then proceed expeditiously.
