There is no doubt at all this Bill was speedily put together for some reason known only to the Government and to the Minister. It was admitted by the Minister on the Second Stage that the Bill is in reply to a request from and in support of the Aer Lingus situation. That demonstrates the influence Aer Lingus apparently has in these matters when dealing with the Department of Transport. I suggested not so long ago that the time had come when there was an obvious need to separate the controlling Department from the fare structure. This is a clear example of that step not having been taken. It has been clearly shown now that a particular organisation can move not alone a Department but even the Government to meet a point of view. In this instance the result is anything but satisfactory. It is not fair that the Second Stage should be taken today. Amendments will be necessary and we will certainly be obliged to oppose the Bill in its present form. Certain sections may be in the national interest but, taken as a whole, it will militate against the consumer. It is odd, to say the least of it, that a Department interested in consumer legislation should introduce a Bill against the consumer.
The existing fares are most unsatisfactory. Money which should be coming into the country is actually going out of the country. That is most unsatisfactory. It is a reflection on the Department of Transport. Tourists are flying out from outside destinations to their ultimate destination whether it be on holiday or on business. Apparently in other countries the kind of pressure brought to bear on the Department of Transport here does not exist. The whole thrust of this Bill is in support of Aer Lingus. We have all stated our position where our national airline is concerned. We are proud of the service and we are proud of their record. As an island country it is necessary for us to have a working national airline providing a service, irrespective of who might or might not withdraw their service for any reason at any time. But that is not to say that we should close our eyes entirely to the demands and the needs of the people who are using these airlines and who need the service from a consumer point of view.
This Bill does not effect passengers alone. It also affects the airlines and the travel agencies and, to a greater extent, it affects tourism. The only solution to our tourism problem is to get more people to come here. This legislation would have a detrimental effect on tourism. Sooner or later we will have to divorce the controlling Department of the national airline from the fare structuring mechanism which binds all airlines including the national airline.
This Bill was introduced in some haste. No copies were available in the Government Publications Office for the general public who might be interested in it. More than selected interests are involved. Huge numbers of people are involved and concerned about this Bill. Their livelihoods depend upon it. They feel very aggrieved to learn that the Government would move in this way without any consultation with the concerned parties except one party, the party the Minister states he is seeking to support, the national airline.
This Bill is introduced in the last dying days of this session in the hope that all Stages will be passed on the nod. To put it politely, that is sneaky legislation. It is viewed outside as such. The Minister had quite a long time since the court action he referred to, to bring in legislation and have it given a proper airing in a democratic fashion, instead of lumping it in at the end of a session in a conglomeration of measures. That is not good practice, and it has raised the hackles of many people inside and outside the House.
The suggested urgency cannot be justified. The practices which the Minister says he wants to regularise have been with us for quite some time. The Minister could have moved at his leisure at any stage and dealt with this matter in a slow, premeditated way, taking account of all the interests involved, the agents, the airline, the consumers and the operators, and particularly the tourist interests which have such a great bearing on this.
For some years travel agents found it necessary to increase their sales if they were to stay in business. For that reason they were prepared to take a lower profit on the sale of tickets by taking a lower commission. That is all that is involved. They shared that commission with the consumer. The ordinary passenger got a rebate on his fare, and he was very happy to get it. The airline received the very same net fare. There was no loss to the airline, whichever airline it was. The loss was suffered by the agent who was prepared to share part of his commission to generate extra sales and keep in business in very trying times.
The travel agents have increased their sales and the travelling passengers have got a cheaper air fare. We have the most expensive air fares in western Europe. If travel agents were prepared to take less commission from the sales of tickets, and pass the saving on to the consumer, why should the Department act like big daddy and say they could not have that little reduction in the fare because that was not playing the game according to the Department's rules. It makes no financial difference to the airline. The airline will get its stated price.
The Department should be the supporter and the safeguard of the consumer. They should welcome this as a protection and support for the consumer. It is extraordinary that that is not so. The Minister said the Department feel threatened. I do not know why the Department feel threatened. I presume it means that if they do not get their own way they will use the big stick to get their way. That is not in the interest of reform as outlined by other Ministers.
