SELECT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate

Communications Regulation (Amendment) Bill 2007 [Seanad]: Committee Stage.

Section 1 agreed to.

SECTION 2.

Chairman

Amendment No. 1, 92e and 92g are related and may be discussed together.

Mr. Durkan

I move amendment No. 1:

In page 7, line 29, after "2002" to insert "or as amended herein".

These are technical amendments. In the past we have tabled similar amendments and Ministers have stated it was unwise to do so or they were unnecessary or superfluous - the usual rubbish we hear at times like this.

I was looking through the Bill and, lo and behold, found a couple of other references to "or as amended herein". I was quite surprised. I presume this Damascene conversion has come in prime time to meet the occasion. I ask the Minister to indicate how these amendments might be accommodated.

It would be helpful if an amendment was accepted occasionally. I compliment the Minister on the helpful amendments he introduced in response to Second Stage.

Minister of State at the Department of Communications, Marine and Natural Resources (Mr. Browne)

It is not proposed to accept these amendments. The principal Act is defined in section 2 simply for ease of reference in the Bill and it is clear, from both the Long Title and the Short Title, that it is being amended by this Bill. Under the interpretation Act, reference to an Act includes any amendments to that Act and, therefore, these amendments are not necessary.

Amendment put and declared lost.

Section 2 agreed to.

SECTION 3.

Mr. Durkan

I move amendment No. 2:

In page 8, line 15, to delete "20" and substitute "10".

Where the section states that an associate in relation to an undertaking means a body corporate that is not a subsidiary of the undertaking but in respect of which the undertaking is beneficially entitled to more than 20% of the nominal value of either the allotted share capital of the body or the shares carrying voting rights, other than voting rights which arise only in specified circumstances, of the body, I propose to substitute 10% for 20%.

I want a detailed response from the Minister. As we know from events in the past, implications arise from changing circumstances and the structures of the ownership of an entity can change in the event of transfer, sale or alteration. I regard it as an important amendment. I want to hear the Minister's views on it, apart from just stating that it is not relevant. It is relevant.

Mr. Browne

Based on similar definitions in financial legislation, the advice of the Parliamentary Counsel is that 20% of the allotted share capital of voting rights would be regarded as an appropriate amount for the purposes of the definition of an associate of undertaking. According to his advice, 10% would be regarded as too low.

In addition, the definition of an associate in relation to an undertaking is comprehensive enough to cover a number of other business relationships, including a holding company of the undertaking, a subsidiary company of the undertaking, and a partnership or joint venture in which the undertaking has a joint venture. Therefore, it is not proposed to accept this amendment.

Mr. Durkan

Can the Minister indicate how in certain other circumstances this provision of 20% has worked satisfactorily? For example, I do not want to draw attention to a number of other areas where the former State sector has been replaced by a new structure or operation.

Mr. Browne

The meaning of the term "association of undertakings" as defined is clear. The proposed amendment does not add clarity to the definition. It is not necessary, therefore, to accept the amendment.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 4 and 61 are related and will be discussed together.

Mr. Durkan

I move amendment No. 4:

In page 8, line 32, after "person" to insert "or group".

In the context of the term "end user" employed in section 3, there may be a need to refer to a person or a group.

Chairman

Amendment No. 61 refers to a "group or association of persons".

Mr. Browne

The word "group" is not defined. In addition, contracts for electronic communications are not made with groups but with either a person or a body corporate. Under the Interpretation Act 2005, the word "person" shall be read as including persons or bodies corporate, whether a corporation aggregate or a corporation sole.

Mr. Durkan

That sounds satisfactory.

Mr. Broughan

Why was the word "consumer" not used when the Bill was being drafted? The term "end user" is used but why not merely refer to "consumer", particularly in view of the fact that the co-competition powers of the Competition Authority and the commission form one of the two key elements in the Bill?

Mr. Browne

We will re-examine the matter to which Deputies Durkan and Broughan refer before Report Stage

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 5 to 8, inclusive, 35, 53 to 55, inclusive, 64, 91b, 92f and 92l are related and No. 36 is a logical alternative to No. 35; all will be discussed together.

Mr. Durkan

I move amendment No. 5:

In page 9, line 8, after "Minister" to insert "and approved by the Oireachtas".

This amendment relates to the definition in the Bill which states that a related enactment means:

(c) a statutory instrument made by the Minister [I propose to add the phrase “and approved by the Oireachtas” here] for the purpose of giving effect to an act of an institution of the European Communities relating to---

(i) the provision of an electronic communications service, an electronic communications service network or an associated facility, or

(ii) the radio frequency spectrum or national numbering resource, or

(iii) a postal service, or

(d) a statutory instrument made by the Commission under an Act specified in Part 1 of Schedule 1, or

(e) any Act or statutory instrument declared by a provision of another Act or statutory instrument to be a related enactment for the proposes of this Act;”

It also relates to a matter that arose in respect of the recent legislation put forward by the Minister to retrospectively transpose into Irish law all previously passed European legislation. The latter could have a serious impact on consumers, service providers, Ministers and, perhaps, even the chairmen of the committees of the House. Ministers could be imprisoned as a result of the proposals contained in the legislation to which I refer.

I fundamentally object to the proposal - particularly where primary legislation does not exist - that we should write into law any statutory instrument or regulation that does not make provision for reference to the Oireachtas. Regardless of whether this means that such statutory instruments or regulations should be referred to the appropriate committee the Houses of the Oireachtas, that they should be lodged in the Oireachtas Library for X number of days before becoming law or that some other provision should be made, I must point out that there is deep suspicion among those with whom I had discussions on the Bill regarding such a proposal and that they absolutely reject it. I will go into other reasons we should take this seriously later. It is imperative that the supremacy of the Oireachtas be recognised, notwithstanding the importance of ministerial offices and the exigencies within which they must operate and the exigencies within which the EU expects national parliaments to operate. Those issues must be taken into account but it must be recognised once and for all that in matters of this nature, the drafting of retrospective provisions or the approval of legislation without going through the Houses is a dangerous precedent, which we should not pass lightly. I look forward to the Minister of State's reply. If he is not in a position to accept the proposal, I will table the amendments again on Report Stage. I reiterate that members of the public who have an interest in this legislation have stronger opinions than I on it.

Mr. Broughan

My amendment No. 35 deals with the same issue of approval by the Oireachtas. One of the difficulties the Opposition has had is the Bill amends three other Acts dealing with the communications regulation, competition and electronic commerce. This is particularly difficult legislation for us to invigilate because it is not straightforward. A completely new Bill dealing with communications should be introduced. While I warmly welcome the two key elements of the legislation - co-competition powers and the power to levy fines through the courts - it represents a missed opportunity to reshape the communications landscape, which the outgoing Government has not taken.

The amendment proposes that ComReg should prepare an annual action plan setting out the principal activities it proposes to undertake, present the plan to the Minister who should then lay it before both Houses for approval. Aside from representations by communications and broadcasting interests, I and my colleague have received many e-mails from members of the public who are deeply interested in this legislation and the legislation we will deal with tomorrow in the Chamber. One correspondent felt that ComReg's plan should be the subject of a public e-consultation and it should be possible for interested citizens to see what ComReg plans for the upcoming year. The reason we are here is that, unfortunately, the remit given to the regulator five years ago was incredibly deficient. It was given a job to do but it was not given the tools to do that job and that is why we are experiencing a broadband deficit and why contracts with consumers are being broken by telecommunications companies. We are trying to fix what is wrong with the telecommunications industry. While the Bill goes part of the way, it does not go far enough. Our amendments try to enhance the legislation.

My amendment proposes that ComReg's plan be laid before the Oireachtas for approval. The communications industry accounts for approximately 5% of Ireland's GDP and its importance to the economy is increasing. How the regulator invigilates the industry is of great interest to the Oireachtas and it should be provided for in legislation. If the Minister of State accepts our amendments, we might also make it a requirement that the plan be put to citizens who are interested through e-consultation before it is finally framed and laid before the Oireachtas. I hope the Minister of State will accept my amendment.

Chairman

The committee has invigilated ComReg over the years and even though the regulator has been extremely helpful, the Opposition amendments reflect my own views on the commission's plan and the role of the Oireachtas. The Bill would be seriously deficient if power was not given to the Oireachtas to review or examine matters relating to ComReg or other bodies set up through the legislation under the auspices of the Oireachtas.

Mr. Browne

I am on my own. I do not propose to accept amendments Nos. 5 to 8, inclusive. They deal with the definition of a "related enactment". For the purpose of this Bill, that includes any Act or statutory instrument under which ComReg has a function and statutory instruments made by the Minister for the purpose of giving effect to EU legislation or made under the European Communities Act 1972, which empowers the Minister to make regulations for that purpose. Such regulations are not subject to Oireachtas approval. However, draft EU legislation is subject to Oireachtas scrutiny. Any regulation made by the Minister under the principal Act is required under section 3 of that Act to be laid before each House of the Oireachtas and may within 21 sitting days be subject to resolution passed by either House annulling the regulation.

Amendments Nos. 35 and 36 relate to ComReg's action plan and while I do not propose to accept them, I will give further consideration to the issue raised by both Deputies and the Chairman and I propose to return to this on Report Stage.

Mr. Durkan

I will withdraw amendment No. 5 on the basis that I can reintroduce it on Report Stage. Notwithstanding the Minister of State's comments, this is an important issue. For instance, I do not accept the notion that the Minister is precluded from doing something like this under EU legislation because such legislation is laid down as a framework because that could have serious implications. I fundamentally object to ignoring the need for Oireachtas approval, even though the Minister of State is in agreement with amendments Nos. 35 and 36, which are related. I will withdraw amendments Nos. 5 to 8, inclusive, subject to permission to reintroduce them on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 6 and 7 not moved.

Section 3 agreed to.

Amendment No. 8 not moved.

Section 4 agreed to.

SECTION 5.

Chairman

Amendments Nos. 9 to 15, inclusive, are related and will be discussed together.

Mr. Broughan

I move amendment No. 9:

In page 10, between lines 22 and 23, to insert the following:

"(d) by inserting the following after subsection (1)(e):

"(f) to invigilate the volumes and revenues of international and national mobile telecom services including all termination rates“;”.

The Labour Party believes these amendments would be useful to amend the principal Act. They would give ComReg, in particular, adequate powers to invigilate communications and would lay down for end users basic requirements of service not currently enjoyed. The amendments try to fix what is wrong in the communications market.

In my submission to the Bills Office I suggested inserting these amendments in the principal Act after line 29, as 10(1)(f) to 10(1)(l), inclusive. These provisions include amendments Nos. 9 to 15 and the amendments would, therefore, be included in section 10 of the Communications Regulations Act 2002, which laid down the functions of ComReg to ensure compliance by undertakings with obligations with regard to supply and access to electronic communications services, to manage radio frequency, to ensure compliance with providers of postal services, to invigilate complaints and so on. The first thing that strikes one when one looks at the principal Act is how narrowly ComReg’s functions and powers were prescribed. We seek, through these amendments, to extend those functions and powers in a number of areas of interest to consumers and end-users.

Amendment No. 9 seeks to insert a new provision (d) “to invigilate the volumes and revenues of international and national mobile telecom services, including all termination rates”. This relates to the discussion the Chairman had a few weeks ago with mobile phone companies and the Department. It emerged during that discussion that the Department does not have a clue about the levels of revenue earned by mobile phone companies.

The consistent theme of this committee has been that the public has been ripped off by the key mobile phone companies. Effectively, mobile phone licences have been a licence to print money. This is true nowhere more than in the area of roaming charges. In that situation, companies arbitrarily facilitated each other to squeeze consumers and charge outrageous prices. It has now fallen to Commissioner Viviane Reding to try and stop this. Our amendment seeks to ensure ComReg will have the power to invigilate all revenues of international and national mobile telecom services, including termination rates.

When one mentions termination rates to mobile companies, they go white in the face. They do not want to hear these rates mentioned because these are the rates they charge each other. It is important in concluding the work of this committee that we have a provision in place to ensure we can have the information on this matter. ComReg did not have the power to get the information, despite the many consultations it had with the companies. Also, the Department revealed at our last meeting that it did not have this information.

Amendment No. 10 seeks to insert a new function for ComReg, "to ensure that undertakings provide at least 30 days prior notice for the withdrawal of any electronic communications services or any electronic communications product to an end user". This issue arose last October when 45,000 Irish telecom consumers woke up to find they had no communications service. Those left without services included medical centres and business facilities. They found out their service from Smart Telecom had been arbitrarily withdrawn overnight. The Department promised us it would introduce emergency legislation to prevent this happening again, yet six months later no emergency legislation has been produced and there is nothing in this Bill to stop another telecoms operator behaving in the same manner. We demand that if a company is in trouble, it must provide 30 days prior notice before terminating services. I thought the Minister was going to introduce this provision as an emergency, but he has not done so. Once again we seek protection for consumers, the prevention of a repeat of the outrageous treatment meted out to Smart customers last year, and the assurance it will not happen again by including this amendment in the Bill.

Amendment No. 11 seeks to insert another function for ComReg, "to regulate the content, promotion and pricing information for all premium rate telecom services". This arose from complaints to us and the committee over the years about premium rate services, particularly with regard to young or vulnerable people's access to such services. Such customers can be utterly ripped off by unscrupulous operators. The industry has a regulator, RegTel, which has been before the committee but which is not statutorily based. ComReg has not been a content regulator, but it should have the power to regulate pricing, promotion and content and to take on the functions fulfilled by RegTel. The fact there is no statutory control on premium rate calls is a grave omission from the regulation of telecommunications.

