Joe O'Toole (Independent)

The Minister makes valid points with which I do not disagree. I agree there are elements in the primary legislation and they have been brought to my attention. However, they do not meet what I am talking about. I agree completely with the Minister on the question of primary legislation and accept that the commission should be national regulatory authority. That is not my point.

The following is the best analogy I can provide. The Bill transposes into law a European directive and the Minister has a significant input in this process. If my amendment is clumsily worded and gives the impression that I am seeking to change the authority of the proposed Commission for Communications Regulation to be the national regulatory authority, that is not my intention and I would be willing to change the text. My amendment relates to circumstances in which the commission will act in a manner which the Minister considers goes beyond what is required. As of now, the commission will not act under the direction of the European Union. In introducing the directive the Union has provided that certain requirements be met in respect of competition law and so forth.

The issue is one of democracy. While I acknowledge the two points made by the Minister, I ask him to consider circumstances in which his successor in office will take a completely different perspective from him, while recognising that European directives must be enforced, the commission is the regulatory authority and all competition requirements must be met. In the event that a future Minister takes the view that something goes too far, is too painful or being done too quickly, this not covered in the primary legislation. While I do not seek a veto for the Minister, the circumstance I have described is not appropriate in a democracy. It is a subjugation of political responsibility in the sense that the commission will have authority which previously belonged to a political office. It is also an abrogation of responsibility by the Government.

I am seeking to find middle ground. I do not propose to give the Minister power to take any action which would be the function of primary legislation. I also recognise that the primary legislation gives the Minister certain powers and that the wording of my amendment may not be sufficiently precise. However, provision must be made to allow a Minister to intervene in this process in certain circumstances. I do not mind if this does not include giving a Minister a power of veto. However, it would be a great comfort to know that the view of the Government has been brought to the attention of the commission. If the commission were to choose to disregard ministerial advice, I would not like it, but I would be able to live with it.

This brings me back to the Ministers and Secretaries Act and the question of what precisely are the respective functions of Ministers and officials. If this legislation had been introduced 20 years ago, the matter would have been addressed in the Department rather than by a new commission. There is a good chance, in the light of current views on quangos and so forth, that this position will obtain again at some point in the future. If this matter were addressed internally, I do not believe an assistant secretary would deal with it without first running it past the Minister's desk. The provision is dangerous and runs counter to our function as parliamentarians and public representatives. We are pushing responsibilities down the line to someone else in a manner that undermines the democratic function. I cited the example of what approach would have been taken by an assistant secretary and a Minister in the past. To give a more modern example, if the Minister and I were chief executive and chairman, respectively, of a State body or board, the differences between both functions would be clearly understood. We would know what the Accounting Office would do and what, to use Civil Service language, the political master would do. The chairman speaks for the board and its responsibilities, whereas the chief executive speaks for the function and the executive which performs an implementation role.

For the reasons I have set out, it is not a good idea to remove authority and power from the Minister. It undermines the democratic process. I am not exercised about what wording is used. My concern relates to the principle of what is being done. While I do not disagree with the Minister's argument, I ask him to move towards a position that would accommodate my viewpoint, one that would not require him to micro-manage or undermine European legislation but would allow him to intervene in exceptional circumstances.