Amendment No. 1 has been ruled out of order.
Local Government (Toll Roads) Bill, 1978: Report Stage.
(Cavan-Monaghan): Is it in order to ask why it has been ruled out of order?
The Leas-Cheann Comhairle does not make these decisions. The Deputy was informed by letter of the decision. It involved new matter which was effectively not before the Committee on the Bill.
(Cavan-Monaghan): I accept that.
Amendments Nos. 2 and 3 are related and may be taken together.
I move amendment No. 2:
In page 3, between lines 42 and 43, to insert:
"(3) In making a toll scheme, a road authority shall give special consideration to the question of exempting from tolls under the scheme pedestrians, pedal cycles, invalid carriages and vehicles specially adapted for use by physically handicapped persons.".
During the Committee Stage debate on the Bill I said that, while I intend to give full discretion to the road authorities to decide who should be liable for tolls, I did not think it likely that the authority would impose tolls on pedestrians and cyclists and I felt sure that road authorities would wish to give special consideration to the question of exempting handicapped persons driving invalid carriages or specially adapted cars. I also mentioned the special consideration which for many years has been afforded to vehicles used by handicapped persons under the motor tax code and parking by-laws. On further consideration of the matter and to put beyond doubt my desire that handicapped persons would be taken into account I propose that this new subsection be inserted.
Consistently with the underlying principles of the Bill, the elected members of the road authorities will decide whether toll charges will apply to all or any users of a toll facility. This new subsection simply requires that they give special consideration to the question of exempting the category of road users referred to. In making a toll scheme the road authority must give special consideration to exempting from tolls, pedestrians, pedal cyclists, invalid carriages and vehicles especially adapted for use by physically handicapped persons.
(Cavan-Monaghan): The Bill as originally drafted left it wide open to the local authority in preparing a road toll scheme to impose tolls on pedestrians, pedal cyclists, invalids and physically handicapped people using special carriages. I did my best on Committee Stage to have these categories specifically excluded from tolls. I was not successful, as the Minister resisted my efforts to have the Bill amended to make it impossible for road authorities to subject these people to tolls. It would be a disgrace to collect tolls from these people. Having done my best on Committee Stage to exclude these people from the Bill and having failed, I put down amendment No. 3 on Report Stage. I concede that amendment No. 2 in the name of the Minister fully meets my amendment No. 3 and is somewhat stronger than my amendment. “Special consideration” is stronger than “due consideration” and for that reason I am grateful to the Minister for his amendment. I accept it as meeting my amendment, but I sincerely trust that no road authority will ever draft a toll scheme which proposes to subject invalids, pedestrians and cyclists to tolls and that the Minister will refuse to sanction such a proposal if it is ever submitted. As far as I understand it, there is no provision to enable the Minister to amend such a scheme: he must either approve of it or reject it.
I hope that a scheme that contains proposals for collecting tolls from invalids, pedestrians and cyclists would be rejected by the Minister. While I am sorry that the Minister did not see fit to meet me on Committee Stage or even have second thoughts on Report Stage and meet me fully there, I am glad that he has come some of the way to at least put the road authority on notice that he expects them to give special consideration to these people.
I should like to apologise to the House for my absence as I was attending a sub-committee meeting of the EEC Secondary Legislation Committee. May I assume that amendment No. 1 has been taken?
It was ruled out of order.
I should like the Minister to give a clear indication as to what precisely is meant by the words "special consideration". It seems to me that on the one hand the Minister is accepting the spirit of Deputy Fitzpatrick's amendment and on the other attempting to stave off the day when a decision will have to be made. If you want to give exemption to the categories of people who, for whatever reason—and the criteria are set out in both amendments—are outside the economic market so to speak, and therefore should not be deemed to be obliged to pay a toll, surely it can be done in the legislative logic of Deputy Fitzpatrick's amendment rather than in the ambiguous and ambivalent legislative language of the Minister's amendment.