Amendment No. 12 is a key amendment for the Labour Party. We welcome the fact that two of the key proposals of our website document, Enabling Ireland's Future, namely co-competition powers and fines powers, are included in the Bill. However, we also seek a universal service obligation for broadband. It should be a requirement of broadband providers to ensure supply to all customers requiring the service. In other words, it should be like the postal service. Broadband is critical to the economy. I commend this committee which has produced at least three major broadband reports. Labour and Fine Gael also produced reports. Again and again we have pointed out how critical broadband is, yet we are three or four years behind the European average with regard to provision. ComReg conducted a survey in the last quarter and found 33% of narrowband consumers still cannot get broadband. That figure rose to 42% of households and businesses in Connacht-Ulster, 39% of households and businesses in Munster and 15% in the greater Dublin region.

We are disappointed that as the current Government comes to an end there is a broadband deficit. We have not kept the country at the cutting edge and we have been losing high-tech ICT jobs in droves over recent months, which is alarming. We hope we can manage these losses by encouraging new industry into the country. I hope the Minister's current foray into California will do something in this regard. The situation on broadband is still terrible for many consumers. The Minister may well say we have hit the figure of 500,000 and have a target of 700,000. What we want is a universal service obligation and for it to be one of ComReg's functions to ensure it is done. It is appropriate that we demand this as this committee comes to an end because we have done good work here by trying to kick the Government forward on the issue of broadband.

Amendment No. 13 is another key amendment. It seeks "to ensure that the national broadband network is fully accessible to third party operators". We have had local loop unbundling, the LLU saga, for weeks and months on end. Just recently, Danny McLoughlin of British Telecom said the LLU process was still a "tortuous process" which makes it difficult for other operators besides the incumbent to get access to our communications network. We hear evidence of this regularly and only last week 160 households in the village of Kilmaganny in County Kilkenny got together to send a petition to the Minister, me and others seeking a broadband service. The failure to unbundle the local loop has been a key element. I know the Bill proposes other measures but the functions should ensure that by law the national broadband network is fully accessible to third party operators. Eircom is planning to launch a new next generation network. There is a perhaps well-founded suspicion among the other telecommunications companies this will be another venture which will by-pass the local loop and not advance competition in local networks.

Amendment No. 14 is proposed to ensure that the national communications network is maintained to the highest technical current standards in every sector of the network. This is a function that should have been the responsibility of ComReg from its very beginning. I refer to the long saga of broadband and the endless e-mails and phone calls we have received in the past four to five years. We have received numerous complaints about split lines, pair lines, explanations such as, "You're too far from the exchange" or "You're too close to the exchange" or "Your line is bad, nothing can be done for you." There has been an endless litany of deficiencies in our national network.

This outgoing Government made a significant decision and it sold the network. In the meantime it has been resold four times and each time each group of owners has taken a tranche of cash out of the company, a huge tranche in the case of the last outfit. Much of this money should have been invested in the network. We are left at the bottom of the table of the European Union. The Minister may be interested to know Ireland is just in ahead of Slovakia and Greece which is a recent entrant into the provision of broadband and Turkey-----

Mr. Durkan

Bravo.

Mr. Broughan

Some people make the case that Turkey should not be permitted into the European Union because its infrastructure is not up to scratch enough to join the European Union and yet Ireland is down there still in that type of territory. In Northern Ireland even before the deal for 100% broadband enablement, only 1% of the lines were non-broadband accessible at that time whereas the figures issued to us by ComReg over the years showed anything up to 20% of lines as being deficient. This is a horrendous legacy and ComReg should be given the power to control this situation.

I refer to the "Liveline" programme with Joe Duffy where anguished consumers have been complaining about telecommunications companies, including the Perlico company which consumers stated was impossible to contact. There have been complaints about NTL who have imposed fees on those who did not have a Visa card and also complaints about Smart and the case of Eircom not being prepared to link up new estates. My amendment No. 15 proposes a new function for ComReg to give it the power to intervene directly on behalf of end users where service contracts or the universal service obligation have been broken and to ensure compliance by undertakings with the terms of those contracts.

People often say that the topic of communications will not swing an election because issues to do with the economy, health or education are very important. One of the issues arising in my constituency on the doorsteps after Christmas and which was also noted by a Fianna Fáil colleague, was the decision by NTL which it has now amended as a result of the furore. The media were very helpful in highlighting the case of vulnerable consumers. ComReg should be given the direct power. I have tabled another amendment dealing with co-competition powers. I want ComReg to have the power to take the initiative and not to wait for the Competition Authority or to negotiate with it. ComReg should be enabled to investigate whether the contract has been broken. I refer to a case of an elderly constituent who lost her NTL cable and missed two or three weeks of "Coronation Street" and "Fair City" and all her news and other favourite programmes. In the meantime she had been trying endlessly to contact the company and had been shuffled around the place from Billy to Jack without a response. That kind of behaviour should be listed as wrong in the legislation.

Those amendments are aimed at trying to change the landscape of communications to give the regulator adequate powers and above all, to introduce a universal service obligation for broadband. The Secretary General of the Department, Mr. Tuohy, informed the committee about three years ago that broadband should be like water or heating, a basic supply for every household.

Chairman

He must have read our first report.

Mr. Broughan

He did. His comments were subsequent to that. He said it was like grass is to an agricultural economy, which is a quote I have used in my report.

Mr. Durkan

It is grist to the mill.

Mr. Broughan

Grist to the mill which should be available to everybody. I ask the Minister to consider these amendments which I will move.

Mr. Durkan

I support my colleague's series of amendments as they are similar to other amendments I have tabled to other sections of the Bill. It is not a waste of time to address the fundamental issues raised in the amendments as tabled by Deputy Broughan. With reference to amendment No. 9, I refer to the question of restrictive practices whereby movement within the system is curtailed by virtue of the introduction of charges or impediments, blockages or obstacles. The free market does not exist if this applies. We are entering new territory about which we know very little. This is the delivery of services that was previously provided as a semi-State service. We have very little knowledge of this new area whereas other jurisdictions have long-standing systems and records to work by. I agree with Deputy Broughan but I believe it is even worse than he has described. The issues are more fundamental and more serious than even has been described in the amendments. The Minister should consider very carefully the views expressed by the Chairman in the context of the reports produced by the committee. If everybody outside this House is concerned, why are we not? The reason is that it is all new ground to us and we have not dealt with it before. We did not deal with the sale and privatisation of Telecom Éireann as it was handed over and rolled over through various sales. We have reached a crucial stage in the delivery of telecoms services. By crucial I mean that it depends very much on how we proceed from here on. This will determine the degree to which we will be capable or otherwise of providing a service in line with customer needs in the future.

I support the proposal in amendment No. 10. The period of 30 days is at least a basic requirement. The customer, the Minister and all involved should have that notice and should receive it simultaneously. If this is not done, there will be a repeat of the instances referred to by Deputy Broughan where large swathes of recipients of service can have their service terminated because of locked horns between two groups of people purporting to provide the services. Why has this not happened in the past but is happening now? This has implications for other utility services. I also support amendment No. 11. The universal service obligation is necessary. It should have been introduced in the first place and should have been a fundamental requirement. We do not fully appreciate that many other jurisdictions that were way down the pecking order five or seven years ago have overtaken us. People in the business sector, who obviously have plenty of first-hand experience of the deficiencies in the system, will quietly tell us they are embarrassed at the degree to which we have fallen behind. They will set out clearly the issues fundamental to that lack of progress. This is not a criticism of the Minister of State, the Minister or departmental officials. We are trying to point out what the dogs on the street are barking. It is a whole new ball game. Neither the Minister of State nor we have had this experience before. We will need to deal with it.

The purpose of amendment No. 13 is to ensure "that the national broadband network is fully accessible to third party operators". Opening the market to competition was supposed to make all aspects of service available. It was supposed to make available to all potential service providers the option to provide a service in competition with or alongside others to the benefit of the consumer, which has not happened.

The purpose of amendment No. 14 is to ensure "that the national communications network is maintained to the highest technical current standards in every sector of the network". I have tabled similar amendments elsewhere in the Bill. It is a fundamental issue. I do not care what experts are available and to whom they are available. We must recognise that technology and particularly this kind of technology has a very short lifespan. If those charged with providing the service are not obliged to upgrade their infrastructure on an annual basis the delivery of the service will decline again and we will go nowhere. We will be faced with venture capital investments for the purposes of getting a lucrative return, which is understandable. However, it is not a core value in the provision of telecommunication services. Therein lies a contradiction. Unless a provision as outlined in amendment No. 14 and elsewhere is introduced to require an annual upgrade in line with the value of the company and the vintage of the technology employed to date, we will have problems in five and ten years' time. Ultimately if we fail to address those issues we will have no nationally based telecommunication service. It will go elsewhere because others will seize the opportunity to come in and provide it. If we cannot do it ourselves and if we cannot compete in that area we will have a problem.

On the Order of Business, the Taoiseach outlined how important it is for countries with a high technology base to be at the cutting edge. He was referring to electronic voting. I would not regard electronic voting as the most important part of the cutting edge. The provision of telecommunication services to the widest possible audience with the highest quality of service to all areas of the country represents the cutting edge and it is where it is required. If we do not compete at that level all of our industrial-related costs will accelerate and we will have a serious problem.

Amendment No. 15 would require intervention "directly on behalf of end users where service contracts or the universal service obligation have been broken and to ensure compliance by undertakings with the terms of those contracts". I referred to this matter earlier. The same outcome can be achieved by way of reference to the structures, in this case directly and in the case I referred to previously the structures relating to the beneficial owner of the service provider. I strongly support the amendments. In the interest of the future development of the telecommunication service I ask the Minister of State to have regard for them. If he cannot accept them he should introduce his own amendments on Report Stage. If we do not do so we are wasting our time.

Regarding investment in infrastructure, in my area I saw what I presume to be a broadband-carrying cable tied to a tree with a piece of rope. I know it is technology of a sort, but it is not modern technology. It goes back to 1979 when getting a telephone service was like finding a diamond in one's garden.

Mr. Broughan

It sounds like the cable cowboy is alive and well and living in Kildare.

Mr. Durkan

Nearby some fly tipper had decided to dump two easy chairs, a television set and an exercise bicycle. It was in examining the latter that I discovered the importance and advances in modern technology whereby the broadband service is now dependent on a rope tying it to a tree. I could not find the remote control for changing the channels and I do not know whether it applied to the rope, tree or the technology. There was something therein that I missed by a fraction.

Chairman

Is the Deputy sure it was a fibre cable and not a copper cable?

As we are in the final days of the 29th Dáil, am I correct in saying that Deputy Broughan raised these matters as issues on Second Stage?

Mr. Broughan

Yes.

Chairman

Am I correct in saying that none of the amendments tabled by other Members are reflected in the Deputy's amendments?

Mr. Broughan

Yes.

Chairman

Given that is the case, I would like to say the committee has done considerable work on the subject of communications and broadband in the past four years. We have not yet issued the third report. I allowed this debate to continue as it has because I share the views of members who have tabled these amendments. They have built up great knowledge and experience in the past four years and made significant contributions to the two unanimous reports of the committee. As Chairman, I have received complaints about different companies that supply telecommunication services.

I do not know if the Minister of State is aware that Mr. Bartho Pronk, a member of Commissioner Reding's cabinet, addressed the committee on 7 March on roaming charges. Did the departmental officials get a chance to read a transcript of that meeting, watch it or attend the meeting? While it may not have done so formally at that meeting, I know the Commission has expressed concern at our position on the league table regarding broadband. I say this to the Minister of State by way of clarification and urge him to give serious consideration to those proposals by the members, which make considerable sense to me.

Mr. Browne

I will first give my response to the amendments on the roaming charges and the other issues on broadband. I do not intend to accept the amendments. I will respond in detail to the issues raised. The 2003 framework regulations, which transposed the framework directive, set out the procedures for the imposition of specific obligations in the electronic communications sector. All interventions must be evidence-based. The regulator must complete an analysis of the relevant market, the results of which must be notified to the European Commission. The regulator must also outline the measures which will be imposed to address problems with competition which have been identified. As ComReg already has the power to collect the information that it requires to conduct such tasks, amendment No. 9 is unnecessary.

Amendment No. 10, which proposes the introduction of unnecessary rigidity to the commercial negotiations process, could be detrimental to operators that experience temporary financial difficulties with negative consequences for customers. I appreciate the concerns of the Deputies about the need to protect consumers. The Minister, Deputy Noel Dempsey, was concerned about the disruption and inconvenience experienced by many customers when problems arose with Smart Telecom last year. ComReg was asked to examine how the development of such problems could best be prevented in the future. It has put in place a protocol to protect customers in the event of a recurrence of such problems. It will continue to seek to manage the risk associated with this sector and to minimise the disruption to customers in such circumstances. A statutory provision is not required for the protocol.

I move amendment No. 12:

In page 10, between lines 22 and 23, to insert the following:

"(d) by inserting the following after subsection (1)(e):

"(f) to regulate a universal service obligation for all broadband undertakings”;”.

Amendment put.

The Committee divided: Tá, 4; Níl, 6.

Tá

Broughan, Thomas P.
Durkan, Bernard J.
Ferris, Martin.
Neville, Dan.

Níl

Browne, John.
Fitzpatrick, Dermot.
Kelly, Peter.
McEllistrim, Tom.
O’Flynn, Noel.
O’Malley, Fiona.

Amendment declared lost.

Amendments Nos. 13 to 15, inclusive, not moved.

Section 5 agreed to.

NEW SECTION.

Chairman

Amendments Nos. 16, 19, 20 and 25 are related and may be discussed together.

Mr. Broughan

I move amendment No. 16:

In page 10, before section 6, to insert the following new section:

6.--It shall be a function of the Commission to ensure that any telecommunications service provider whose business includes the provision of landline telephone service shall provide such a service within 3 months of the receipt by that provider of a customer order.".

The amendment is closely related to the previous amendments and proposes to establish additional functions for the commission regarding performance targets and the provision of landline services. It has been tabled in response to suggestions from my colleagues in the Labour Party who have received an endless number of complaints about the incumbent, Eircom, regarding the time required to provide a landline.

