Dáil debates

Thursday, 24 November 2022

Communications Regulation Bill 2022: Instruction to Committee

 

4:50 pm

Photo of Ossian SmythOssian Smyth (Dún Laoghaire, Green Party)
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I move:

That, pursuant to Standing Order 233, Standing Order 187 is modified to provide that it be an instruction to the Committee to which the Communications Regulation Bill 2022 may be recommitted in respect of certain amendments that: the Committee has the power to make amendments to the Bill which are outside the existing subject matter of the Bill, in relation to:
i. the Digital Hub Development Agency Act 2003 to amend section 15(1) to reduce the membership of the Agency from fourteen to eight; and

ii. the Digital Hub Development Agency Act 2003 to amend section 17(3) to reduce the quorum for a meeting of the Agency from six to four;
and to change the title of the Bill, and make other consequential amendments required to take account of the change above.

The purpose of the motion is to instruct the Dáil, in Committee, that Standing Order 233(2) is modified to provide that the committee has the power to make amendments to the Communications Regulation Bill 2022 which are outside the existing subject matter of the Bill.

This is required in order that I can introduce Government amendments to the Bill on Report Stage, which I hope will take place before the end of the year. The amendments provide for a reduced membership of the agency, specifically reducing the membership the agency from 14 members to eight members and reducing the number required for a quorum for a meeting of the agency from six members to four members.

The Digital Hub Development Agency, DHDA, Act provides that the agency comprises 14 members, however, Deputies will note there have not been 14 members on the board since January 2009. Currently, there are just eight members on the board of the DHDA and the current size and composition of board, in terms of the range of experience and skills, is appropriate to the requirements of the agency over the next period. In this regard, the policy context for the amendments is the Government's decision of last year to dissolve the DHDA and to transfer its land and property assets to the Land Development Agency, LDA. The process and focus for the agency to prepare for the dissolution will necessarily be different to that required for the agency in the ordinary course of business. The dissolution process will require a period of time and these amendments are designed to allow for continuity of a strong, appropriately constituted and functioning board throughout the dissolution process and to mitigate the risk of the board becoming inquorate during the wind-down and dissolution period.

The amendment to reduce the maximum size of the board will not affect the current members and will ensure the DHDA board is maintained on a scale proportionate to the focus of its activities as it prepares for dissolution and allows it to successfully discharge its statutory functions, pending the enactment of the legislation required for its dissolution. Furthermore, the amendment to reduce the quorum for a meeting of the agency to four is designed to ensure stability and to mitigate the risk of the board becoming inquorate during the period of transition that will see the wind-down of commercial activities and, ultimately, the dissolution of the agency.

Separately, I indicated on Second Stage of the Communications Regulation Bill 2022 that it was my intention to introduce legislative amendments, to provide for the sale of the properties held by the DHDA to the LDA. However, following further consultations at the Office of the Attorney General, it was apparent that there would be significant complexities and challenges to provide for such a sale in legislation at this stage. Consequently, I have decided not to proceed with any property-related amendments and I expect the sale and acquisition of properties will be governed by the framework established by the Land Development Agency Act 2021.

In the meantime, my Department is advancing the development of the legislation required to dissolve the DHDA, and I expect this legislation will be ready for publication next year. I look forward to any contributions on this motion and I will do my best to respond to any specific questions.

5:00 pm

Photo of Ruairi Ó MurchúRuairi Ó Murchú (Louth, Sinn Fein)
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This motion is necessary to deal with specific amendments. A fair amount has been put into the public domain by my colleague, Deputy Ó Snodaigh, in particular, on the digital hub and the fear of lost good, initiatives from a part of Dublin and that will need to be addressed.

Across the board, we all welcome parts of this Bill in dealing with European directives and codes that need to be transposed into law. We all know with telecommunications, we are dealing with something that changes rapidly, almost on a day-by-day basis. We are in a very different world in respect of telecommunications than we were five, ten, 15 years ago, never mind 20 years ago. It is very difficult for legislation, on a European level, never mind on a domestic level, to keep up with that.

One of the major things we need to ensure in the context of commercial operators or those who provide services to citizens is that they are of top quality and are exactly where they need to be. From time to time, this means some of these companies will need to be held to account and the only means of doing that, as we have discovered from dealing with the Commission for Communications Regulation, ComReg, and others, is to provide teeth to ComReg. That relates to the modalities and protocols, which they can use to take action against companies that infringe or do not deliver the required service, particularly in the case of something that is absolutely necessary. This was realised, across the board, in relation to communications and was highlighted during the pandemic, a period when many people were remote working. We knew there were issues with services offered by Eir. The fact is that ComReg did not have the teeth to address these issues. The piece that one does not want to see in operation, but which is sometimes necessary, is the big stick. From a company's perspective, the only thing that counts is money. We welcome all the necessary measures on that.

There is general support across the sector for much of this Bill. There have been a number of changes to what we will be dealing with. People are talking about security and networks. That is another part of the world in which we are in a different set of circumstances compared to previous times and everyone understands the necessity for being able to maintain network security.

Something I am going to put into the mix relates to a number of issues. Obviously, a lead-in time must be provided to companies operating this system and for best practice. There is no point in us not giving them sufficient run-in time, which could take a couple of months, to make sure they are given all the information they need to ensure their systems can do the business and have the necessary processes in order that they are in compliance with this. If that is not the case, we could end up creating a set of circumstances in the short term where people are in breach of rules due to a technicality, and that needs to be looked into.

