Control of Water - This video is an illustration of the manoeuvring of big business to use their financial and political might in capturing the natural resource of water for monetary gain. We are now a target
Published on Mar 29, 2015
Control of Water - This video is an illustration of the manoeuvring of big business to use their financial and political might in capturing the natural resource of water for monetary gain. We are now a target
Buncrana Together has been contacted recently by a number of residents in the area about t Irish Water's latest ploy of forcing both private and council landlords to hand over information about tenants. Residents are worried that their details will be given to a third party like Irish Water. They question the legality of this in relation to Irish Data Protection laws and more importantly EU Data Protecion laws.
Lobbytag.eu, a project to track data protection legislation in the European Parliament, have stated " member states proposals are heavily skewed towards less, not more, privacy. And the three countries doing the most to ensure this in the case are Britain, Ireland and Germany.
The Irish Time of March 11, 2015 state that " EU partners still praise Ireland’s role in advancing the data protection brief during its 2013 presidency. But others remain uneasy, seeing Ireland has having a pro-business, pragmatic approach to privacy"
Private Tenants
Private tenants in the area who are registed with PTRB have been told by landlords that Irish Water will bill them if their tenants do not register and landlords are being told to hand over tenants details to avoid this.
Irish Water
Irish Water state according to this article Independent.ie March 30 2015 "We've been through this with all local authorities, and with the Data Protection Commission in terms of the legal standing to ensure it is appropriate for us to ask for it." The move was allowed under Section 26 of the 2013 Water Services Act, which obliges a "relevant person" - which includes local authorities - to provide information to the company." In the same article the Office of Data Protection Commissioner has said that it considered Irish Water's proposals to obtain tenants names only from local authorities were "consistent with its statutory obligation to identify tenants in properties". Unfortunately, the Indepentent article seems to base a lot of it's information on Irish Water sources. It did not state the Data Protection Commissioner's view on private landlords.
Buncrana Together contacted the Data Commissioner's recently about this question and they replied " The Office of the Data Protection Commissioner would consider that Irish Water proposals to obtain tenant names only from local authorities and private landlords for the premises where no customer has registered are consistent with its statutory obligation to identify tenants in properties. The legislation that covers this is the Water Services Acts." They also said " Any further queries in relation to those Acts should be addressed to Irish Water or the Department of the Environment" Why should the Data Protection Commissioner advise us to address queries about legislation to Irish Water?
Good sources of information for landlords and tenants are the Private Residential Tenancies Board and FairSociety. The Private Residential Tenancies Board website states "Owners are legally presumed under the Water Services (No.2) Act 2013 to be the customer, unless proven otherwise. Such proof can be provided by (a) a tenant registering as customer at the premises or (b) the landlord providing the name of the tenant and date of commencement of tenancy."
Both the Irish Water Services Act of 2007 (brought in by FF) and the Irish Water Services Act 2013 ( brought in by FG/Lab) are extremely draconian laws. Laws that are or should be well known to all TDs and local councillors in the country. The acts do cite numerous clauses and penalties in relation to supplying information about property to the water authority. However, no matter how encompassing or harsh these acts are there still is a doubt or legal question whether they will hold against a persons rights to privacy as stated in Irish and EU data protection legislation .
Fairsociety in their web www.fairsociety.ie say "Under current legislation landlords are not obliged to divulge the names and addresses of tenants to Irish Water Ltd and even if Minister Alan Kelly introduces legislation to change that there will be huge legal implications regarding privacy laws both here and in the EU so no landlord should rush to hand over tenant details until such legislation is tested in the courts".
Elizabeth Arnett, Irish Water Communications, AlanKelly Minister for Environment, Community and Local Government & John Tierney Managing Director Irish Water
More Clarity Needed
In order to get more clarity Buncrana Together has emailed PRTB asking for clarity on the legal question of landlords passing on tenant's information to a third party. We have also written to europe.eu. It probably will take weeks to get answers back but when we do we will publish them.
It seems there are mixed messages which has left everyone confused. On the one hand we have the Data Protection Office saying that under the law it's ok 'only for local authorities' to pass over information to a third party while Irish Water would have you believe they have a legal right under the Water Services Act to force both council and private landlord to do so. Then you have Fairsociety saying in no uncertain terms " It is unlawful for a landlord to divulge private information about tenants to anyone (except where the law provides, like with a warrant) without the tenant’s consent. This includes the tenant’s name and address". So it seems to be a question of whether the Water Services Acts supercede prior Irish legislation such as Data Protection Acts 1988 and 2003 and whether they are in contention with
EU Data Protection Directive 95/46/EC. This is a lengthy process but one that is worthwhile.