ComReg carries out quarterly surveys on the time needed to deliver land lines. Its most recent survey indicated that 99% of requests for a new landline were met within 115 working days compared to 171 days in the previous quarter. Many of these requests are from householders in new estates built under the massive expansion in house building. Almost 100,000 housing units were completed in 2005, for example. One of ComReg's objectives is that requests would be met within 52 days but the performance by providers, notably Eircom, appears to be very slow.

The Minister of State may recall that on Second Stage I cited one of many complaints brought to the attention of Deputy Stagg, a constituency colleague of Deputy Durkan. Deputy Stagg briefed me on the position in a number of estates in the Kildare North constituency, including Griffin Rath in Maynooth, Easton Gardens in Leixlip, The Beeches in Straffan and Ryebridge in Kilcock. Other estates are also in similar position. These estates have been left for months without a basic telephone line. As Deputy Stagg stated in the conclusion of his report, these areas are not exactly on the top of a mountain in some distant part of the west or north west. Although they are on the edge of the Dublin region, as ComReg stated, they have been waiting 115 working days - half a year - and 171 days - almost two thirds of a year. Delivery of this service is poor. On behalf of Deputy Stagg and my colleagues who brought this to my attention, I urge that this basic service be provided within three months.

New estates frequently experience problems. We referred to our reports in the previous discussion. In our first broadband report we asked for local authorities to insist ducts for fibre-optic cable are put into estates. I am aware this happened in part of my constituency, for example, in Clongriffin on what we call the north fringe. We have had many problems with companies who are, in effect, operating the universal service obligation in addition to Eircom. People should not have to wait longer than a maximum of three months to have a basic telecoms service. Even that is a long time. I stated on Second Stage that my predecessor in Dublin North-East was the great Dr. Conor Cruise O'Brien. He introduced much extra funding into what was then the Department of Posts and Telegraphs. His target was to have a phone installed within six weeks, yet 30 years later we have not advanced. The Minister, Deputy Noel Dempsey, is not able to do as well as the former Minister, Dr. Cruise O'Brien, all those years ago.

Amendment No. 19 refers to a change we believe should be included in the Bill. It deals with metropolitan area networks, MANs. The Minister also referred to this matter. Since the sale of Eircom, a constant theme has been the network we are now setting up as a shadow national network based on metropolitan area networks. We followed what was happening with the MANs when the tender competition was won by e-NET. It has a good management team and is trying to roll out more commercial usage.

However, when one examines the situation with colleagues in the communications media who have followed the situation, it emerges that questions have been raised time and again about the MANs and the purpose of setting up a second telecoms network. We only have one water network and we had a debate last week about the electricity transmission and distribution networks. One could not envisage two electricity distribution networks and one certainly could not imagine two transmission networks, yet we have an extra transmission network in the telecoms area.

Since the then Minister, Deputy Dermot Ahern, began this process based on 123 towns, we have sought information about the MANs, their technical specification and abilities and, above all, the financial performance. The current chief executive officer, Mr. Henry, reported to us the last time we had a partial meeting on the MANs that the turnover had reached approximately €4.5 million and was growing. He stated he was hoping to try to develop the network. The MANs appear to be still looking for a purpose. In effect, they are a massive fig leaf to protect the Government which failed the country in terms of communications networks because it did an unforgivable act by selling the network and putting it into private hands. The fundamental reason is we are up to six years behind and the Department is rightly embarrassed about Ireland's performance in this area.

Eircom announced last week 4,500 people per week are now signing up for broadband. That is most welcome but it would have been more welcome in 2003 or 2004. It did not happen then, however. The Labour Party fears we may end up with a digitally divided country. The Minister should be in a position to get information from the undertakings so we can question him in the House on this matter, assuming we are all elected to the 30th Dáil. I hope it might fall to the Minister and the Chairman to ask this side of the House what is happening with the MANs so he will see how frustrating it was for us for the past four and a half years to be watching this development yet not to be able to get any information. The Ceann Comhairle has constantly ruled us out of order on this matter. Reference to the MANs should be included in legislation. It is a significant idea that one would have a second national communications network.

Amendment No. 20 is similar to one I moved earlier. I am aware Deputy Durkan has tabled a similar one. I am calling for the inclusion of information relating to the volumes and revenues of international and national mobile telecom services, including their termination rates. The reason I do so is because at the last committee meeting I chaired, the Department clearly did not know the figures for the revenues and rates of these services. The Department is operating in the dark. I assume the communications area will have a Department of its own in the next Government, perhaps with the addition of broadcasting and the arts, and that it will be aware what is going on in the mobile telephony market and that we would not be led on a merry dance in this regard.

We will all be in a position to enjoy the election in the next eight or nine weeks. One of the interesting subjects being raised by young constituents, including the Union of Students in Ireland and the youth bodies, is the cost of mobile telephones. This is a significant issue for younger voters and it is one we should address given that it is such an important part of the culture of young people.

Amendment No. 25 relates to amendment No. 24, which deals with the power of ComReg in section 13C to obtain information. Where an undertaking commits an offence or gives false or misleading information, it must comply with a requirement by ComReg. My amendment calls for the inclusion of the words, "fails to provide at least 24 hours of prior notice for the withdrawal of any electronic communications service or electric communications product to an end user".

When ComReg was before the committee, it transpired that under its current powers, it was not in a position to know what was happening in the Smart Telecom debacle. ComReg was, effectively, left in the dark on this matter. It was aware of a serious problem relating to the payment by Smart Telecom of its wholesale bills to Eircom but it did not know what was happening in the last crucial 24 hours. The point about broadband communication is that it should be always on. The Minister was somewhat apologetic about those businesses, especially places such as medical centres, that ended up with no coverage when Smart Telecom collapsed. That was a disgraceful situation which would not have happened in any other country in the European Union.

This amendment is similar to the previous one but its purpose is to ensure ComReg will get critical, last-minute information before somebody decides to pull the plug for whatever reason, be it financial or otherwise.

Chairman

I call the Minister of State. I apologise. I call Deputy Durkan first.

Mr. Durkan

The Chairman's apology is accepted.

Chairman

The Deputy's name was not on the list.

Mr. Durkan

I know. I merely wish to offer my full support for the amendments proposed by my colleague. They are fundamental to the quality of the service that is required and they are in line with the representations made to us. They reflect the views of consumers, domestic and commercial, and, unfortunately, they address issues that were inspired by experiences we have all had in recent times. Deputy Broughan referred to issues in my constituency brought to his attention by Deputy Stagg. What we have experienced in the past year or two is appalling. We have been reduced to the situation pertaining in 1979. In that year there was as good a chance of obtaining a service quickly as of having something from outer space land on one's doorstep in the morning. This is not in line with what is required. If we are to be at the cutting edge in the competitive business world that now obtains - some have doubts about this - we must have the means by which we can best compete. All the amendments will sharpen our wherewithal to do so and I thoroughly support them.

Without criticising the Minister of State or his officials, I ask that they tell somebody in the Department, at some level, what is going wrong. The problems are there for all to see. I am not being critical of anybody on the Government benches in saying there is a very serious problem of which the Department does not seem to be aware. It has major implications for the delivery of a vital part of the service required in the competitive world of technology in which we live. One may talk about encouraging the establishment of high-tech jobs in this country - the more technical, the better - but I refer to the basic technology required for the delivery of a utility service on which the public depends daily. How much more serious can we get than this?

Mr. Browne

With regard to amendment No. 16, in a fully liberalised and open market, decisions about investment, the provision of telecommunications services and the development and roll-out of telecommunications technology are primarily a matter for the industry itself. It would therefore be inappropriate to impose such a mandatory requirement on all fixed-line operators by way of primarily legislation. Eircom, however, as a designated universal service provider is obliged to satisfy any reasonable requests for a landline and ComReg has set out guidelines for timescales in meeting requests for connections. While acknowledging that there can be a variety of reasons for delays in meeting requests for connections and that individual cases need to be considered on their merits, ComReg stated it has concerns over the number of applications that are not met within a reasonable timeframe. It has signalled its intention to set binding performance targets, as distinct from guidelines, for aspects of the universal service obligation, including installations.

The legislation provides for an enforcement mechanism should there be persistent failure to meet performance targets. In the event of non-observance of a direction to comply with the performance targets, ComReg may apply to the High Court for an order requiring compliance.

The issue dealt with by amendment No. 19 is already covered by contract between the Department and e-net and is outside the scope of this Bill. Deputy Broughan can table all the questions he likes to the Minister in this regard because he would certainly be in a position to answer them owing to the direct engagement between the Department and e-Net.

Mr. Broughan

Not on a regular basis.

Mr. Durkan

We get refused regularly.

Mr. Browne

It is not proposed to accept amendment No. 20. The purpose of the provision of information under the new section 13B is to enable the Minister to formulate policies and plans to deal with emergencies and network security issues that may arise. The type of information referred to in the amendment can already be collated by ComReg and the Minister has no need for this information for these purposes.

Amendment No. 25 relates to the section on the power of the commission to obtain information from undertakings and also relates to information ComReg is required to provide to the Minister under section 13B. The proposed amendment falls entirely outside the ambit of the section. The sentiment of the Deputy's proposed amendment, however, is noted. It is not appropriate to criminalise an operator who may be going out of business regarding any failure on its part to notify its customers. The Deputy may be aware that ComReg has a protocol in place to help protect customers where service is withdrawn, as in the case of Smart Telecom customers, and it will continue to seek to manage the risks and minimise the disruption to customers. As part of this protocol there is now an understanding that operators, when in a position to do so, will inform both ComReg and customers not later than 24 hours before service is withdrawn and, in some cases, much earlier.

The Minister has no role in setting mobile telephone charges. Regulatory issues surrounding mobile telephone charges are the responsibility of ComReg in accordance with the provisions of the EU regulatory framework. Irish consumers use their mobile phones heavily, and the average revenue per user, at €47 per month, is among the highest in Europe. The EU average is €32 per month. However, much of the cost in Ireland is attributable to the heavy use of the telephone rather than the high price.

Mr. Durkan

That is not true.

Mr. Browne

It indicates that Ireland's mobile telephone charges are roughly the same as the average across Europe. ComReg notes that the average revenue per user among Irish operators has started to decline and is monitoring the market to determine whether recent developments, such as the advent of mobile virtual network operators, MVNOs, will force mobile charges down further.

That was in 1979.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 17, 18, 21 to 24, inclusive, and 26 are related and may be discussed together.

Mr. Durkan

I move amendment No. 17:

In page 10, line 33, after "information" to insert "and make provision by way of directive".

The Bill refers to the purpose of sections 13B and 13C as enabling the Minister to obtain information in order to formulate policies. My amendment is similar to that proposed by Deputy Broughan and the information obtained would allow the Minister to deal with emergencies and network security issues that may arise in connection with the provision of electronic communications services. It requires that someone has direct authority to give direction in respect of what is happening at a particular time. I seek to avoid a situation where the regulator, the Commission for Energy Regulation, the Minister, the service provider and the unfortunate consumer are not all left wondering what has happened. Someone can take the initiative. I believe in the old-fashioned system whereby ultimate responsibility resides with the Minister. It is his responsibility to issue directives and demand information. If information is not forthcoming on a regular basis he cannot issue directives. It is a necessary improvement. On the basis of efforts to date the Minister is unlikely to accept this amendment. After studying form I must come to accept that we have a problem.

There exists a serious problem in the telecommunications sector in this country. It is well documented. The Minister of State may believe we are here to score political points but we could be better employed doing other things. We are spending time on this debate because we know there is a problem and are attempting to address it. It would be beneficial if the Minister of State took on board some of what we say.

Amendment No. 18 is fundamental to the discussion. It continues from the previous amendment and those referred to by Deputy Broughan. Section 13B states:

For the purpose specified in section 13A, the Minister may, by notice in writing, require the Commission to provide the Minister with written information concerning either or both of the following:

(a) the technical operation or performance of electronic communications networks and infrastructures in the State;

I propose to include the phrase "including the ongoing financial investment in the infrastructure". Amendment No. 21 proposes including the following: "(c) the level of investment required to provide the level of service expected”.

I have examined this Bill until I am blue in the face. The level of investment is fundamental to the degree of service that can be provided to the telecommunications consumer. If the level of investment is toned down or ignored Ireland's telecommunication sector falls to the bottom of the league, where we are at present.

This service was previously provided by the State or semi-State bodies. According to criticism the State did not provide it effectively so it became a semi-State body. In the period to 1979 the sector was very poor but eventually we achieved a quality of service as a result of the investment made by Dr. Conor Cruise O'Brien. It took some years before the result of the investment became obvious but we could enjoy service on demand. It was possible to open a shop or buy a house and be connected within a few days. The infrastructure was planned in advance.

Griffin Rath was the area to which I referred earlier, where there were two easy chairs, a rope tying the cable to the tree and a television set that was brought by someone awaiting provision of the service. He decided to watch television while on the waiting list. He forgot the electronic programme changer, which would have been helpful to those of us passing by. I can provide the Minister of State with a photograph if he believes I am joking. As an indicator of our technological advances I would be embarrassed if colleagues in the European arena were aware of the appalling level of investment in the technology required to deliver services to an increasingly demanding public.

The next amendment refers to the necessity for regular upgrades. Electronic technology has a very short life. It can become outdated in less than a year. We must upgrade regularly to ensure quality is comparable with what is available on the market. We have an opportunity that is not necessarily available in other countries because we can skip a generation or maybe two or three generations and give our consumers the benefit of leading edge technology as it comes on stream. I am sure that, like me, the Chairman and the Minister of State, have experienced this technology in other parts of the world, some of which are not nearly as well advanced in the adaptation and utilisation of modern technology as we. I marvel at the quality of this technology which yields dividends because those countries recognise the necessity to upgrade the investment in technical infrastructure regularly. If we do not do that we will waste time.

My amendment No. 23 refers to the following subsections:

(b) the breakdown or malfunctioning of any part of the undertaking’s electronic communications service;

The amendment proposes to insert after "to" in (c) “the adequacy of the”. I respectfully suggest that this is a small amendment which could have wide implications but is necessary.