There is not all that much of a gap between the two amendments in essence. Perhaps the Minister could tell us what his Department's view is so that any local authority or body operating under the aegis of a local authority making a toll scheme will be in no doubt from the passing of this Bill as to what "special consideration" means. Perhaps the Minister feels unable to meet Deputy Fitzpatrick 100 per cent in this regard for a variety of reasons but the object should now surely be for us to make it quite clear as legislators what our intentions are so that any subsequent Minister will have it clearly indicated in advance, and can refer to the debate and to the Ministerial explanation at the time of the Report Stage of this legislation, that the intention of the House was clear that special "consideration" means such and such.
I have already explained the reasons for amendment No. 2. The objection to Deputy Fitzpatrick's amendment is that the exact wording would not be acceptable. The inclusion of the final clause of that amendment, that the road authority shall satisfy the Minister that they have considered the needs of the handicapped, might be taken as implying that they need not satisfy the Minister on other elements of the toll scheme. The Deputy is not correct in assuming that the Minister can only approve or reject a toll scheme. Section 3 (4) (c) enables the Minister to approve a scheme with or without modification. The Minister can modify a scheme when it comes to him for approval.
As regards Deputy Quinn's queries, it is now proposed to incorporate in the Bill a very important subsection requiring a road authority to give special consideration to the question of exempting from tolls under the scheme, pedestrians, pedal cyclists, invalid carriages and vehicles specially adapted for use by physically andicapped persons. I do not believe that there is any road authority which would not take cognisance of this very important subsection and I have no doubt that if such an exclusion did occur the Minister would in all likelihood modify the scheme after a public inquiry.
Amendment agreed to.
Amendment No. 3 not moved.
(Cavan-Monaghan): I move amendment No. 4:
In page 6, line 50, to delete "may" and substitute "shall".
During the Committee debate I expressed great concern that an agreement with a private individual regarding a toll scheme should contain a provision for the termination of tolls when the contractor had been adequately remunerated for his investment. We do not want a situation in which a person enters into an agreement with a road authority to construct a road or bridge or improve a road or do some other road work in exchange for a toll which he will be permitted to collect from users of the bridge or road and that that toll should continue indefinitely. If we are going to revert to the old system of doing roads by contract and going to enter into toll agreements with private individuals, corporations or companies, we should ensure that there is provision in the agreement for its termination. The reasonable time to terminate it would be when the contractor—for want of a better name —had been adequately remunerated for his investment.
As the Bill stands there is no obligation on a road authority or on the Minister to see that the toll agreement contains such machinery or clauses for its own termination. The object of the amendment is to make sure that the agreement contains such a clause because section 9 of the Bill, which deals with agreements between road authorities and other persons in relation to the financing, construction and operation of toll roads, reads in subsection (2):
(2) Without prejudice to the generality of subsection (1) of this section, an agreement under this section may—
(a) provide for the application of the proceeds of tolls, systems of accounting for tolls collected and the methods and times of payment of proceeds of tolls to the persons to whom they are to be paid under the terms of the agreement,
(b) provide for its duration and for its termination or suspension and for matters connected with or incidental or ancillary to or consequent upon the expiration of the agreement or such termination or suspension, and
(c) provide for the giving of such security as may be specified therein to the road authority.
I am concerned to ensure that subsection (2) (b) is complied with. As the subsection stands an agreement with a contractor may contain a clause for termination. I want to change the word "may" to the word "shall". By doing so I will be ensuring that the agreement will contain a clause for the termination of the agreement. That is reasonable.
I am satisfied that the tolls will be substantial. Experience elsewhere has shown that they will be substantial. I am anxious to ensure that the agreement will contain machinery for its own termination and that a road authority will be obliged to direct its mind to that when it is entering into such an agreement. That is not an unreasonable request to make or an unreasonable provision to insert in the Bill. It is no answer to say that a road authority will be concerned to get the best deal possible and to see that the toll agreement with a contractor contains such a clause. Corporations, companies or individuals who will be involved in the construction of toll roads will be hard-headed businessmen concerned to make as much profit as possible out of these transactions. There is a danger that a road authority in its anxiety to get a road or bridge constructed when finance for such work from rates or the Department is scarce—we are all aware that such money is getting scarcer and that the Customs House has a tight grip on the availability of such money—would be bullied into entering into an agreement that in the long run would not be to its own advantage or to the advantage of the general public. A contractor might tell such an authority that by insisting on that sort of thing he would not have any dealing with that authority. I am anxious to strengthen the hands of local authorities by inserting in the agreement with the person who will construct and operate toll roads must contain the safeguard that the agreement may be terminated on reasonable terms.