Interim Advice from Buncrana Together
Read the above PRTB and Fairsociety's web pages. There is some very good reading for both tenants and landlords. Buncrana Against Irish Water would advise anyone objecting to water charges not to have any contact with Irish Water. If you are sent out an application pack or bill do not open it, return it to sender with a label you can get from our site at www.buncranatogether.com in 'Essential Downloads'. Do not write on the envelope (see the article on our site. Boycott The Bills).
There are a lot of legal issues with regard private data and it will come out in the wash but there is no need to get into arguments with landlords over the issue. If Irish Water phone you do not interact with them other than saying that you are too busy. Don't panic, in the end of the day if Irish Water has your name and address there's not much they can do, so far anyway, if you have no contract with them. You have a right to refuse a contract and you have a right to not pay. See the leaflet on our site 'Boycott the Water Bills'.
Catherine Murphy TD
You may recall how Catherine Murphy, Independent TD for North Kildare, has been asking questions of Finance Minister Michael Noonan in the Dáil about IBRC’s sale of Siteserv to Denis O’Brien.
Mr O’Brien bought it for €45.4million cash while Siteserv owed Anglo €150million.
The sale involved IBRC writing off €100million of Siteserv’s debt with €5million distributed to Siteserv’s shareholders.
After the sale of Siteserv to Mr O’Brien, GMC Sierra won a State contract to install water meters. GMC Sierra is comprised of GMC Utilities Group and Sierra Support Services Group. Sierra is a subsidiary of Siteserv.
It was previously reported that Australian hedge fund Anchorage Capital offered a higher price – €52million – but that ‘elements of the offer were considered less attractive then the O’Brien bid’.
And that French company Altrad claimed it was denied the opportunity to make an offer for Siteserv – saying it had been prepared to offer €60million – but that it was ‘effectively denied the opportunity because its representative was told the Irish group was not for sale’.
Denis O'Brien
Last December, Ms Murphy raised her concerns about GMC Sierra’s water meter contract, in the Dáil, asking how could GMC Sierra be awarded a contract [by former Environment Minister Phil Hogan] for water meters even though it didn’t legally come into existence until July 15, 2013, 15 days after the closing date for bids.
She also asked Finance Minister Michael Noonan if he was satisfied that the IBRC acted in the best interests of the State when it sold Siteserv to Denis O’Brien/Millington.
In his reply, Mr Noonan stated that the IBRC acted “at an arm’s length to the State” and that “commercial decisions in relation to IBRC were solely a decision for the bank.”
In another question, Ms Murphy asked Minister Noonan to furnish her with the so-called Relationship Framework and Operational Protocol which oversaw the interactions between the Finance Minister and the former management and board [headed by Alan Dukes, former Fine Gael leader] of IBRC before it was liquidated.
Ms Murphy asked Mr Noonan to indicate to her the precise financial thresholds under the framework which would have “triggered mandatory consultation in advance of a transaction and/or disposal”.
In a reply on February 26 last, Minister Noonan confirmed to Ms Murphy that the bank would consult with the minister in relation to “any transaction which resulted in an adverse impact on total regulatory capital of the bank of greater than €100million would require interaction between the minister and the IBRC”.
Further to this, Ms Murphy then asked, if that was the protocol, why wasn’t Minister Noonan involved in discussions with IBRC, regarding the Siteserv sale.
Michael Noonan FG Minister For Finance
In a reply, Minister Noonan stated that the protocol only came into effect on March 29, 2012 – 14 days after the Siteserv sale was completed.
Yesterday, Ms Murphy received three more answers from Minister Noonan in relation to records kept of meetings between Minister Noonan and IBRC in respect of the Siteserv sale; if IBRC extended a €10million credit facility to Siteserv between 2010 and its sale in 2012; and about IBRC’s reported rejection of a higher offer for Siteserv.
In his responses, Minister Noonan said the file notes, minutes and other records regarding his meetings with IBRC are currently the subject of Freedom of Information requests and will be released in due course.
As for the €10million credit facility, he said it wouldn’t have been typical for decisions around credit facilities to be disclosed or discussed with Department of Finance officials.
And, as for the higher offer for Siteserv, he said a company which made a higher bid made representations to the Department of Finance, prompting officials from the department to meet with IBRC. At this point, IBRC chairman – and former Fine Gael leader – Alan Dukes reassured the Department of Finance officials that the transaction was the best result for the State.
Minister Noonan also said minutes and records pertaining to these meetings are subject to Freedom of Information requests and will be made available upon their release.
However, here is a more detailed account of Ms Murphy’s questions and answers…
In her first question, Ms Murphy asked if records were kept of any meetings Minister Noonan or his officials held with IBRC in respect of the Siteserv sale; what questions he raised in respect of payments to the directors of Siteserv, in light of the debt that was written off; what questions he raised in respect of the number of tenders considered; why Millington’s bid was more deemed to be more advantageous to the State and the questions he raised in respect of this who were involved in the tender process.