Amendment No. 26 refers to 13E(3):

The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Minister or Commission may not suffer damage if relief were not granted pending determination of the application.

I wish to add "provided the interests of the end user or customer are acknowledged". Deputy Broughan proposed the same amendment in another place. We each did so without consulting one another but as we saw fit, with a view to achieving the same objective. The end users are the most important people. We have been talking about them all afternoon. The Minister of State and the service depend on them for support.

There is always the danger that a culture may develop such that because this is a utility service the customer must accept what is offered. That is not true. The concept of competition, the open market, the internal market or any other market underlines the availability to the consumer of choice, value for money and the best possible quality and degree of service. If the Minister of State does not accept these amendments I will reintroduce them on Report Stage.

Mr. Browne

Deputy Durkan did not read this section very well because it states clearly:

The purpose of sections 13B and 13C is to enable the Minister to obtain information in order to formulate policies and plans to deal with emergencies and network security issues that may arise in connection with the provision of electronic communications services.

Therefore I am not in a position to accept the amendments. The Deputy has talked about investment and other issues that are not relevant to this section. In so far as investment is concerned we have had a successful investment in Global Crossing which comes in through my home county, Wexford, and has brought companies such as Microsoft, Google, eBay and others to Ireland, some in Deputy Durkan's constituency.

There has been significant investment in the MANs project and Eircom in the past week announced a €1 billion investment in next generation networks so a major investment is going on. The Deputy's comments are not relevant to this section whose purpose is solely "to enable the Minister to obtain information in order to formulate policies and plans to deal with emergencies and network security issues".

Mr. Durkan

I disagree. The purpose of these amendments is to trigger a series of mechanisms whereby the customer, the Minister, the commission and the regulator are protected to ensure that there are adequate means whereby action can be taken, on the basis of the reports that may be made available to the Minister, and that the Minister can demand. This is necessary and I totally disagree with the notion that it is not relevant in this section. It is relevant to this and to other sections to which my colleague has referred. I have no hesitation in saying that if the Minister of State ignores what the Opposition says on this section there will be consequences. I advise him to act in time when the opportunity presents itself. That will be to the advantage of the consumer.

I propose to withdraw these amendments for reintroduction on Report Stage because although his colleague the Minister is somewhere in the shade of a eucalyptus tree he could easily have said that he would accommodate the Opposition and accept a few of the amendments.

Mr. Browne

I have already accepted some amendments from Second Stage.

Mr. Durkan

The Minister of State made a couple of friendly noises.

Mr. Browne

Further on in the debate I will accept more amendments.

Amendment, by leave, withdrawn.

Amendments Nos. 18 to 20, inclusive, not moved.

Mr. Durkan

I move amendment No. 21:

In page 11, between lines 2 and 3, to insert the following:

"(c) the level of investment required to provide the level of service expected.”.

Amendment put.

The Committee divided: Tá, 5; Níl, 7.

Tá

Broughan, Thomas P.
Durkan, Bernard J.
Ferris, Martin.
Gormley, John.
Neville, Dan.

Níl

Browne, John.
Fitzpatrick, Dermot.
Kelly, Peter.
McEllistrim, Thomas.
O’Donovan, Denis.
O’Flynn, Noel.
O’Malley, Fiona.

Amendment declared lost.

Amendments Nos. 22 and 23 not moved.

Mr. Durkan

I move amendment No. 24:

In page 11, between lines 18 and 19, to insert the following:

"(d) the financial stability or credibility of the undertaking with particular reference to future requirements in respect of investment in modern infrastructure.”.

Amendment put.

The Committee divided: Tá, 5; Níl, 7.

Tá

Broughan, Thomas P.
Durkan, Bernard J.
Ferris, Martin.
Gormley, John.
Neville, Dan.

Níl

Browne, John.
Fitzpatrick, Dermot.
Kelly, Peter.
McEllistrim, Thomas.
O’Donovan, Denis.
O’Flynn, Noel.
O’Malley, Fiona.

Amendment declared lost.

Mr. Broughan

I move amendment No. 25:

In page 12, between lines 18 and 19, to insert the following:

"(c) fails to provide at least 24 hours of prior notice for the withdrawal of any electronic communications service or electric communications product to an end user”.”.

Amendment put and declared lost.

Amendment No. 26 not moved.

Section 6 agreed to.

Sitting suspended at 5 p.m. and resumed at 5.30 p.m.

SECTION 7.

Chairman

Amendments Nos. 27 and 28 to 33, inclusive, are related and will be discussed together.

Mr. Durkan

I move amendment No. 27:

In page 13, line 19, after "disclosure" to insert ", as defined in the Whistleblowers Act,".

This is new territory as well into which we are venturing. It is incorporating within the Bill provisions that were supposed to be provided for in a main Act where reference is made to the whistleblowers Bill. Since the whistleblowers Bill has not been introduced in the House as a separate entity, and this was the original intention, there is a particular significance, for reasons that will emerge, for the inclusion of elements of that Act in this legislation. Section 24A(1) states:

A person who makes an appropriate disclosure [My amendment seeks to insert "as defined in the Whistleblowers Act" at this point] of information ... about the conduct of an undertaking, an associate of an undertaking or an association of undertakings incurs no civil or criminal liability for having done so.

I also propose to insert "unless it is proven that irreparable damage has been done to the undertaking by false, groundless or malicious allegations".

I know the Minister will say amendment No. 28 is unnecessary. My reason is to try to introduce some balance. If the main whistleblowers Bill had been before the House heretofore, we would have a record and a guide to go on, but we do not have that. I agree with the measures in the Bill, but the problem is that we do not have a benchmark against which to measure them. We could be treading in an area that could cause us difficulty. If I wanted to be malicious and to make groundless allegations, I could do so without incurring civil and criminal liability. That is the reason for my second amendment.

I read that too. Section 24C states:

A person who makes a disclosure of information about the conduct of an undertaking, an associate of an undertaking or an association of undertakings, knowing the information to be false or misleading commits an offence and is liable-

(a) on conviction on indictment, to a fine not exceeding €50,000, or

(b) on summary conviction, to a fine not exceeding €5,000.”.

The person might never be convicted or even indicted. This does not cover the problem to the extent that concerns me. If I were to accuse someone in this room of impropriety and it was investigable by a tribunal, I could make the allegation, possibly believing that it should be investigated. In this amendment, I would like to see some means whereby the allegation could be established before it becomes public knowledge. One could do considerable damage to a person's reputation. It may be that something has gone wrong or that the responsibility lies with someone other than the person at whom the finger was pointed. I am trying to establish some degree of veracity before it goes into the public arena. Once the allegation is in the public arena, there is little one can do to recover the ground lost or the reputations damaged.

I fully support the concept of the whistleblowers Bill. However, it would be better if the main structure of that Bill were in place so that we could refer to it in this Bill rather than referring to a Bill that does not exist. Deputy Rabbitte has long pursued the concept of the whistleblowers Bill, which relates to the time when he, Deputy Broughan and I served on the Committee of Public Accounts and learned quite an amount of information about that issue. In this situation, we do not have the whistleblowers Act but we have references to it. Officials at the Bills Office, who have been very helpful, told me that there was no whistleblowers Act. I told them that they were right and that is why the amendment has been tabled.

I do not wish to delay the meeting any further than that. In the absence of an actual whistleblowers Bill, sensitive information could go into the public arena and do irreparable damage to the undertaking. While it could be examined behind closed doors, if it became public knowledge it could cause problems.

Mr. Broughan

I warmly welcome the insertion in the Act of the protection of whistleblowers. People have been contacting us in different ways every week. This committee, to the credit of the Chairman, has tried to investigate matters that people have brought to our attention when they felt they were badly treated by the public administration or others. It is critical.

I agree with Deputy Durkan. Deputy Rabbitte brought forward a whistleblowers Bill that got through the House and then went into limbo. Whenever the Taoiseach was asked about this, he said that what we needed was not a whistleblowers charter but a sectional progression across legislation. That could take forever. Some legislation is relevant for decades, so while it is welcome, it could take a long time. It is unfortunate from that point of view.

It is crucial that whistleblowers are protected. One of the most famous whistleblowers brought a matter to my attention about a decade ago. He had a document which was eventually published by Mr. Vincent Browne. I wanted to get a copy of it, but he would not give me the document because he felt that I might be assassinated on my way to the corner shop to get it photocopied. He felt that the forces to which he was opposed were so powerful that they would stop at nothing to allow their misbehaviour enter the public arena. That whistleblower was the late, great Mr. Jim Gogarty. The issues he raised were eventually investigated and are still being investigated by the Mahon tribunal.

It is a serious area and politicians have a heavy responsibility as well. My amendment and those of Deputy Durkan and the Minister are trying to introduce protection for whistleblowers. They also try to ensure that vexatious complaints by disgruntled employees who are not doing well in their company are not aired in public. One must try to strike a balance. It is a pity the Government did not pass a whistleblowers Bill. Any Government in which the Labour Party is involved following the election - I imagine the same applies to Fine Gael - will introduce such a Bill. It is a difficult area but other jurisdictions have such legislation and so should we.

Amendment No. 29 refers to situations where there might be collusion or anti-competitive practices. Those of us who studied economics will have considered areas such as monopoly or oligopoly - all very interesting territory. In the mobile telephone industry, for example, there were two operators but this became three and has just become four. They are looking at and reacting to each other's rates in trying to protect and expand their segment of the market, based on the extent to which each operator can anticipate what the others are doing.

There are intensive economic studies in this regard but there are also other possibilities. Within the portfolio of communications, marine and natural resources, there was the situation in the oil industry, where serious charges were brought against people for manipulating prices locally in their dealings with each other. The car business is allegedly notorious for having some members disgracefully manipulate consumers. To assist the Minister and the Government in this regard, my amendment tries to tease out the matter further. The most important aspects we are trying to avoid are anti-competitive practices or collusion, whereby people are not given the best possible service at the lowest possible price in the most competitive market. I thought this would be useful.

The sectoral approach referred to by the Taoiseach is another way of taking the long way around and could take decades. He should have taken Deputy Rabbitte's Bill through Committee Stage and passed it, and tried to introduce it in such a way that it would be fair to everybody - fair to the public administration, private and public companies and consumers. Above all, it should be fair to a whistleblower who has genuine reasons for blowing the whistle in that he or she feels the behaviour of the entity or undertaking is against the national interest and should be exposed.

I welcome the section. The Minister's amendment is fair enough. Perhaps he will consider my amendment, which would zero in on this territory in which we are most interested, namely, practices which are designed to defeat competition in whatever way and keep us backward in our communications, particularly in regard to broadband. I commend amendment No. 29 to the Minister of State.

Mr. Browne

The provision of protection for whistleblowers included in the Bill follows a Government decision of 3 March 2006. The decision stated that all legislation preparation should, where relevant, include provisions for the protection of whistleblowers and for the purposes of this Bill "appropriate disclosure" is defined. The whistleblower provision offers protection to any person, most often an employee, who communicates to ComReg any incidents of non-compliance with obligations under this Bill or related enactments which the person reasonably believes are occurring. The logic behind whistleblowing provisions is usually that an employee who communicates such information should not be penalised by his employer for doing so and should be protected by law.

It is not proposed to accept amendment No. 28. Section 24A provides protection from liability for any person who makes an appropriate disclosure to the commission about the conduct of an undertaking. It is designed to encourage such disclosure by individuals. Section 24C provides for a summary or indictable offence for the disclosure of false or misleading information. The fine for summary conviction shall not exceed €5,000 and for conviction on indictment €50,000. This provision offers protection to undertakings for malicious disclosure of information.

In addition, the Government's amendment No. 32 enhances the whistleblowers provision in the Bill by providing that ComReg may use its discretion when information is disclosed to it and can decide, if satisfied on reasonable grounds, not to accept or deal with the information. This will allow ComReg the discretion not to act, for example, when information offered to it is of a vexatious or frivolous nature. The provision will offer operators protection from disgruntled employees who, for example, might seek to disclose commercially sensitive information to ComReg. It is in addition to the protection from mischievous claims offered by section 24C.

We gave serious consideration to amendment No. 29. As it stands, the whistleblower provision allows for appropriate disclosure to be made about any conduct relating to the provision of electronic communication network services and associated facilities. We feel the proposed amendment would restrict the areas where information could be given to the commission to only two specific areas of involvement, namely, anti-competitive practices and collusion. All other areas of non-compliance with obligations under the framework would not be disclosable if the amendment was accepted. It is not proposed to accept amendment No. 30.

Mr. Durkan

I am not sure section 24C meets the requirements as they need to be met. It refers to conviction on indictment if an allegation is proven to be false, which may prevent a person coming into the arena to give information in the first place. I agree entirely with my colleague with regard to the necessity to ensure there is a facility for a whistleblower to divulge the information to the appropriate authority and for that person to be protected.

The Minister of State's amendment No. 32 states:

The Commission may decline to accept or deal with a disclosure of information made to it by a person about the conduct of an undertaking, an associate of an undertaking or an association of undertakings if it is satisfied on reasonable grounds that the information is false or misleading or that the disclosure is frivolous or vexatious.

This relates to the period after the submission has been made to the commission because, otherwise, the commission would not be in a position to come to a judgment because a hearing must be held to determine the strength and depth of the allegation. This is fine so long as the allegation remains confidential. The Minister referred to section 24C but it contains no reference to confidentiality because the matter is already in the public arena at that stage and is a matter for determination by the courts, which are the final arbiters in any event.

I am concerned that the whole purpose of the introduction of the whistleblowers provision in this Bill may be lost if adequate provisions and safeguards are not available to ensure the person making the complaint is heard by some body. The complaint must be tested and verified but up to that point the nature of the allegation should remain confidential. Otherwise, how would one stop a snowballing of a situation where damage has been done or there is a belief there is no smoke without fire? In particular circumstances, a situation could arise whereby a company would go to the wall.