In confining my remarks specifically to the amendment I am in a position to comment directly on the only specific proposal that has surfaced here in relation to a toll scheme because it has emerged from within the confines of the local authority of which I was once a member and of which Deputy Moore is still a member. It is fair to say that the concern of the public at large, and the specific public organisations who have contacted me in relation to this matter, focuses entirely on the issue that the amendment before the House concentrates upon. Irrespective of whether the groups see a benefit or not in the specific bridge proposal to which I referred, they are all concerned with the possibility that an individual or groups of individuals can possibly profit ad infinitum from the traffic congestion of a certain district or area. I support Deputy Fitzpatrick who has urged the Minister to accept the amendment. This will not cost anything. Any Minister worth his salt will look for such a clause in the toll scheme that will be presented to him or her for approval.
As the Minister has indicated, he has a right to make a modification. I believe any Minister would insert such a modification in a toll scheme. Whether he would decide to do so or not I have no doubt that he would be given such advice from his officials. It is clear that Dublin Corporation will be the first authority to operate this legislation. If the Minister is sincere about attempting to attract private capital into the realm of road construction and expanding the national network, and it he wants to get local authority support for such an objective, he would strengthen the hand of local authority representatives if he made such a clause a requirement of the law as distinct from a voluntary one. I cannot stress this too strongly because the view of the people I have spoken to is that there is an argument for and against the specific toll bridge in terms of the relieving of traffic congestion. Deputy Moore, who is more up to date on this position than I, may wish to speak on this matter later. But the clarity of that argument is obscured by the perception of how long the toll will remain in operation, how long the benefit, in terms of the relief of traffic congestion, would be translated into net profit after the capital and interest have been repaid to its promoters.
I simply cannot understand for the life of me why in an enabling Bill, and this is nothing more or less, the Minister and the Government cannot avail of the opportunity to make it quite clear to the public at large that something always perceived to be the free and democratic right of anybody—the right to travel on the open highway, now running the risk of the prospect of being a chargeable right—will be chargeable within very clearly defined parameters, one of which is that when the total cost, including capital, interest and net profit are discharged, that charge will disappear and will be clearly terminated. That is the very essence of Deputy Fitzpatrick's amendment. In fairness to the people who drafted this Bill, I should say it is the essence and spirit of these three clauses. What is at issue here quite simply is to give that aspiration teeth and precision.
In what has been a non-controversial debate between the three parties in this House this afternoon I would urge strongly that the Minister accept this amendment. At this stage we are talking of one proposal only, one which has provoked considerable response, one which is coloured largely by the questions centred around the duration of the toll and the principle involved in not so much allowing somebody to step in and supplement the scarce capital funds of the Customs House but rather permitting somebody to come in who, having invested capital, will reap its benefits ad infinitum. That lies at the root of many people's reservation—not the location of that particular bridge, that particular time but the principle of a toll bridge and toll road.
I do not propose to accept this amendment. I am advised that "may" is the more suitable word for the purpose of the Bill. While the word "may" itself does not impose a specific obligation the fact that three specific provisions relating to the application of toll proceeds, duration of an agreement and the giving of security by the private party to an agreement are included in section 9 (2) clearly indicates that those types of clauses should be considered in the preparation of any agreement. It is open to the Minister, where he considers it desirable, to advise a local authority that he will expect certain clauses to be included in any agreement submitted for his approval. Finally he can, if he considers it necessary, insist on the inclusion of a clause, such as a duration clause, before giving his approval to a toll scheme. If rigid duration clauses were required to be incorporated in agreements under this section this could deter private enterprise from undertaking or participating in toll projects. I believe that the flexible word "may" is the correct one to use in the circumstances especially as the necessity for Ministerial approval provides an additional safeguard.
A final point which strengthens the argument against the Deputy's amendment is that the substitution of the word "shall" for the word "may" might be unduly restrict, if not completely rule out, the possibility of cross-subsidisation of toll projects in cases where road authorities might consider such a course reasonable and/or desirable.
