Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 37:

In page 48, line 24, to delete “, as far as practicable,”.

With regard to amendment No. 37, I am concerned about the language “as far as practicable” in this context. These are important amendments. If Members will bear with me for a moment, I have some detailed notes on them. Fundamentally, these address the issue that was highlighted on the danger of a lack of clarity in the Bill around precedence and the dynamics between Coimisiún na Meán and the CCPC. Currently, the way it is framed seems to set out effectively that we may end up with decisions being made by each entity that do not match up with each other. This is a potentially significant problem regarding the effectiveness of the Bill, the clarity of the law and the precedence. Currently, the Bill states, "as far as practicable, consistency between decisions made” between these two entities that are both regulating some of the same areas and same actions. The Bill effectively allows for inconsistency between decisions made by two authorised entities, which is a concern. “As far as practicable” is a get-out clause, in a way. It is a concern because we will end up with maybe not case laws but banks of decisions being made that may be at odds with each other in respect of clarity, effectiveness and even the strength attached to the decisions.That kind of ambiguity is a concern.

Therefore, I tabled an amendment to remove the language “as far as practicable” to try to ensure there would be consistency. The co-operation agreement is the agreement being put in place between the two entities. My simplest amendment would remove the line “as far as practicable” and leave it as a requirement of the co-operation agreement that the agreement would have to find a way to ensure there is consistency between decisions. That would be the simplest way to do it. I do not dictate in that context what mechanism would be put in place but it puts it as a requirement of the co-operation agreement that it would come up with some mechanism that would ensure clarity and clear precedence with regard to these matters.

In amendment No. 38, I set out an approach that could be taken. Again, the simplest way is amendment No. 37. Amendment No. 38 would insert a new paragraph, which states, “setting out rules regarding the precedence of the decisions” and so on. Attempts should be made to reconcile but An Coimisiún na Meán probably has the appropriate precedence in respect of these final decisions in a hierarchy. It would set out the rules regarding the precedence of the decisions of An Coimisiún na Meán over the decisions of the consumer protection commission in the event of a disagreement over decisions made or other steps taken in part of those decisions. That amendment gives a suggested hierarchy.

Amendment No. 39 would insert a new subsection and is another way to come at this. Our amendment proposes:

Where [there are] inconsistencies ... between decisions made or other steps taken by the Commission and Coimisiún na Meán in so far as ... those decisions or steps [relate] to the Digital Services Regulation, the decisions of An Coimisiún na Meán shall be deemed to take precedence.

It is not making any reporting requirement or anything like that of the consumer protection commission to Coimisiún na Meán. This is for when all these due practical steps have been taken to ensure consistency but they have not been successful and an inconsistency has occurred and we need clarity over where the buck stops, ultimately.

Amendment No. 40 requires a report. This pushes a little bit into the future and how we deal with this issue. I am concerned that this might be used as a loophole and we will end up with decisions taken that are at odds with each other and with a danger of one decision being set against another. Amendment No. 40 requires a report related to inconsistencies in decisions between the consumer protection commission and An Coimisiún na Meán. The amendment provides:

The Minister shall, within two years of the passing of the Act and biennially thereafter, conduct a review of the operation of cooperation agreements under section 45, with particular regard to any inconsistencies identified between decisions made or ... steps taken...

It then adds, “Where a significant or repeated inconsistency is identified as part of the review...”.

Where there is a pattern emerging where the same kind of inconsistency is occurring on multiple occasions, either party might request a review of the co-operation agreement. That may be to say, “This is the co-operation agreement. Here is how we have set it and here is how we planned to avoid inconsistences.” However, if inconsistencies are nonetheless occurring, either party would be able to request a review of the co-operation agreement because clearly, whatever mechanisms are in place in that scenario are not working effectively.

These are amendments trying to clarify, untangle and avoid a future problem either through preventative measures within the co-operation agreement, clarity around the matter of precedence or, as a last measure, through a review mechanism that at least allows for, if the problem which I anticipate may emerge does emerge, knowing which steps to take to address it.