The Minister's amendment deals with the substance of the amendments but I am not sure it will serve the purpose for which it was intended if we are to ensure the information does not enter the public arena, and if the person concerned is to be assured it will not do so. If the information does inadvertently enter the public arena, that person could become liable in a way he or she had not intended. I ask the Minister of State to review the issue before Report Stage.

Mr. Browne

Amendment agreed to.

Amendment No. 33 not moved.

Section 7, as amended, agreed to.

Section 8 agreed to.

No, but it can request it. We will discuss this issue before Report Stage. It is a minor issue.

Amendment, by leave, withdrawn.

Mr. Broughan

I move amendment No. 35:

In page 15, line 17, after "Minister" to insert the following:

"and lay the plan before the Houses of the Oireachtas for approval".

Amendment put and declared lost.

Mr. Durkan

I move amendment No. 36:

In page 15, line 17, after "Minister" to insert "who shall inform the Oireachtas".

Amendment put and declared lost.

Section 9 agreed to.

SECTION 10.

Mr. Broughan

I move amendment No. 37:

In page 17, to delete lines 1 to 5.

Section 10 inserts a new Part 2A into the principal Act of 2002. Under this Part, proceedings will normally be held in private. However, section 38C(2) states:

If a person who appears before the Commission in compliance with a requirement made under section 38A requests the matter to be dealt with in public, the Commission shall comply with the request.

Having heard different views on this provision from various industry players and having considered ComReg's performance in the last four years, I concluded that the best way forward would be to delete this subsection. It should be for the commission to decide whether proceedings should be held in public or private. In other words, this should not be decided by a personality or undertaking being brought into those proceedings. This would be a significant enhancement of ComReg's ability to carry out its important new powers satisfactorily.

I presume if all this works well, we will reach a situation where the endless and tortuous legal appeals through the Electronic Communications Appeal Panel and otherwise will not be necessary and that ComReg will be able to expedite blockages in the system. We have rehearsed this issue already today and I will not go through it again.

Mr. Durkan

I understand Deputy Broughan's intention in this amendment and had considered putting forward the same proposal. We have had conflicting submissions from those in the sector and there are convincing arguments on both sides. I share my colleague's concerns on this issue.

Mr. Browne

Section 38 of the principal Act provides that all proceedings under this Part are to be held in private. However, our legal advice was that a provision should be made to hold such proceedings in public should a person required to attend before the commission so request. This provision will ensure the rights of a person to a public hearing as enshrined in Article 6 of the European Convention on Human Rights.

Mr. Durkan

I knew my old friends were there lurking in the darkness of the European Commission.

Chairman

How stands Deputy Durkan's amendment?

Mr. Durkan

It is not my amendment.

Chairman

How stands Deputy Broughan's amendment?

Mr. Broughan

It has been a long day and the Cathaoirleach is losing his touch. I will press it.

Amendment put and declared lost.

Chairman

Amendments Nos. 38 and 39 are related and may be discussed together.

Mr. Durkan

I move amendment No. 38:

In page 17, line 10, after "accordingly" to insert the following:

"having due regard to the legal entitlements of all those affected".

This amendment pertains to section 38C(3) to be inserted into the principal Act and is similar to the previous amendment. It purports to address some of the issues involved. The subsection states:

If the Commission is satisfied that it is desirable in the public interest that the evidence to be given, or the document to be produced, should be given or produced in public, the Commission may direct accordingly.

I propose the insertion of the phrase, "having...regard to the legal entitlements of all those affected". It should be noted this refers to all those affected rather than to all those involved. This is the other side of the coin as suggested by Deputy Broughan. Such information will be in the public arena and it is obvious that anyone who is aggrieved or is likely to be aggrieved will have access to the court.

In response to Deputy Broughan, the Minister of State suggested that as a public hearing may be more beneficial in certain circumstances, the commission will be able to direct that a public hearing be held. I understand the reason for this because victims frequently would prefer hearings to be held in public rather than in a closed shop before a few select people. While this point has been made previously in respect of other legislation, I will not go into details. However, the amendment proposing the inclusion of the phrase, "having due regard to the legal entitlements of all those affected", might be of some benefit to the public, the commission, the regulator and the system's integrity.

Amendment No. 39 is similar. It pertains to section 38C(5), which states:

Nothing in a direction given under subsection (4) may prevent the presence of---

(a) a barrister, solicitor or other person who is representing the person who is appearing before the Commission, or

(b) a Commissioner or a member of the Commission's staff.

I have proposed the inclusion of, "or...a barrister or solicitor or other person who is representing a person, group or body who may be affected by the evidence given". The presumption is that the presence of a barrister, solicitor or other person in section 38C(5)(a) representing the person who appears before the commission offers sufficient protection. This is the case for the person in question, a commissioner or a member of the commissioner’s staff. However, others may require representation in such a scenario.

I move amendment No. 40:

In page 18, line 20, after "penalty" to insert the following:

"or to inadvertently give credence or substance to an allegation of malfeasance".

I have referred to such matters previously.

Chairman

Is this in the same vein as the previous amendments?

Mr. Durkan

Yes.

Chairman

Will we allow the Minister of State to respond?

Mr. Durkan

I am reluctant to allow him to do so immediately. The new section 38E(2) states that "Subsection (1) does not apply if the person has a reasonable excuse". Section 38E(3) goes on to state:

It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.

In the United States, this is well known as the fifth amendment, whereby one refuses to answer a question on the grounds that it might incriminate oneself or others. I have suggested the insertion, after "penalty", of the phrase, "or to inadvertently give credence [to] or ... [substantiate] an allegation of malfeasance". While this is a wide interpretation, there are substantial grounds for examining such a situation with some seriousness. If necessary, I will table this amendment again on Report Stage as it is needed.

Mr. Broughan

How does the process for such hearings that is being established in respect of ComReg differ, for example from that used by the Financial Regulator? My understanding is that the Financial Regulator can summarily impose significant penalties on financial companies that are misbehaving. Many lay people might consider that the Bill's failure to give similar powers to ComReg constitutes a deficiency.

For example, I mentioned the planning tribunal in respect of the amendment I tabled previously. Does the Minister of State have any concerns that one could find oneself in a big, long-winded circus of barristers and all kinds of mega teams? Obviously, it would be of great interest to the public and we felt that such public ComReg hearings should be on the parliamentary or public affairs channel because there will be considerable interest in them. In the same way as with tribunals, if it is held in public, will it be a very roundabout way of getting at the truth and enabling ComReg to proceed to the courts to get decisive action? Are we breaking new ground here as one of our first and most fundamental regulators, given it is such a significant part of the economy? Does the Minister believe we could have given ComReg a much smoother process to invigilate wrongdoing?

Mr. Browne

First, I will deal with the amendment. The purpose of this provision is to protect the person giving evidence from prosecution on the basis of the evidence given. This is a standard provision based on the principle of law. The proposed amendment goes beyond the scope of that provision and cannot be accepted. I must obtain further information for the Deputy. They are similar, but there are slight differences.

Chairman

How stands Deputy Durkan's amendment?

Mr. Durkan

I will reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

Section 10 agreed to.

NEW SECTION.

Mr. Broughan

I move amendment No. 41:

In page 18, before section 11, to insert the following new section:

11.—The Electronic Communications Appeals Panel is dissolved.".

This is a very simple amendment which provides for the dissolution of the electronic communications appeals panel. Obviously, the panel was intended in earlier times to be a speedier appeals process, but it seems to have had the opposite effect over the past year or so. The kind of feedback we, as communications spokespersons, receive from the industry is that many people see the electronic communications appeals panel as a device mostly used by the incumbent to prevent competition and tangle ComReg up in endless litigation, which is also my concern about the previous section. The actual anti-competitive practice, be it in respect of bundling the local loop, is not addressed.

I checked on the electronic communications appeals panel and I believe it was created under a ministerial instrument. Therefore, it does not need to be in primary legislation. What I am doing here is giving a signal to industry. Why do we need the electronic communications appeals panel if we have set up this new procedure for ComReg, it is permitted to appeal to the High Court and co-competition and significant penalties exist? Based on the feedback I have received from the industry, it appears the panel has not succeeded, has led to a morass of appeals and is simply another stage. As I previously stated, people tend to argue most about the incumbent. They argue the incumbent uses it to prevent effective competition at local loop areas. Although it is not necessary, I thought we might dissolve the electronic communications appeals panel as a signal of our determination to have a competitive communications industry.

Mr. Durkan

(a) an offence under section 53(2) of this Act,

(b) an offence under the European Communities (Electronic Communications Networks and Services) (Universal Services and Users’ Rights) Regulations (S.I. No. 308 of 2003), or

(c) an offence under the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations (S.I. No. 535 of 2003).”.”.

We have dealt with amendment No. 42.

Mr. Durkan

That was what I was complaining about.

SECTION 12.

Mr. Durkan

I move amendment No. 43:

In page 19, line 32, after "offence" to insert the following:

"provided that failure to prosecute does not militate against the legal entitlements of other persons, groups, service providers or undertakings".

It would be intriguing to hear the Minister of State's response.

Mr. Browne

Chairman

Is that agreed?

Mr. Browne

It is.

Amendment, by leave, withdrawn.

Section 12 agreed to.

SECTION 13.

Chairman

Amendments Nos. 44, and 48 to 51, inclusive, are related and will be discussed together.

Mr. Durkan

I move amendment No. 44:

In page 20, line 1, to delete "an oral or" and substitute "a".

Deputy Broughan tabled a similar amendment. Section 13 reads:

An undertaking shall not impose, or purport to impose, a charge--

(a) for supplying an electronic communications service or electronic communications product to a consumer that exceeds the amount for that service or product specified--

(i) in the undertaking's published tariff of charges, or

(ii) in an oral or written statement previously made or given to the consumer by the undertaking in relation to that supply,

As an oral statement would contain nothing, my amendment proposes a written statement. I do not know how one presents an oral statement as evidence if someone comes to one's door and makes an allegation. It is not admissible. While I did not consult with legal persons, I have serious reservations in the case of the example cited. A written statement is an allegation admissible in court, but an oral statement means nothing unless someone witnessed it. I will not waste the committee's time, but will the Minister of State examine the matter?

Chairman

Does that apply to the other amendments?

Mr. Durkan

The same applies in respect of amendment No. 48, which proposes to have the section read, "The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application provided that the body of evidence is sufficient". This relates to the seeking of an injunction in the High Court, which "may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1)".

My amendment is a belt and braces approach and is an attempt to eliminate frivolous or vexatious cases. The court is in a position to decide in any event, but as the Bill proposes to direct what the court may do and sets out how the law should be interpreted in a number of circumstances, it might be necessary to introduce my wording.

Amendments Nos. 49 and 50 are similar and related. Amendment No. 51 would insert wording to have that part of the section read:

The circumstances referred to in subsection (6) include (but are not limited to) the following:

(a) the duration of the contravention;

(b) the effect of the contravention on other parties to the relevant decision and on consumers having regard to independent assessment of its impact;

An as yet undetermined impact on some consumers, end users or the people involved may vary greatly and have a long-lasting effect over and above what is anticipated by the Bill. I would like to hear the Minister of State's reply.

Mr. Browne

It is not proposed to accept the amendments.

Mr. Durkan

I am breaking out again.

Chairman

The Minister of State without interruption.

Mr. Browne

The amendments tell the courts how to do their jobs. Whatever else we can do, we cannot interfere in the operation of the courts.

To delete the word "oral" would reduce the efficacy of the overcharging provisions. For example, if a customer was to agree to change his or her service provider based on an oral commitment and discovered subsequently that the charges in his or her first bill did not reflect the charges agreed orally, the overcharging provision should apply. Many potential customers receive oral commitments on telephone charges in person or by telephone. Such commitments should be accurate. As a matter of course, the High Court will decide matters before it based on sufficient evidence.

Mr. Durkan

I disagree with the Minister of State on the first amendment. How can one give legal standing to an oral agreement, suggestion or statement? Can the Chairman imagine what it would be like if one was held to statements made in the House or made from one segment of business to another? This requires a written statement.

The Minister of State suggested I was telling the courts what to do.

Mr. Browne

To satisfy the Deputy we will reconsider the matter of oral statements.

Mr. Durkan

Regarding the suggestion that I was telling the courts what to do, the subsequent section-----

Mr. Browne

The Deputy should not take matters so seriously.

Mr. Durkan

-----states the court may decide.

Chairman

In page 20, line 35, to delete "that section" and substitute "that subsection".

Amendment agreed to.

Mr. Browne

I move amendment No. 47:

In page 20, line 36, to delete "that section" and substitute "that subsection".

Amendment agreed to.

Amendments No. 48 to 51, inclusive, not moved.

Section 13, as amended, agreed to.

SECTION 14.

Mr. Broughan

I move amendment No. 52:

In page 22, to delete lines 14 and 15.

This section inserts the power for the Minister to make regulations giving effect to European Community instruments relating to communication matters. This is similar to the discussion we had on the European Community and administrative fines. The Minister can create an offence while acting under European legislation. The Labour Party believes it is not for a Minister to create an offence because that responsibility lies only with the Oireachtas under the Constitution. The subsection gives the Minister the power to create an offence with the possibility of a fine of €4 million. We have a longstanding concern about this. In the Seanad either the Minister or the Minister of State referred to Oireachtas scrutiny of European Community legislation inserted by statutory instrument because it is laid before the Houses for 21 days in the Oireachtas Library. Busy Deputies and Senators never get around to such scrutiny. The only time this happens is during a public debate in one of the Houses. Changing rates for the fishing industry is another example. It is rare that the statutory instruments are voted on on the Order of Business.

It is verging on the unconstitutional because such power should only be granted by statute of the Oireachtas. The amendments provide that the Minister will not have the ability to make the offence triable on indictment. We oppose this and also opposed the European Communities Bill in the Dáil and Seanad on the basis that there was a democratic deficit. The problem in the fishing industry, as highlighted by the Vincent Browne v Attorney General case, could come back to haunt us.

