A tattoo artist went to her dentist to have a procedure carried out.
She was shocked when she saw instruments lying in a dirty sink and not sterilised to the standard she would follow in her own business. The patient was so concerned she approached the Dental Council seeking an inspection of the premises for hygiene standards.
However, the legislation under which the council operates is almost 40 years old. The council felt the complaint fell between gaps in its armoury and that in law it was powerless to take action.
The Dental Council is just one of a host of regulatory bodies operating in Ireland. Some are almost as old as the State while others are relatively new creations.
Some aim at regulating broad sectors such as telecommunications and energy. They seek to ensure that markets operate smoothly and in the interest of consumers. Some, such as the Health Information and Quality Authority (Hiqa), act as a watchdog with a role to inspect and review health and social care services.
Others oversee particular professions such as medicine, dentistry and law. These, in the main, seek to protect the public. They deal with complaints made by the public and some have specific fitness to practise functions to ensure that practitioners operate to sufficiently high standards. Those who are deemed to fall below such levels can face sanctions.
Regulation in Ireland is big business – almost an industry in itself. In 2023, for instance, Hiqa had a budget of €38.4 million and a staff of 351.
The Government recently gave the go-ahead to ComReg, the regulator for the telecommunications sector, to increase its headcount from just under 160 to 232. It has annual operating costs of about €40 million.
UCD registrar Dr Colin Scott carried out research into the area of regulators and regulation in Ireland in a previous role as professor of EU regulation and governance.
He said an analysis by the Irish State Administrative Database found there were 94 regulators in Ireland.
[ ComReg to be charged with overseeing security of data centres in expansion of its regulatory role ]
An official report in 2007 suggested there were at that time 215 public bodies exercising regulatory functions. But this figure included local authorities and other bodies which did not have regulation as their primary roles.
Following the collapse of the public finances in 2008 a number of regulatory bodies were amalgamated on foot of a review group headed by economist Colm McCarthy.
This report also maintained that in some organisations staffing levels were too high and recommended staff reductions and fewer personnel at senior level.
While the overall number of agencies did fall at the time, in subsequent years new organisations have been established. More are on the way.
A new Gambling Regulatory Authority of Ireland is expected to get up and running shortly while the Department of Health has also been planning regulation of home support services.
Within the regulatory sector, some bodies are funded in whole or in part by a levy on the industry or profession that they oversee.
The chairman of ComReg, Robert Mourik, said over its 25-year history, it had given more than €1 billion back to the exchequer. “So we are a kind of revenue source rather than a drain,” he said.
This funding mainly represented the proceeds from auctions of part of the telecommunications spectrum for use by commercial companies for specific periods.
In other areas, the taxpayer contributes – on occasions as a result of actions way outside the operation of the regulator itself.
Coru, the regulator for health and social care professionals, was intended to be self-financing once all its registers were opened. In 2020 it was estimated that it needed an annual registration fee of €295, but, as part of a public service pay deal, the fee was capped at €100.
This required the State to step in with funding for Coru which received just over €4 million from the Department of Health in 2020, an increase of €900,000 on the period from 2017 to 2019.
While the number of regulators has increased significantly over recent decades, regulation came early to the Irish State.
In 1923, shortly after Independence, a film censor was established to regulate what people could watch in the cinema. Legislation to regulate doctors was enacted in 1927.
For years, professions essentially regulated themselves. It was not until the 2000s that Mary Harney, then minister for health, against strong opposition from doctors, established a majority of lay people on the Medical Council and the Pharmaceutical Society of Ireland.
Outside of the professions, government departments for decades essentially regulated areas under their aegis.
Scott said things changed after Ireland joined the EEC, later the EU.
Even when State monopolies in areas such as energy and telecommunications ended, its commercial companies were still highly active in the market. The State then could not be, in effect, the referee while being a player on the pitch.
The introduction of the independent regulator was essentially mandatory under the influence of the EU.
Scott said the Irish government also established regulatory agencies in areas not required by the EU. Part of this process could, he suggested, be seen as copying developments in other jurisdictions.