On networks and security, questions will be raised about some of the wants and needs and what is expected, such as why some vendors can be used and some cannot. There will be a need for a wider conversation on that. An awful lot of operators across Europe that are dealing with networks and communications already limit some of the technology they use in the core, secure and vital part of the communications network. If a determination is made, and much of this power will lie with the Minister, Deputy Eamon Ryan, that the technology of certain companies cannot be used, we will not need to get into the rights and wrongs on that. The Minister at some point will probably have to get into what led to this, what the worries are and where that information is provided.

On another level, if certain technologies cannot be used, we must ensure they can be replaced and sufficient time would be provided. We all know the supply chain issues that have arisen recently. It is vital that this would be considered. In an awful lot of cases, technology is used on the basis that it is probably the best in the market, the most reliable and trustworthy. From a European point of view, that is probably only one company that can deliver some of these alternative technologies. It would be under pressure in relation to two issues, namely, in ensuring its innovation levels are on a par with some alternative technologies and the significant supply chain issues.

Then there is the cost, which also has to be taken into account. I assume there will be an element of sense to this and that, when the legislation is in place, the Minister will not make an absolute determination that everything has to be replaced by next Wednesday but I would like a bit of a conversation and a bit more information as to how the Minister of State foresees those added powers actually being applied.

5:10 pm

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I have to say I have concerns about this motion. They stem as much from the content of the Bill as from the manner in which it has been brought before the House to date. When the Bill was discussed on Committee Stage, certain matters were ruled out of order. The Minister of State is now seeking a motion to instruct the committee so that those matters can be brought back before it. That committee meeting was held on 26 October. The evening before, 25 October, the Minister introduced a number of new amendments which completely alter the purpose and shape of the Bill and which are very novel in Irish law. The fact that they were introduced on 25 October meant, of course, that no member of the committee or Member of this House had any opportunity to consider them or to table amendments on Committee Stage. The amendments the Minister introduced essentially facilitate him in making assessments of what are called "high-risk vendors". That is a very novel approach in Irish law. One of these amendments states "The Minister may assess at any time, and on an ongoing basis, the likelihood of a vendor being subjected to interference by a third country" and, in doing so, shall have regard to the following matters:

(a) whether or not a strong link exists between the vendor and the government of any third country;

(b) the status of the rule of law and the political situation within the third country in question, in particular whether or not there is democratic or legislative oversight, including an independent judiciary, in place, and whether or not data protection or security agreements exist between the European Union and the third country in question

If the Minister has concerns about a lack of judicial oversight, judicial independence or the rule of law in countries of the world, the way to counter such concerns is not to impinge upon those matters at home, which is very much what this Bill does. If the Minister makes a high-risk vendor assessment, he informs the vendor in question of that assessment but can require that this be kept confidential.Vendors cannot reveal that to anybody, not even their own customers who will not know why they are doing this. As one might expect, vendors can appeal the matter to the High Court. However, if the Minister's assessment is based on national security grounds, he can make an application to the High Court for the appellant not to be provided with the information on which the decision is based. The court can decide whether to give the appellant a mere summary or the gist of that information and then go on to determine the case. The case itself will be heard in confidence. It is not that it "may" be heard in confidence. The court has no discretion. The amendments would introduce the proposition, which is extraordinary in Irish law, that the court and the Minister would be in possession of certain information while the appellant would not and would therefore not be in a position to challenge it.

Something a little bit similar to this occurred in a case involving citizenship, A.P. v. The Minister for Justice and Equality. In that case, the Chief Justice, Mr. Justice Clarke, said that:

short of breaching the State's legitimate and proportionate security interests, it is difficult to see how a process can be constructed which might not, in at least some cases, potentially infringe one or other of what might otherwise be considered matters of principle. Either the Court will have to assess legality without having access to information which formed part of the administrative decision making process but which is covered by State security privilege or the Court will have to make a decision on the substantive merits of the case on the basis of evidence or materials which a party was not permitted to access and could not, therefore, challenge. Neither proposition is particularly attractive but one or other solution must be found if State security privilege is to be upheld. Irish law clearly favours the solution which does not permit the Court to have regard to materials not available to the parties.

He then went on to consider the Offences against the State (Amendment) Act 1972 and said, to be consistent with the Constitution, the opinion evidence of a chief superintendent would have to be corroborated. Mr. Justice O'Donnell, who is now the Chief Justice, said "I also agree that there are, to put it at its lowest, serious doubts that it would be permissible to provide that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party." That is an extraordinary proposition.

Amendments were put in this morning but the Bill was also pulled this morning. I am informed that it will not be considered next week or the week after, which means that it will be considered in the run-in to Christmas with, if past experience is anything to go by, a whole load of other legislation, which will be rammed through without debate or with a guillotine. It is quite important that this be debated fully given how novel it is. I believe it needs to be considered by a fuller Dáil and, on that basis, I call for a quorum of the Dáil.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Question put and agreed to.

5:20 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I propose to suspend the Dáil for five minutes while we prepare for the Topical Issue debate. Is that agreed? Agreed.

Cuireadh an Dáil ar fionraí ar 6.02 p.m. agus cuireadh tús leis arís ar 6.06 p.m.

Sitting suspended at 6.02 p.m and resumed at 6.06 p.m.