Mr. Durkan

I support the amendment.

Mr. Browne

The purpose of this section is to enable the Minister to make regulations to give effect to European Community legislation, with effective penalties for non-compliance by undertakings for serious breaches. The new powers will enable the Minister to implement any new changes to the framework in a timely manner. In a fast-changing, dynamic industry, such as the electronic communications sector, it is important to legislate in a timely manner. This section is a cornerstone of enhanced enforcement measures provided for ComReg in this Bill. The current EU framework transposed in 2003 is already under review and the EU Commission will make proposals to change the framework later this year. The current framework was transposed by regulation under the European Communities Act 1972 in order to meet the transposition deadline of that framework but the Act prohibited the creation of indictable offences at the time.

Chairman

There is a vote in the Dáil and we will have to suspend the meeting.

Amendment, by leave, withdrawn.

Sitting suspended at 6.50 p.m. and resumed at 7.45 p.m.

Mr. Durkan

I move amendment No. 53:

In page 22, line 23, after "relates" to insert the following:

"and provided he or she seeks prior approval and gives advance notice to the Oireachtas".

The amendment is the same as my colleague's previous amendment with reference to the introduction of the Oireachtas. I would prefer to vote on it but I will withdraw it pending revisiting it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 54 and 55 not moved.

Mr. Durkan

I move amendment No. 56:

In page 23, line 9, after "facility" to insert the following:

", the nature, quality or standard of the material transmitted if likely to be transmitted with particular reference to preventing internet grooming, child pornography".

I have been considering this amendment for some time because it concerns matters of particular interest. All the parliamentary questions we put down on these matters are referred to the Minister for Justice, Equality and Law Reform. However, the European Commission has indicated it is necessary to introduce procedures for controlling electronic technology with a view to tracking, identifying and locating purveyors of pornography or stalkers of women or children. That is a matter for RegTel and the other agencies with powers in the area of transmission of material. As far as I am aware, some jurisdictions have imposed restrictions which make it impossible for certain material to be transmitted. One such example is China, which has mechanisms to identify the precise nature of electronic communications and the channels through which they pass.

I do not refer to ordinary plain pornography intended for the pleasure of the watcher but to material of a serious and insidious nature. People are using the Internet and text messaging to target young children and gain their confidence in order to exert control over them. It is too late once the matter has reached the Department of Justice, Equality and Law Reform or the other European ministries with responsibility for home affairs. However, while individual countries may not have the requisite influence to close this market, the EU has the power to prevent it being facilitated by the use of electronic technologies. I feel strongly about this matter. People have come to my constituency clinic to discuss this kind of insidious behaviour, which particularly frightens parents of children between the ages of four and six and is recognised worldwide as being obnoxious. The time has come to challenge it. I have no problem with freedom of speech or adults entertaining each other any way they wish but I draw the line at behaviour which facilitates the pursuit of children by adults with ulterior motives. I hope the Minister of State takes account of my argument. I will, if necessary, resubmit my amendment on Report Stage.

Mr. Broughan

I sympathise with Deputy Durkan's amendment and commend him on proposing it.

I wish to ask the Minister of State about the broader issue of convergence. One of the problems with this Bill and the Broadcasting (Amendment) Bill 2006 is that they do not address issues of content. An old dictum in communications states that the medium is the message. The first part of our debate on the Broadcasting (Amendment) Bill concerned convergence. Companies such as NTL, which one might say is mainly responsible for content, and Eircom, which was primarily concerned with infrastructure, have become direct competitors in both telecommunications services and content. This amendment will probably be shot down on the basis of content.

I brought a similar amendment regarding RegTel and premium rate calls. Standard 3G technology now allows people to watch television and access the Internet through mobile telephones. Parents and others with responsibility for children have concerns about these matters but the Government seems to be standing idly by without taking a stand. Oireachtas staff have mechanisms to prevent access to spam and inappropriate material on the Internet. Children and young people are particularly vulnerable to becoming the victims of serious crimes. This mechanism could be utilised to encourage criminals to advance their cases. Maybe additional legislation is needed but I am disappointed this Bill and the Broadcasting (Amendment) Bill seem to avoid the issue of convergence.

In the context of the Broadcasting (Amendment) Bill, I considered the possibility of turning ComReg into our version of OfCom in order to enable it to regulate much of the communications sector. However, I would prefer public service broadcasting supported by public moneys to be regulated differently because the core content should be paramount. I do not think the Bill addresses these issues and we seem unprepared to accept that we are living increasingly in an era of convergence, in that content and transmission mechanisms are essentially becoming the same thing.

Mr. Browne

I am not prepared to accept this amendment. Most of the criminal activity perpetrated using the electronic communications network is legislated for according to the offence rather than the medium through which it is carried out. Some of this legislation predates the invention of electronic technology. Legislating in this regard does not always fall under the Minister's remit. If something is illegal off-line it is also generally illegal on-line. My colleague, the Minister for Justice, Equality and Law Reform, has responsibility for illegal Internet activity. The criminal law (trafficking in persons and sexual offences) Bill, which is currently being drafted in the Office of the Parliamentary Counsel, will include provisions to prohibit the sexual grooming of children, including by means of communication through the Internet.

I know but I thank him for his comments. They were well intended and reflect the representations we had received. The Department of Communications, Marine and Natural Resources is the appropriate Department for such an initiative. It would be too late if we waited for the Ministries of justice or home affairs throughout Europe to police the Internet. We need prevention and that is what parents want. The Chinese have already taken a stand and have decided to eliminate the medium that facilitates the activity which we are discussing. That might seem extreme but it means a network that does so will pay a price. I intend to table the amendment again on Report Stage.

I have said before in the House that some legislation introduced by Ministers is never the subject of a question from people outside the House but the public has asked me about this legislation. Mothers, in particular, are very concerned about this activity.

Mr. Browne

The media are tightly controlled in China, as I found out last week and the week before. There is not much democracy.

Mr. Durkan

The Minister of State's exploration of the Chinese system is very interesting and will, I am sure, be hugely beneficial. However, some things need to be done and cannot be avoided for ever.

Mr. Broughan

Did the Minister of State not meet the Fianna Fáil cumann in Shanghai?

Mr. Browne

I did so in Beijing.

Mr. Broughan

Fianna Fáil was there somewhere.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 57 to 60, inclusive, will be discussed together.

Mr. Durkan

I move amendment No. 57:

In page 23, line 32, after "the" to insert "continuation or prolongation of the".

This relates to the proposed new section 46A(5)(b), which states that regulations may, “subject to subsection (6), make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the act or omission to which the offence relates”. The amendment strengthens and improves the fairness of the section.

Amendment No. 58 relates to the maximum fine provided for under section 46A(6)(a) and proposes that, in respect of the conviction on indictment of a body corporate of an offence under the regulations, the fine shall be of sufficient severity to end the act or practice and prevent repetition. We all received submissions on this issue and people will support the original proposal to varying degrees. The fine provided for in the Bill could be well within the capacity of a large body corporate to pay. The fine can also be 10% of the turnover of the body corporate but I felt the best way was to hold it open. The proposed penalty of €4 million could be huge for some bodies but minuscule for others.

Mr. Broughan

I looked at some company reports and one had a turnover of €780 million so wondered why the figure of €4 million was picked. Was it because a fine for €5 million is provided for in the Financial Regulator's legislation? The figure of €4 million represents approximately 0.5% of the turnover of the company into whose accounts I looked. It would amount to a slap on the wrists but not too hard a slap. I put down the amendments to provoke discussion and learn why the figure was adopted. In the Ofcom Bill in the UK the penalty was up to 10% of turnover, which my amendment No. 60 proposes and which would be €75 million for the company to which I referred. Taking a large, successful telecommunications company as an example, the fine of €4 million would, while embarrassing, be derisory so why not set the fine at 10%? We have had this debate and received a very good briefing on this from the civil servants. We have considered the idea of sanctions and the difficulty we have in our constitutional and judicial system of giving ComReg even greater latitude to allow it directly impose sanctions. Given that it must still go through a rigmarole to get to this point, I would wonder where the figure of €4 million came from.

Why is it not just left to a figure up to 10% of turnover for a company that would have messed up the communications performance of the economy? If it was left as such it could be introduced in a straightforward way.

Mr. Browne

On amendment No. 57, section 46A(7) already provides that regulations made by the Minister under that section may provide for additional daily fines for offences of a continuing nature. The aim of this is to provide for effective and proportionate penalties for an offence.

On amendments Nos. 58 to 60, inclusive, the penalties provided in this subsection are in line with penalties previously provided for indictable offences under the Postal and Telecommunications Services Act 1983 as amended by the principal Act. They are also in line with penalties that may be imposed for indictable offences under the Competition Act 2002.

The court will have discretion taking into consideration the size of the undertaking concerned and its annual turnover to decide on the amount of penalty imposed. Given the variation in the size of the operators involved in the sector, from small indigenous companies to very large multinationals, the provision for a defined financial penalty of up to €4 million, or if 10% of turnover is greater than that amount, a fine equal to 10% of turnover, is considered appropriate and proportionate.

The €4 million figure was in the Communications Regulation Act 2002. We took the same figure on board here.

Mr. Broughan

What about inflation?

Mr. Durkan

We know that.

Mr. Browne

If the Deputy so wishes we will consider the matter again before Report Stage to take into account the points made.

Amendment, by leave, withdrawn.

Amendments Nos. 58 to 61, inclusive, not moved.

Chairman

Amendments Nos. 62, 63, 65 and 66 are related and may be discussed together.

Mr. Browne

I move amendment No. 62:

In page 24, between lines 3 and 4, to insert the following:

"(7) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations under subsection (1), (2) or (3), provide —

(a) for the High Court, on application by the Commission or some other person specified in the regulations, to make -

(i) an order requiring a specified person, or a person belonging to a specified class, to comply with an obligation imposed by or under the regulations, or

(ii) an order restraining such a person from continuing to contravene a prohibition or restriction specified in or under the regulations, and

(b) for the High Court, on being satisfied that such a person has failed to comply with such an obligation, or has contravened such a prohibition or restriction, to order the person to pay a financial penalty of such amount as the Court considers appropriate, having regard to the circumstances of the failure to comply or contravention, including —

(i) the duration of the failure to comply or the contravention,

(ii) the effect of the failure to comply or contravention on consumers or users of the service or product provided or supplied by the person and on the person's competitors,

(iii) the submissions of the Commission as to the appropriate amount of the penalty to be imposed, and

(iv) any excuse or explanation given by the person with respect to the failure to comply or contravention.".

I am surprised Fine Gael wants to stay on the slow coach all the time. I can move on.

Mr. Durkan

I attended the meeting of the postal services unions not so long ago. Lo and behold, what was the request of the combined audience but political direction. They wanted to know which way they were supposed to go and the anticipated format of future postal services. Given the service provided to this land by the postal authorities since long before the foundation of the State we owe them this much. I draw the Chairman's attention to this amendment, which has been introduced by the Minister. We anticipated it by tabling a series of amendments that happened to coincide, without any discussion between us, simply because a concern exists in this regard.

I oppose the Minister's proposal in this area because sufficient discussions have not yet taken place and we have not seen the format that the postal services will take in the future. We have been given no information and this, it has been suggested in some quarters, is an attempt to allow the postal services to wither on the vine after which we will pick up the remaining pieces.

Would the Chairman like a vote on this?

Amendment put and declared carried.

Mr. Browne

I move amendment No. 63:

In page 24, line 4, to delete "(7)" and substitute "(8)".

Amendment agreed to.

Mr. Durkan

I move amendment No. 64:

In page 24, line 9, after "may," to insert "with the prior approval of the Oireachtas".

This introduces our old friends in the Oireachtas and I will withdraw it so it can be resubmitted at a later stage.

Amendment, by leave, withdrawn.

Mr. Browne

I move amendment No. 65:

In page 24, line 31, to delete "(8)" and substitute "(9)".

Amendment agreed to.

Mr. Browne

I move amendment No. 66:

In page 24, line 35, to delete "(9)" and substitute "(10)".

Amendment agreed to.

Chairman

Amendment No. 66a is on the first additional list of amendments circulated on Tuesday, 20 March.

Mr. Durkan

I move amendment No. 66e:

In page 27, line 33, after "sharing" to insert "based on consumer needs or market requirements".

This area of the Bill relates to the power of the High Court to make compliance orders in respect of conditions imposed under section 57. It states the following:

If, in making a decision under section 57, the Commission has imposed conditions for infrastructure sharing, and it appears to the Commission that a network operator or physical infrastructure provider to whom the decision 35 relates is failing, or has failed, to comply with any of those conditions, the Commission may apply to the High Court to make a compliance order under subsection (5).

I have no problem with this but it goes on to list various conditions. I tabled this amendment to hear the Minister's comments because two issues arise.

Mr. Browne

The types of conditions for infrastructure sharing imposed by ComReg are set out in section 57 of the principal Act. These include conditions requiring conformity in standards of operation, maintenance and repair, quality of service and rules for apportionment of costs. The requirement for infrastructure sharing will, in the first place, be in response to consumer needs and market requirements, therefore this amendment is not necessary.

Mr. Durkan

We had a situation relating to a particular service provider that we discussed earlier and in that case neither consumer needs nor market requirements were met. The consumer was left swinging in mid air, without a service and without warning. Deputy Broughan has already referred to this.

I will withdraw this amendment and return to it at a later stage.

Amendment, by leave, withdrawn.

Amendments Nos. 66f and 66g not moved.

Section 15 agreed to.

SECTION 16.

Chairman

Amendments Nos. 66h and 66i are related and will be discussed together.

Mr. Durkan

I move amendment No. 66h:

In page 29, line 31, after "service" to insert the following:

"including any charges arising from previous provisions or commitments and taking into account any outstanding or mature debts or those likely to arise".

