On the last occasion I spoke in this debate I referred to a speech by Mr. David Byrne, SC, then Attorney General and now an EU Commissioner, on 12 November 1998 which I regard as a seminal contribution to the role of the regulator. Discussing the role of the regulator he quoted Article 15.2 of the Constitution. He also referred to the 1980 case of Cityview Press v. An Chomhairle Ealaíon and quoted from the judgment as follows:
In the view of this court the test is whether that which is challenged as unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised for such would constitute a purported exercise of legislative power by an authority, which it is not permitted to do so under the Constitution. On the other hand, if it be deemed within the permitted limits, if the laws laid down in the statute and details only are filled in or completed by the designate Minister or subordinate body, there is no unauthorised delegation of legislative power.
Mr. Byrne went on to comment on this when he stated:
The idea that regulators only fill in details may sound odd to the ears of those regulators who know the huge care for labour intensive specialist consideration which their jobs require them to give to their decisions and, indeed, the great social and commercial importance those decisions may have. However, that is the accurate statement of the relationship between their tasks and the task of the Oireachtas.
After this the Minister embarked on what appeared to be a consultation on the role of the regulator in the different areas over which she had some jurisdiction and for which she has responsibility.
However, many, including the Labour Party, made a submission to the consultative process on the accountability of regulators. The Minister in turn produced a Green Paper, but what is extraordinary is the way she is proceeding with the delegation of powers in an imprecise way and without even having addressed the considerations that arise in her Green Paper. If she was determined to establish regulatory bodies, regulators or whatever else, and in removing matters from the strict accountability of the State then, as required by the Constitution, she should have established where the accountability lay before she piecemeal and willy-nilly appeared to violate some of the submissions in the Green Paper that appear to have been accepted by her.
The Minister may respond by saying she will legislate in time to cover these aspects. That will not work. For example, section 38(1) states that "A person shall not question the validity of a determination or a request of the Commission under this Part otherwise than by way of an application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts". The then Attorney General, Mr. Byrne, addressed this point by stating that the judicial review is only one of the measures by which you could apply accountability. He went on to state correctly that judicial review can only deal with matters of procedure within narrow limits as to how, in fact, a particular decision has been taken.
The Green Paper was a very important contribution to the debate on what should be the mechanism under the Constitution for transferring accountably to new sub-legislative bodies. The view across other jurisdictions, reviewed by writers other than Mr. Byrne, is that it can probably be best and safely done when a clear policy mandate is given to the regulator. It may then be said, in terms of the case referred to by Mr. Byrne, that under Article 15 of the Constitution, the regulator is filling in the details.
Given that the Minister is not doing that, what seems to inform her thinking in this legislation and in other areas is that liberalisation of the market is the primary intention of the legislation. If that is the case where does accountability lie? Whenever there is a difficulty the Minister will wring her hands, as she has so often done in the House, and say the regulator is independent. I call on her to explain in what sense the regulator is independent. Is he independent in filling the detail of a policy function or is he independent in a policy sense?
When this issue was debated in the British House of Commons, those affected by these kinds decisions told its select committee on trade and industry – in this case the evidence of the United Kingdom Electricity Association – that they would prefer if the role of the regulator was more clearly specified. The Minister is doing her classic huff and puff act. She has a Green Paper on regulation, accountably, the role of the regulator, etc. Meanwhile she introduces legislation on aviation, electricity or whatever else.
This Bill flies close to the wind in terms of constitutional acceptability. It is difficult to see how it complies with the terms of Article 15 of the Constitution. Only somebody who was not well informed on what was required by European regulation would confuse the establishment of competition on the one hand with the destruction of State involvement on the other. The Minister's intention is interesting. I do not attribute any malevolence to her but I do attribute considerable deep ignorance. The idea that one can create competition and a liberal competitive involvement by destroying the State or its agencies is deeply ignorant as is that idea that if one knocks those out, everything else will fall into place and the consumer will be better served. Consumers are also citizens and, as such, they have rights under the Constitution. Voters are entitled to be protected by the Constitution. Where is the Minister meeting the norm of accountability? If she says judicial process will meet that end, what has she to say about the comments made by the former Attorney General, who served in a Government of which she was a member, to the effect that judicial review is limited in regard to what it can provide by way of accountability? Perhaps we live in an era where people have very little interest in respecting citizens' rights to accountability. In some jurisdictions, rabid, neo-liberal free marketeers suggest that anything which the state touches is wrong. At least, they have the merit of being up-front. The Minister is proceeding with pieces of legislation in regard to State sectors of activity which have been patiently built up with public investment but is not announcing what principles will guide her. Commissioner Byrne, former Attorney General, in page 14 of his paper states:
Delegation of authority must be done in a detailed and precise manner. The exact remit of any regulator must be clear and obvious to all those who will be affected by their activities. A coherent policy framework, formulated by the Executive and the Legislature, within which the regulator is required to make decisions, must be set out.
Where is that policy framework? Will the Minister outline it in her reply to this debate? This legislation, which is bad in principle and constitutionally frail, is a very poor response to the very fine contribution of the Minister's former Government colleague.