Barry Ward (Fine Gael) | Oireachtas source

I have to agree with Senator Boyhan. I am disappointed. There was previously a very clear indication from the Government that it was in favour of this legislation. In fact, I am aware of correspondence between the Minister for Public Expenditure and Reform, Deputy Michael McGrath, and the Minister of State at the Department of Justice, Deputy James Browne, which was put into the public domain, that the former wanted exactly this kind of legislation to be put in place. As it happens, it crossed with this Bill, which was published a few days later having already been with the Bills Office.

What is in the Bill is a proportionate and reasonable attempt to do exactly what the Minister, Deputy Michael McGrath, has said he wants to do. On the last occasion, we were told there were problems, which I accept, with drafting the definition of a betting offer - that now appears to have exited the concerns of the Department - and problems relating to legitimate expectation. The latter no longer exist because the Minister of State should know that in bringing forth legislation, legitimate expectation concerns cannot arise. This is something that has been done in the UK, for example. No issue arose in respect of legitimate expectation at a time when the UK was a member of the European Union. Exactly this kind of restriction was placed on gambling offerings in the UK and no issue arose from that.

We now have a situation where we are told we need to wait - I think this is what the Minister of State is saying - for the outcome of the Indecon report. That is news to us, given this Bill was published in April last year and it appears the Indecon report was only commissioned around Easter this year. Indecon may have done its surveys, and that is great, but we do not need to hear from Indecon to decide whether there is a public policy basis on which we should bring forward this legislation. That is something about which the Court of Justice of the European Union, CJEU, has been quite clear in the Stoss case. It has stated we do not need research to demonstrate X, Y and Z in public policy is necessary. In fact, the European courts have been very clear that gambling, in particular, is an area in which member states must be given wide purvey to reflect their own social mores or social objectives in how they regulate it.

This is why I also have a difficulty with this idea we are now talking about, namely, whether the Bill is compliant with EU law. It goes without saying legislation passed by these Houses must be in compliance with European law. I presume the Minister of State is referring to elements of the Treaty on the Functioning of the European Union, specifically Articles 49 and 56. I do not believe this legislation is abhorrent to those articles. In fact, if we look at the case of Digibet and Albers, for example, the CJEU has referenced the overriding reasons of public policy that is in the public interest, which can satisfy the justification for a state to bring in legislation like this. In that case, the court referenced consumer protection, combating fraud and crime, and preventing incitement to squander money on gambling. That is what that case was about. The CJEU has been very clear it is supportive of the rights of individual member states to bring forward legislation in exactly this area.

I do not accept there is legitimate expectation on the part of any commercial gambling company, that there is a conflict with European law or that we need to wait for an Indecon report. I also do not accept we have to wait for the view of the gambling regulatory authority for two reasons. First, we do not know when that authority will be up and running. That legislation has not even been published. I am a member of the Joint Committee on Justice that undertook the pre-legislative scrutiny of that Bill, which is a justice Bill quite separate from the regulation already in place regarding the national lottery. That Bill, or at least what we know of it, did not reference bringing the national lottery under the auspices of a gambling regulator.

It has always been the case in this country that the national lottery has been separately and distinctly regulated because it is a separate and distinct offering compared with what bookmakers and commercial gambling operations offer. They are unregulated. I welcome their regulation and look forward to that legislation but they are a separate issue from the national lottery, which is why it comes under the auspices of the Department of Public Expenditure and Reform and gambling comes under the auspices of the Department of Justice. They are not even managed by the same Departments. That is an absolute red herring when it comes to any opposition to this Bill.

I am most disappointed by the fact that I understood there was a previous commitment from the Government to bring forward amendments to fix the problems it saw with this Bill. I concede there are problems but they are fixable and could have been fixed simply by amendment. Despite communications from Senators to the Department warning it that this stage was coming, and despite the fact we have already had a day on which we had 40 minutes' discussion of this Bill on Committee Stage during which that was then the issue, no amendment has been brought forward. I do not understand the sudden cooling from the Department of Public Expenditure and Reform, when we have a stated ambition on behalf of its Minister to bring this kind of legislation through. I do not understand why we are not progressing this today.

As far as I am concerned, we will finish Committee Stage today, whether the Minister of State has reservations or not, because that is the job of this House and that is what will happen.