Under this section the Minister has the power to enter into contract for the operation of an emergency call answering service. If my amendment is accepted the section will state:

The Minister may enter into a contract with a person under which the person undertakes to operate an emergency call answering service for a specified period. The contract shall specify terms and conditions for the effective operation of the service and, in particular, shall---

(a) specify the maximum call handling fee that the operator...during the first 2 years of the service, including any charges arising from previous provisions or commitments and taking into account any outstanding and mature debts or those likely to arise.

Did you throw yourself on the mercy of the court in that case?

Some imponderables may arise with the emergency call answering service, ECAS, in terms of who has responsibility, who will carry the financial burden over a period and, in the event of a review and responsibility being handed over to somebody else, who will accept financial responsibility in the interim. This is a necessary emergency service that must be treated seriously at all times. I ask the Minister to accept the amendment but if he cannot, I will be happy to resubmit it on Report Stage.

Mr. Browne

I will resubmit the amendment on Report Stage.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 67 is in the name of Deputy Broughan. Amendment No. a67d is related, No. 67d is an alternative to a67d and therefore the amendments may be discussed together.

Mr. Broughan

I move amendment No. 67:

In page 30, between lines 30 and 31, to insert the following:

"58D—(1) A payment regime will be introduced with immediate effect which will oblige all undertakings who forward calls to the current ECAS operator to make a payment to the current ECAS provider.

(2) This payment arrangement will remain in force until any new ECAS undertaking enters into a contract with the State for the future provision of the ECAS service.

(3) During this interim period, the per call fee payable to the current ECAS provider shall be specified by the Commission.".

We anticipated discussion on the section when dealing with the previous amendments. There were wide-ranging discussions on this issue and I felt the incumbent and the operator of the emergency call answering service, Eircom, made a strong case regarding the problems the company has experienced recently in carrying the service. Every European Union member state is obliged to ensure the emergency call answering service is operated in an efficient way, that there is relatively free access and so on but the case Eircom made concerned a growth in calls - often multiple calls - from mobile phones about the one incident. The Bill envisages a new tendering process in future whereby all the operators and providers will have to share in the cost but regarding the interim period, Eircom makes the case that it spends approximately €6 million on providing the service while the other operators - I understand Vodafone, O2 and BT have been mentioned - are refusing to enter into a voluntary agreement in that regard.

The Minister said in response to Deputy Durkan that he will put in place an interim regime because the Bill does not specify a date for the establishment of the new independent entity. I have been hard on the incumbent regarding competition issues but it makes the case that it has cost approximately €30 million to run the service in the past five years, which it believes is unfair, and that the entire industry should be responsible for the cost. That is why I want to insert the new subsection 58D covering a new payment regime with immediate effect. If that is what the Minister is saying he intends to do, that is welcome but under my amendment, all undertakings which forward calls will make a payment to the current ECAS provider, which is Eircom; the payment arrangement will remain in force until any new ECAS undertaking enters into a contract; and the per call fee payable to the current ECAS provider will be specified by ComReg. The Minister has already made a partial response and I ask him to do something in that regard. It appears in this instance that the current position is unfair to the incumbent, which in this regard has made a good case because this is a vital national service which the public regards as critically important, as can be seen on a daily basis on the news and so on.

Chairman

I ask the Minister of State to deal with his amendment No. 67d, when responding to this amendment.

Mr. Browne

It is not proposed to accept amendment No. 67 on the basis that the Minister's amendment will address the issue raised by the Deputy.

On amendment No. a67d, traditionally, the provision of emergency call handling has been provided by Eircom. There is no contract in place currently for the provision of the service. The provision is costing Eircom approximately €6 million per year and it has indicated it is unable to recover the costs from the operators who forward emergency calls to it.

The Bill will provide an opportunity to establish the emergency call answering service on a statutory basis. This will provide for the setting up of an emergency call answering facility to replace the service, currently provided by Eircom, to be operated by an undertaking and to be paid for by industry. It is considered that the tender process and the setting up of the new call centres will take up to 18 months.

In view of the costs of the provision of the service, the proposed amendment provides for Eircom to be paid for the service on an interim basis pending the setting up of the service. The proposed amendment provides for the fee by operators who forward emergency calls to Eircom to be paid on the basis of a fee per call. The fee shall be determined by the Commission for Communications Regulation and shall follow a consultation with relevant stakeholders.

Mr. Broughan

It appears the Minister's amendment deals with the issue and on that basis I will withdraw the amendment.

Amendment, by leave, withdrawn.

Chairman

When we resume after the vote in the Dáil we will deal with amendment No. 67a in the name of Deputy Durkan.

Mr. Durkan

Can I not move it and withdraw it now?

Mr. Broughan

Will we not have time to have a late tea before we resume and draw stumps on the Bill?

Chairman

If we do that, we will be here all night.

Mr. Browne

It is not proposed to accept amendment No. 67d but we will consider the issue further and respond to the Deputy on Report Stage.

Mr. Broughan

That is excellent.

Chairman

We will deal with amendment No. 67a and try to dispose of this section before we suspend.

Amendments Nos. 67a to 67c, inclusive, not moved.

Mr. Browne

I move amendment No. a67d:

In page 31, line 31, to delete "Commission."." and substitute the following:

"Commission.

58H.—(1) In this section—

‘call handling fee' means a fee fixed under subsection (2), and includes that amount as varied under that subsection;

‘current operator', in relation to the emergency call answering service operating at the commencement of this section, means Eircom plc;

‘payment period' means the period beginning with the date on which an order made under subsection (2) takes effect and ending with—

(a) the date (as publicly notified by the Minister) on which a contract entered into under section 58B becomes fully effective, or

(b) the day that falls 18 months after the date on which the order takes effect, or such extended period as the Minister may allow,

whichever first occurs.

(2) The Commission may, by notice published in the Iris Oifigiúil, fix the amount of the call handling fee payable under subsection (5), and may from time to time, by similar order, vary the amount of that fee. In fixing the amount of the fee, the Commission shall take into account the need to ensure the effectiveness and efficiency of the operator of the service.

(3) An order made under subsection (2) ceases to have effect at the end of the payment period.

(4) Before making an order under subsection (2) (including an order varying the call handling fee), the Commission shall convene one or more meetings to which it must invite all undertakings that carry on business in the State and such users of electronic communications services as it thinks appropriate.

(5) During the payment period, each entity that forwards emergency calls to the current operator during a month or part of a month that falls during that period, shall, within 45 days after the end of that month, pay to that operator for each of those calls a call fee fixed in accordance with subsection (2).

(6) If call handling fees are not paid by the deadline fixed for payment, the current operator may, by proceedings brought in a court of competent jurisdiction, recover as a debt due to that operator any amount of fees that remain outstanding.

(7) A call handling fee is payable in respect of an emergency call even if the call is not forwarded to the emergency service concerned.

(8) To enable the Minister to award and enter into an ECAS contract, the current operator shall, so far as it is able to do so, provide the Minister with such cooperation and assistance as the Minister reasonably requires in writing.

(9) If it appears to the Minister that the current operator is failing to provide the level of co-operation and assistance required under subsection (8), the Minister may apply to the High Court to make a compliance order under subsection (12). Such an application is to be by motion.

(10) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the current operator. On being served with such a copy, the current operator becomes the respondent to the application.

(11) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (9). The Court may not refuse interim or interlocutory relief merely because the Minister may not suffer damage if relief were not granted pending determination of the application.

(12) On the hearing of an application made under subsection (9), the High Court may make an order requiring the current operator to comply with the relevant requirements or may refuse the application.

(13) If the High Court makes an order under subsection (12), it may make such ancillary orders as it considers appropriate.".".

Amendment agreed to.

Mr. Durkan

The Minister of State has agreed to consider amendment No. 67d before Report Stage when I will resubmit it.

Amendment No. 67d not moved.

Section 16, as amended, agreed to.

Section 17 agreed to.

Chairman

When we resume we have to deal with sections 18 to 31.

A Deputy

At what time will we resume?

Chairman

After the vote.

Mr. Durkan

Will the Chairman allow me a half an hour to dispose of the Carbon Fund Bill? I do not know how long it will take to deal with it. It might be easier for me to get a Member of the Dáil to police that Bill than it would be to get a Member of the Dáil to police this Bill.

Chairman

I am advised by the clerk to the committee that amendments Nos. 68 to 90 are technical in nature. Can we dispose of them now and then we will suspend the meeting for half an hour?

SECTION 18.

Mr. Browne

I move amendment No. 90:

In page 36, line 25, to delete "(65)" and substitute "(66)".

Amendment agreed to.

Section 18, as amended, agreed to.

Sitting suspended at 8.45 p.m. and resumed at 9.30 p.m.

Section 19 agreed to.

SECTION 20.

Amendment No. 90a not moved.

Mr. Browne

I move amendment No. 91:

The .ie can be used anywhere in the world but it can only be registered in this country.

Amendment agreed to.

Chairman

Amendment No. 92a is related to amendment No. 91a. Amendments Nos. 91a and 92a can be discussed together.

Mr. Durkan

I move amendment No. 91a:

In page 37, line 11, after "registered" to insert "and operated".

This provides that a person shall not use in the State an .ie domain unless the name is registered and operated according to the regulations made under this section. This relates to some of the matters we referred to previously. It is probably a sneaky way of reintroducing the subject of our discussion on pornography and the associated problems. If it did not fit in at one place, it was worthwhile introducing it another way to re-examine it. I presume it will be given the same treatment by the Minister, who is not in a receptive mood today. To save time and energy, I propose to withdraw it and resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 91b not moved.

Mr. Broughan

I move amendment No. 92:

In page 37, between lines 23 and 24, to insert the following:

"(b) ensure that the ‘.ie’ domain name is maintained at the most price competitive level as practicable;”.

This refers to the registration of the .ie domain name and the role of the IEDR. The domain name was started in UCD and run as a UCD company. It has now emerged as the IEDR with the task of registration. The complaint was often made, and it was my experience when registering my name for my website, that the .ie name is expensive. I made that point on Second Stage. I was given a good briefing from the IEDR about this and the steps it is taking to make the .ie domain as competitive as possible. There appears to have been an improvement in that regard.

This country has several small businesses but there are still relatively few — approximately 55,000 — .ie domain users. Many people tend to use .com. We were advised to register with a number of domains, such as .org, .net and .bus. In fact, there was a report in one of the newspapers about the .eu domain. According to that, the Labour Party.eu name is registered in Cyprus and so forth. There is great dissatisfaction about the control of these domains, although .eu is somewhat different.

I commend the civil servants and the Minister for introducing this provision and seeking to keep our registry in good order. The provision is well intended. However, one can get the .com designation for approximately €8 while the .ie name is approximately €65. The amendment makes a fair point about keeping the price as competitive as possible. It is an additional cost, particularly for small businesses, and we should try to keep it competitive.

Mr. Browne

I do not propose to accept the amendment. The existing provisions can deal with this issue. ComReg will make the regulations regarding fees, not the domain registry.

Amendment, by leave, withdrawn.

Mr. Durkan

I move amendment No. 92a:

In page 37, line 31, after "registered" to insert "and or operated".

Like the other amendments, I do not propose to allow it suffer the indignity of being rejected by the Minister of State. I will withdraw and resubmit it.

Amendment, by leave, withdrawn.

Mr. Durkan

I move amendment No. 92b:

In page 38, line 10, before "to" to insert ", following appraisal of the Minister,".

This amendment gives recognition to the primacy and eminence of the Minister. It is not my wont to introduce amendments of this nature, as the Chairman will recall from numerous interruptions in the past, but it is no harm to provide for ministerial approval. The amendment inserts the phrase "following appraisal of the Minister".

Mr. Browne

Section 20, as amended, agreed to.

Amendments Nos. 92e to 92g, inclusive, not moved.

Section 21 agreed to.

SECTION 22.

Mr. Durkan

I move amendment No. 92h:

In page 40, line 15, after "authority" to insert the following:

"unless evidence suggests otherwise to the effect that concurrence is not required".

I have not had time to consult the various Acts that are amended in compliance with this Bill, but I am concerned by the degree to which amendments have this effect. This section states that "if the competent authority that made the declaration later formed the opinion that the category no longer complies with those conditions, it may revoke the declaration but only with the concurrence of the competent authority". The amendment seeks to insert the following wording after the word "authority", "unless evidence suggests otherwise to the effect that concurrence is not required". That may well be the case in certain circumstances, which I will not go into. We are all getting tired at this stage but I will deal with it on Report Stage. Perhaps the Minister of State and his officials could examine this matter for Report Stage. My amendment might be helpful if various scenarios arose.

Chairman

Will the Minister of State examine that for Report Stage?

Mr. Browne

Yes, I will.

Amendment, by leave, withdrawn.

Section 22 agreed to.

Sections 23 to 26, inclusive, agreed to.

SECTION 27.

Mr. Durkan

I move amendment No. 92i:

In page 41, paragraph (a), line 4, after “Commission” where it firstly occurs, to insert “or its representatives”.

I ask the Minister of State to examine this matter for Report Stage.

Amendment, by leave, withdrawn.

Section 27 agreed to.

SECTION 28.

Mr. Durkan

I move amendment No. 92j:

In page 41, line 13, after "apply" to insert "unless otherwise stated".

Yes.

Amendment, by leave, withdrawn.

Section 28 agreed to.

SECTION 29.

Mr. Durkan

I move amendment No. 92k:

In page 41, line 28, after "staff" to insert the following:

"or an otherwise designated person in the event of disclosure being detrimental to the interests of the informer".