(Cavan-Monaghan): I simply cannot follow the logic of the Minister of State's argument. Indeed I think the Minister himself made the same argument when he was in the House, if my memory serves me correctly, and seemed to insist that “may” meant the same as “shall”. Of course “may” means that the agreement may contain provisions for its termination, or duration or it may not. That is ordinary English.
When we are dealing with people who have accumulated or who can get enough capital to spend a million or perhaps a few million of pounds on a road or bridge, then we are dealing with hard-headed business people who will avail of all the arguments at their disposal and drive home the hardest possible bargain they can. If they have a willing road authority anxious to get a road or bridge constructed which they cannot construct out of their own funds and for which the Minister of the day will not make funds available, they may be stampeded into entering into an agreement without any clause for its termination. If the Minister of the day has refused to put the road authority in funds to carry out the work they want to carry out, he will be in a fairly weak position to refuse to sanction an agreement by which they propose to get the work done without money from the Exchequer; he will be in a very weak position indeed. It is in that type of situation that the road authority and the Minister should be protected from themselves——
Absolutely.
(Cavan-Monaghan):——and that the taxpayer, ratepayer and the road authority should be protected from both of them and from the contractor. That is what I am putting forward here. Nobody thinks for one moment that a person who is going to spend millions of pounds on a venture such as this is going to enter into a foolish agreement. Of course, the agreement entered into will have to be reasonable from his point of view, but we do not want him to get on to a good thing. Nobody will expect a contractor to enter into an agreement which does not give him a fair return on his capital, that does not provide him with the necessary machinery to recover his capital and profit on it. That is what we are doing by inviting private enterprise to come into the road-making business. But we must ensure that the public get a fair deal. It is only by placing an obligation on the Minister and the road authority to write into a toll agreement the machinery for determining its duration and providing for its termination we can ensure that the road authority, the taxpayer and above all, the road user gets a fair crack of the whip. That is what this amendment is all about, nothing more and nothing less. It would be reckless of this House to pass this Bill without that safeguard.
Is the amendment withdrawn?
(Cavan-Monaghan): No.
Question put: "That the word proposed to be deleted stand."
The Dáil divided: Tá, 51; Níl, 15.
Tá
- Ahern, Bertie.
- Ahern, Kit.
- Allen, Lorcan.
- Andrews, David.
- Andrews, Niall.
- Aylward, Liam.
- Barrett, Sylvester.
- Brady, Vincent.
- Briscoe, Ben.
- Browne, Seán.
- Callanan, John.
- Colley, George.
- Cowen, Bernard.
- de Valera, Síle.
- Doherty, Seán.
- Fahey, Jackie.
- Farrell, Joe.
- Filgate, Eddie.
- Fitzsimons, James N.
- Fox, Christopher J.
- Gallagher, Dennis.
- Geoghegan-Quinn, Máire.
- Gibbons, Jim.
- Keegan, Seán.
- Killeen, Tim.
- Killilea, Mark.
- Lawlor, Liam.
- Lemass, Eileen.
- Leonard, Jimmy.
- Leonard, Tom.
- Leyden, Terry.
- Lynch, Jack.
- McCreevy, Charlie.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Molloy, Robert.
- Moore, Seán.
- Morley, P. J.
- Murphy, Ciarán P.
- Nolan, Tom.
- O'Connor, Timothy C.
- O'Donoghue, Martin.
- O'Hanlon, Rory.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Paddy.
- Reynolds, Albert.
- Smith, Michael.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael J.
Níl
- Bermingham, Joseph.
- Bruton, John.
- Conlan, John F.
- Cosgrave, Liam.
- Desmond, Barry.
- Enright, Thomas W.
- FitzGerald, Garret.
- Fitzpatrick, Tom. (Cavan-Monaghan).
- L'Estrange, Gerry.
- Lipper, Mick.
- Murphy, Michael P.
- Pattison, Séamus.
- Quinn, Ruairí.
- Ryan, John J.
- Tully, James.
Tellers: Tá, Deputies Woods and Briscoe; Níl, Deputies L'Estrange and B. Desmond.
Question declared carried.
Amendment declared lost.
(Interruptions.)
Bill, as amended, received for final consideration.
Agreed to take Fifth Stage today.