The UK established the Financial Services Authority in 1986. In Ireland the Financial Regulator was established in 2003.
Governments also reacted to events. The Food Safety Authority was established in the aftermath of the BSE crisis.
Of course, tension between regulators and the regulated is natural.
Mourik said ComReg was “an economic regulator”.
“We look at the market and about things that the consumer won’t see but are quite important. We look at the telecom market and which operators are, let’s say, dominant. And if you are dominant, we call it if you have significant market power, we can intervene,” he said.
“And in Ireland, the operator with significant market power at the moment is Eir. So we have a more direct role in regulating Eir.”
In a high-profile case taken by ComReg in April, Eir and its parent company, Eircom, pleaded guilty in the Dublin District Court to multiple breaches of the law over its failure to acknowledge customer complaints and provide responses within 10 working days among other issues, in a ruling contested by Eir.
Mourik said in general ComReg had a very good working relationship with the industry.
“Of course, there are things that they don’t like. We don’t always get it right either. But we are a regulator that knows [those they regulate],” he said.
He said the regulator was in continuous contact with the operators it regulates because ComReg “want to know exactly what is going on in the sector in order to regulate”.
“And, it’s not always hunky dory. We sometimes have to make decisions that they don’t like and we have an argy bargy,” he said. “But you can’t regulate by always being nice and doing exactly what they want. That’s not the situation. That’s not how it works.”
Despite the proliferation of agencies, concerns have been raised that legislation setting out their roles and powers is sometimes slow to catch up with advances or developments in the sectors concerned, leaving regulatory gaps.
The registrar of the Dental Council Dr David O’Flynn recounted the story of the tattoo artist as an example of circumstances in which a regulatory body was powerless to respond to a complaint. He said in that case, it had no authority to enter or inspect a dental practice to examine the process in place for sterilising instruments.
O’Flynn pointed to other regulatory gaps.
He said the council had become aware of unregistered dentists providing treatment to patients, including a person with a conviction for sexual assault, a person who repeatedly failed to diagnose a severe infection in a young child which put the child at severe risk of sepsis, and a person who had been erased from registers in two other European countries.
“I have received notifications from international regulators concerning approximately 40 registered dentists who have had sanctions applied in other countries. The Dental Council was unable to act as these dentists were already on the Irish register when sanctioned,” he said.
“This is a crucial point. We can deal with those before they become registered, but after the registration happens, it is not possible.”
Minister of State at the Department of Health Colm Burke told the Dáil it was looking at interim legal measures, although new legislation would come at a later date.
Scott said that while regulators may seem powerful, in reality they generally have no authority to make their own rules. These are based on legislation drawn up by their parent government department while enforcement is usually a matter for the courts.
Some regulators have pressed their parent departments for years to update legislation.
In October 2021, the Dental Council warned the Department of Health that gaps in the legislation posed “a significant risk to public safety”.
In 2021, Hiqa urged the Department of Health to carry out a “comprehensive review of the current legislation pertaining to health and social care services in Ireland” and to look again at legislation introduced in 2007 “to take account of the changing landscape”.
Hiqa said, for example, that the manner in which a designated centre for people with disabilities was defined was “no longer fit for purpose”.
The Government is introducing legislation which addresses many of the issues raised by Hiqa in its 2021 paper seeking regulatory reform.
But what regulatory reforms could be introduced?
Scott said the OECD urged Ireland to develop policies and practices of regulatory reform from the late 1990s and the Law Reform Commission may also put forward recommendations.
It suggested it was worthwhile to consider whether common regulatory enforcement powers should be standardised and codified.
With almost 100 regulatory bodies, a regular question that has been asked is are we over regulated?
“We are not very good at evaluating whether we have too much or too little regulation,” said Scott.
He said that some years ago a “Better Regulation Unit” had been established within the Department of the Taoiseach which had been praised for enhancing both awareness of better regulation policies and the capacity to deliver on them. The unit was later disbanded.
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