This amendment concerns a belt-and-braces idea. The section states, "However, in the case of an offence under sections 6 or 7 relating to the provision of electronic communications services, or electronic communications networks or associated facilities, an authorised person may also disclose the information to the commission, a member of the commission or a member of the commission staff". My amendment seeks to insert the following after the word "staff": "or an otherwise designated person in the event of disclosure being detrimental to the interests of the informer". We have discussed this matter at considerable length and Deputy Rabbitte has pursued it in the context of the whistleblower legislation. Deputy Broughan has also referred to it when tabling amendments. Having considered the provision for a long time, I could foresee a situation where it may be necessary in order to protect adequately a person who may be in a critical situation in a particular operation. They may have access to sensitive information and might have to be represented by an otherwise designated person in the event of disclosure being detrimental to the interests of the informer. It is a crude way of putting it in the amendment because the word "informer" is not nice. The Minister of State might review the matter to see whether such a proposal could be inserted, perhaps using different phraseology. It could be helpful and reassuring to all concerned where such a disclosure might be difficult as it could pose a threat to the person who proposes to disclose particularly sensitive information. I will be happy if the Minister of State can respond to this matter on Report Stage.

Amendment, by leave, withdrawn.

Mr. Durkan

I move amendment No. 92l:

In page 41, lines 35 to 37, to delete all words from and including "belonging" in line 35 down to and including "subsection (5)." " in line 41 and substitute the following:

"authorised by the Minister with prior approval of the Oireachtas".

Chairman

Is the amendment being withdrawn, since it has already been discussed?

Mr. Durkan

I know we have already discussed it but it is my old favourite, so I must make some remarks in passing. The amendment seeks to insert the words "authorised by the Minister with prior approval of the Oireachtas". If the term "belt and braces" was ever meant to apply to a proposal, this one is the ultimate in terms of providing leverage, coverage and protection. I am moving it for the Minister of State's approval. We will return to it on Report Stage when I will agree readily to his proposal to incorporate it in the Bill.

Amendment, by leave, withdrawn.

Section 29 agreed to.

SECTION 30.

Chairman

Amendments Nos. 92m, 93a , 93c and 94a are related and may be discussed together.

Mr. Durkan

I move amendment No. 92m:

In page 42, line 10, after "provision" to insert ", proposed provision and proposed withdrawal".

These amendments are repetitious and propose to insert after the word "provision" the words ", proposed provision and proposed withdrawal", either of which could have a bearing on the availability of a service. There could be a proposer to provide a service or to withdraw a service. We have had both suggestions in the past. It depends on the degree to which the proposed operator is in a position to provide a service.

At some stage in the future, a critical examination will have to take place. This will fall to the regulatory system in the first instance but political responsibility also comes into play. Where there is a proposal to provide a service - in this case it is a utility service - consumers, whether industrial, commercial or domestic, can be provided with or left without it, depending on the integrity and strength of the proposed service. We have seen the withdrawal of a service by an institution to which reference was made on numerous occasions in this debate. I do not propose to go into this matter further other than to state that the insertion of the words "proposed provision and proposed withdrawal" would be helpful.

Amendment, by leave, withdrawn.

Mr. Broughan

I move amendment No. 93:

In page 42, between lines 12 and 13, to insert the following:

"47B--In relation to an investigation carried out by the Commission or of a complaint made to it by any person regarding an agreement, decision or practice of a kind specified in Section 4 or an occurrence of the abuse of the kind specified in Section 5 involving the provision of an electronic communications service or an electronic communications network or associated facilities the Commission shall take the initiative to investigate such a complaint.".

This amendment relates to the Competition Act which gives co-competition powers to ComReg with the Competition Authority. I have read section 47 of the original Act and the previous sections, and I know there is a proviso for co-operation agreements, to which amendment No. 95 relates. Section 47A states that the commission can investigate "either on its own initiative or in response to a complaint made to it by any person, the existence of an agreement, decision or a practice". That should perhaps be stronger and I have tried to recast it in section 47B. My amendment No. 93 states:

I have very efficient officials, but the Deputy can remind us.

Mr. Durkan

What is the name of the place to which the Minister has gone?

Mr. Broughan

Palo Alto.

Amendment, by leave, withdrawn.

Amendment No. 93c not moved.

Mr. Browne

I move amendment No. 94:

In page 43, line 9, after "Part 2" to insert "(section 4(3) excepted)".

Amendment agreed to.

Amendment No. 94a not moved.

Mr. Durkan

I move amendment No. 94b:

In page 43, between lines 27 and 28, to insert the following:

"(c) take into account representations of consumers and e-mail users.”.

I apologise that this amendment is not correctly written. It is not my secretary's fault but my bad writing. It should have stated "take into account representations of consumers or end users". I will table the amendment again on Report Stage.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 95 and 95a are related and may be discussed together.

Mr. Broughan

I move amendment No. 95:

In page 44, between lines 26 and 27, to insert the following:

"(5) A cooperation agreement and any variation to it shall be laid before both Houses of the Oireachtas.".

This amendment relates to the very important co-operation agreements between the Competition Authority and ComReg. The new section 47G refers to facilitating performance, avoiding duplication, consistency between decisions made and so on. Given that the matter we have discussed for the past eight hours is so important to the economy and to society, the co-operation agreement reached should be laid before the Oireachtas Library where it will remain for 21 sitting days before having legal effect, and this should also be the case if it was changed in the future when the two regulators negotiate.

The Taoiseach is interested in looking at the performance of regulators. My colleagues in Fine Gael have put forward the idea of a super regulator. On behalf of the Labour Party, I put forward the idea that there would be a court of regulation which would specialise in appeals from the regulators. It is an important area.

The Competition Authority is a critical authority as well, although I have not been happy with its operation in recent times, particularly on the oil industry. As I told Mr. Prasifka on his visit to our committee, he had an interest in many subjects but the authority did not make a ruling on the subject that is of most concern to him. These agreements should be laid before the Houses.

Mr. Durkan

I support the amendment. I bring to the attention of the committee the slight mistake in amendment No. 95a. My handwriting was not as it should have been. It must have been getting late in the proceedings or perhaps I was distracted by the racing on television. In any event, it should read:

"(c) that a copy of the agreement or variation of the agreement has been lodged in the

Oireachtas library where it will remain for 21 sitting days before having legal effect.".

It would do exactly the same job that Deputy Broughan's amendment purports to do. It would bring back into focus the need for consultation with the Oireachtas, by one means or another. This is the least we should be prepared to do to ensure that the Oireachtas is in some way consulted, that in the future somebody does not run off half-cocked and decide to do something that could have serious implications for the Oireachtas or for the Minister, and that that area of consultation could be reinforced.

In the past I have been critical of the regulatory system. The system, as transposed into Irish law, has not worked satisfactorily or effectively. From the point of view of the consumer, in particular, some of the matters emanating from transposition from European law into Irish law are totally unworkable and will be seen to be so, and are technocratic impositions that do not seem to have been thought out.

It is of vital importance that we recognise that we, in this humble Parliament, have a responsibility to the people of this country whom we represent. Notwithstanding the highly qualified persons who exist in the centre of the democracy in Europe, we have an equal right to suggest major change in the entire regulatory system, not to encumber and smother the people with an entire new bureaucratic amorphous mass, but to provide a system that is responsive and effective and that applies acumen to dealing with the matters that arise rather than taking a blunderbuss approach and shooting everything on sight, from where one would have to begin from zero again. Those two amendments are important and I hope the Minister of State will return on Report Stage with something on them.

Mr. Browne

We will look at amendment No. 95 in particular. We will have to speak to the Department of Enterprise, Trade and Employment because that Department is involved in it as well. We will do that and return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 95a not moved.

Section 30, as amended, agreed to.

Section 31 agreed to.

SCHEDULE 1.

Mr. Broughan

I move amendment No. 96:

In page 49, between lines 19 and 20 , to insert the following:

(2) In this section a message sent by electronic mail or text message is deemed to be sent by telephone.

One of the complications of the Bill and the reason it has been such hard work for everybody, starting with our public servants, is that it amends three major Acts, but there is a fourth major Act involved, the Post Office (Amendment) Act 1951. Astonishingly, we are amending an Act of 1951.

For clarity, I want to add something which relates to offences in connection with telephones. This is a matter which has become very important, particularly to parents, but to all citizens, where telephones and texting can be used as instruments of harassment or bullying, causing great pain to vulnerable children and citizens.

There are telephone calls which are problematic and distressing to the recipients. The amendment to section 13 of the 1951 Act states that a person who sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or for the purpose of causing annoyance, inconvenience or needless anxiety etc. commits a serious offence. I commend the Minister on that provision.

I want to add that in this section a message sent by electronic mail or text message is deemed to be sent by telephone. This is an extremely important section and it is essential to provide clear language to ensure that e-mails and texts are definitely covered. Cyber bullying, text bullying and telephone bullying are a significant problem and the law needs to cover all these activities.

When the Bill was before the Seanad, the Minister's reply was unsatisfactory. He refused the Labour Party amendment stating that he could not deal with it at this point in the Bill and that he felt what the Labour Party proposed fell outside the scope of the Bill, but since the offence is set out in full in this Bill we are only seeking to extend the terms of the offence. The Minister, Deputy Noel Dempsey, stated in the Seanad that the law on harassment covers the point, but my legal advice is that it does not. While it is true that harassment is an offence, it is defined by the Non-Fatal Offences Against the Person Act 1997 as requiring "repeated misconduct on the part of a person", but the issue of a once-off threatening message by e-mail, for example, would not necessarily constitute harassment as the law stands. We believe our amendment is necessary.

As Deputy Broughan stated, this is a complex issue. It was raised in the Seanad and the Dáil and I have agreed to re-examine it.

Mr. Broughan

The Minister, Deputy Noel Dempsey, who is currently in Palo Alto, it probably reading The Irish Times via his Blackberry. He could be watching these proceedings via webcast.

Chairman
Share

The Minister of State has agreed that this amendment-----

Mr. Browne
Share

We will see how far we can go in respect of it.

Chairman
Share

I presume the officials are not insulated from the issues. I am sure that, as parents, they are aware of those issues. We do not want to have to legislate in respect of those issues two years from now.

Mr. Browne
Share

Like all of us, the officials are open to what is being said. However, we will be obliged to reconsider the position to find a way to deal with this matter.

Mr. Durkan
Share

A guillotine will be applied to the Bill on Report Stage. I advise the Minister of State to avoid such an eventuality. This legislation has the potential to create serious problems, particularly if it is the subject of a guillotine. We will sit as late as necessary to ensure that it is dealt with properly. I am sure the Minister will have returned from Palo Alto by the time Report Stage is taken.

Chairman
Share

How stands the amendment?

Mr. Broughan
Share

I would like to call a vote on it, particularly in light of the legal advice I received. However, I am conscious of the fact that Deputy Fitzpatrick is attending a function elsewhere.

Mr. Browne
Share

We will reconsider the matter to see how it can be dealt with.

Mr. Broughan
Share

This Bill is one of the most important with which we will deal in the remaining few weeks of this Dáil's lifetime. It would be good if we were given four or five hours Dáil time to engage in a thorough Report Stage debate on it. On the basis of the goodwill shown by the Minister of State, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

SCHEDULE 2.

Mr. Browne
Share

I move amendment No. 97:

In page 74, to delete lines 16 to 25.

Amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Title agreed to.

Chairman
Share

I thank the Minister of State and his officials for attending.

Mr. Browne
Share

I thank the Chairman and his officials for their work on the Bill over the past eight and a half hours. I thank the Opposition spokespersons for their dedication and commitment to the Bill and for their support in ensuring its passage through Committee Stage. I also thank my officials for their help and support not just today but over a number of weeks. I would also like to acknowledge the presence of ComReg officials who have been keeping an eye on us to make sure we do not interfere too much with their workings.

Mr. Durkan
Share

I compliment the Chairman for his joviality, tolerance and conviviality throughout the entire debate. I acknowledge the Minister of State's willingness to respond positively to a number of our amendments in due course. I would like to thank the staff of the Bills Office, in particular, for being extremely helpful in difficult circumstances. They produced a series of amendments under severe pressure, which was well above the call of duty, and we owe them a tremendous debt of gratitude.

I compliment the Minister of State and his officials for their input. I hope the ComReg officials do not take seriously the grumpy comments we make in these circumstances. It is like a football match. Every time one puts the boot in, one does not necessarily mean to wound an opposition player. I did not have the time to cross-reference the Acts listed in the Schedules, including European legislation. It is extraordinarily dangerous not to do that with complicated legislation that has wider implications than appear to be the case. I hope emergency legislation will not be needed in 18 months to address the issues that we have not had the time to discuss.

Mr. Broughan
Share

I thank the Minister of State for his typically genial conduct of the Bill through this Stage and I also thank his officials for staying with us and grappling with this important legislation. I would like to thank Deputy O'Flynn for his chairmanship of the committee. This is probably the final meeting of the select committee and I will miss it as much as a lengthy visit to the dentist. The committee probably leads the championship in the number of meetings it has held and the number of reports it has produced with the assistance of our hard working clerk and staff. This is a difficult portfolio and the likelihood is that, no matter what the complexion of the next Government, the Department will be no more, as it will be split up. It is a difficult Department for the Chairman, the clerk and his staff to invigilate. While it is a relatively small Department in the context of its purchasing power, it is significant in terms of policy. The likelihood is new energy and communications Departments will be established following the election. It is an historic night as we conclude a great deal of hard work over the past four years. I commend the staff of the Oireachtas, the departmental staff and the Chairman for getting through it.

Chairman
Share

I would like to put on record my appreciation for all the work done by the clerk, Mr. Ronan Lenihan, and Ms Murtagh on legislation and other issues over the past four years. We must still debate the Department's Estimates but I hope that will be a brief meeting because we are losing the appetite for meetings as we concentrate on more important issues. I thank the editorial and broadcasting staff, the ushers and other Oireachtas staff who have supported us over the years.

Bill reported with amendments.

Business of Select Committee.

Back to table of contents

Message to the Dáil.

SELECT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate - Wednesday, 21 Mar 2007

Communications Regulation (Amendment) Bill 2007 [Seanad]: Committee Stage.

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SELECT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate -
Wednesday, 21 Mar 2007