In response, Minister Noonan said:
“As way of background on the transaction referred to in the question, following a meeting between officials from my Department and senior management of IBRC held on 31 May 2012 it was agreed that my Department would review this transaction to better understand the decisions taken by IBRC. This review took place, by way of a meeting between officials from my Department and senior management of IBRC, on 11 June 2012. Following this review, a further meeting was held on 25 July 2012, which I attended along with officials from my Department and senior management from IBRC. At this meeting, the transaction referred to in the question was discussed further, along with a number of other topics. A further meeting between the former Secretary General of the Department of Finance, John Moran, and the then CEO of IBRC took place in August 2012 at which this matter was further discussed.”
“The file notes, minutes and other records regarding these meetings are currently the subject of Freedom of Information requests and will be released in due course as part of these Freedom of Information requests should officials in my Department consider their full release to be appropriate. The Deciding Officer will make the materials released under these Freedom of Information requests available to you upon their release.”
Alan Dukes Chairman IBRC 2012
“Until those decisions are made by the Deciding Officer, I can confirm that at the meeting which I attended on 25 July 2012, it was put to senior management of IBRC that officials in my Department had concerns with a number of decisions taken by IBRC in relation to the sale of the company referred to in the question including the decision to allow the sale process to be led by advisors of the company referred to in the question, the decision to exclude trade buyers, the timing of exclusivity and the payment to shareholders. Senior management of IBRC confirmed to me at this meeting that the transaction involving the company referred to in the question was thoroughly assessed by the Board of IBRC prior to them
approving it and that the transaction was managed in the
best manner possible to achieve the best result for the State.”
Secondly, Ms Murphy asked Minister Noonan if IBRC extended a €10million credit facility to Siteserv between 2010 and its sale in 2012; if he’d confirm that all due diligence procedures were followed in advance of the forwarding of this line of credit; and if the €10 million or outstanding portion thereof was specifically recovered through the sale of Siteserv or if the money was written down entirely.
In response, Minister Noonan said:
“In relation to the Deputy’s query on a €10 million credit facility extended to the company referred to in the question between 2010 and the sale of the company in 2012, I am advised that it would not have been typical for decisions around credit facilities to be disclosed or discussed with Department of Finance officials unless required under the Relationship Framework which governed interactions between the Bank and the Department of Finance as these activities typically would have been within the ordinary course of business for the Bank.”
“Officials in my Department have also contacted the Special Liquidators but they are unable to comment on individual cases as the information requested is confidential and it would not be appropriate for them to release such information. This being the case, I am unable to comment further on this matter.”
A.M.R. (Mike) Aynsley Group Chief Executive 23 August 2012
Finally, Ms Murphy asked Minister Noonan, if he’d confirm the media reports that IBRC had turned down a higher offer for Siteserv because one element of that proposal included a mandatory eight-week due diligence exercise.
She also asked if Minister Noonan was aware that if IBRC had chosen this reported bid, the new framework agreement would have been in place once the said eight-week period had expired. She then asked if he felt the sale of Siteserv was rushed and, if so, why.
In his response, Minister Noonan said:
“As part of parliamentary question 97 which was answered on 12 March 2015, the Deputy is aware of the process which was undertaken to introduce a revised Relationship Framework for IBRC and the reasons behind this.”
“In relation to the sale of the company referred to in the question, it was after representations made by an unsuccessful bidder in the process and subsequent meetings between that party and officials in my Department that my officials met with IBRC and undertook a review of this transaction. Following this review, my officials were made aware that the transaction involving the sale of the company referred to in the question was run by the company referred to in the question along with its advisors. This review raised concerns with the quality of some of the decisions taken in respect of this transaction, including, among others, that a higher bid for the company referred to in the question was received after entering into an exclusivity agreement with the ultimate winning bidder.”
“In light of concerns stemming from the review of the transaction by officials in my Department, I subsequently met with IBRC’s Chairman [Alan Dukes] and CEO to discuss this transaction. The Chairman and CEO confirmed to me that the transaction process and its terms had been thoroughly assessed by the IBRC Board and that the transaction was managed in the best manner possible to achieve the best result for the State.”
“The file notes, minutes and other records regarding the review of this transaction by my officials are currently the subject of Freedom of Information requests and will be released in due course as part of these Freedom of Information requests should the Deciding Officer consider their full release to be appropriate. The Deciding Officer will make the materials released under these Freedom of Information requests available to you upon their release.”
The Best Deal For The State, Bodger, Broadsheet.ie March 27, 2015
Links