China has responded in robust terms to Government moves to give Ministers the power to ban Huawei equipment in Ireland. By any standards these are strong measures that could eliminate certain companies from the Irish market without any need to publicly document the reasons once national security is cited. The lack of transparency is as glaring as the tension stirred with China, although it is hardly a beacon of transparency.
In unusually blunt criticism of draft laws under debate in the Dáil, China’s embassy in Dublin questioned the motivation for moves against “high-risk vendors”. The very idea was a “groundless” invention, it claimed, arguing the concept originated outside Ireland to suppress Chinese companies.
This was a clear reference to sharp disputes between Beijing and Washington over Huawei, which is based in Shenzhen, China. The row intensified at the weekend when the US banned new Huawei equipment for national security reasons and four other Chinese groups: ZTE; surveillance equipment maker Dahua Technology; video surveillance company Hangzhou Hikvision Digital Technology; and telecoms operator Hytera Communications.
Although the Government insists the power to ban certain groups is neither company-specific nor country-specific, Huawei is perceived to be the target. That view is widely held in business circles, particularly among telecoms groups using Huawei kit who face the prospect of being forced to remove and replace it.
“I would have thought that there would be substantial issues around compensation arising,” said Independent TD Michael McNamara, a critic of the proposed ban.
China has made the same conclusion about the focus on Huawei, adding weight to its argument by saying “remarkable progress” in economic relations has helped to create thousands of Irish jobs. “We do hope the amendments to the Communications Regulation Bill will be fact-based, fair and non-discriminatory, and the good momentum of trade and investment cooperation between China and Ireland will not be undermined.”
That is unlikely to deter Irish Ministers as the force of American diplomatic influence in Dublin far outweighing that of China.
The Government casts the power to ban company technology within the framework of the “EU 5G Security Toolbox”, saying such measures are essential for prosperity and national security. But there is no doubt the US is the driving force behind the western clampdown on Huawei.
The problem from an Irish perspective that there is no basis for interrogating claims that any company’s technology compromises national security.
The Minister for Communications will have powers to prohibit components made or supplied by high-risk vendors, restrict their use or require companies to remove, disable or modify them. There will be no requirement to explain why in cases “where the Minister considers that specifying the reasons” would be contrary to national security or public order.
Ministers will also be empowered to give information under oath at a High Court hearing in which the appellant is not represented, on the basis that such information “shall not” be provided to the other side. The Minister can ask that only a “summary” is provided to banned companies, greatly limiting scope for any appeal.
These are novel manoeuvres that call into question the ability of a company targeted by ministerial intervention to challenge it in the courts.
“The ability to challenge your accuser is a cornerstone of Irish law, and up to now has been considered to be a right protected by the Constitution,” said Mr McNamara, adding that he has been critical of China’s human rights record. “I have no views whatsoever on Huawei. I’m not a tech expert, but for me this is about the principle of the erosion of access and recourse to justice.”