Quite a battle has been going on for some time between the various interests involved in this matter and, in particular, between the Department, certain airlines and certain travel agents. The Department want to have their way come what may. They must have taken that attitude when they commenced the High Court action last year and sought to have commission-splitting made illegal. The High Court may have accepted that the Department were entitled to a temporary injunction at that time but, according to the Supreme Court, they were not entitled to that injunction against the airlines. Since they did not get their way under the rules, the Department are now trying to change the rules so that they will be beyond the rule of law. That is not in the best interests of the Department or the consumer.
If there is such urgency, what were the Minister and the Department doing since last April? Were they waiting for the last few days of this dying session to sneak in legislation in the hope that it would be passed on the nod and they would have their way? That is not the kind of performance we would expect from a regulatory Department. There is no stated reason that can stand up as to why the Department should get involved in the ordinary price competition which exists in the market place between one travel agent and another. Why are they getting involved in this area of activity?
This has not been the practice of the Department in any other type of legislation. It is in the interests of the consumer and the general efficiency of the travel agency business that the cheapest possible fares should be available to those who want to travel. Surely everybody could subscribe to that principle. The hard-pressed consumer is entitled to get the best deal he can. The Department are trying to muck into an area of commercial business in which they were never formerly involved.
It is obvious that if they were genuine in their interest they would have been much more explicit in sections 3 and 4 of the Bill about what they would do if difficulties arose. Why was the Minister not asked to take account of the fare-paying passenger in the legislation as proposed? There is not a word about the consumer. Why does the Minister not encourage competitive pricing? Why is it that he always makes a decision as to what suits him irrespective of anyone else? In this case he is giving no say to the consumer, the unfortunate person who would like to avail of a cheaper fare that he could get in any other jurisdiction on either side of the Atlantic. Why is the Minister not obliged under the legislation to give a written reason for the decision as to whether he approved of a particular fare? In addition, why is he not obliged to justify the reason to a particular operator for not granting a particular fare structure? This is extraordinary legislation in that it is acting as a bulwark for one particular interest, namely, the interest that has been displayed by the Department in their dealings with the national airline for many years. I do not believe the national airline want that situation to continue and certainly the consumers do not want it to continue.
The unfortunate thing about this legislation is that it will tie the legislation of 1982 dealing with tour operators and travel agents into the Acts dealing with air navigation and transport. These are two completely separate codes of operation. It was never intended to regulate the commercial practices of the tour operators under the 1982 Act. That was introduced to secure the financial stability of travel agents and to require them to have a bond available for display to the Minister to guarantee that they were viable and had the necessary finances to meet their commitments under the licence granted by the Minister. That is a far cry from trying to tie them into the Acts dealing with air navigation and transport, as is being attempted in this Bill. This Bill is attempting to do something that was not intended in the other legislation in 1982.
The situation will be that if a travel agent offers better value to any person seeking his business he will be in danger of losing his licence. It is my belief that if section 10 were challenged it would be unconstitutional under Article 43 of the Constitution because it denies the right to an individual to carry on in a commercial way. The Act of 1982 was introduced to remedy a situation that had gone a little astray with regard to the viability of tour operators and it provided that they should have a bond to ensure they did not go bankrupt, thus putting a strain on the Minister's fund. I understand this represents about £4 per ticket sold. I do not understand why the Minister has got involved in tying together these two separate types of operation so far as transport is concerned. That is what this Bill is proposing, but it was never intended that the Minister should get involved in the commercial practices of the tour operators. To suggest to a tour operator who gives a cheaper rate to a group or to an individual that this will be taken into consideration when he applies for renewal of his licence and that he is in danger of losing his licence is, to my mind, grossly undemocratic and unconstitutional. It would not stand up in any court of law.
Tour operators and travel agents have endured difficulties and there have been some collapses which were the subject of much discussion in the past few years. For that reason in 1982 the Government were forced into doing something about it and, as a result, the Act of 1982 provided for bonding. Because of that and because the recession has been biting so hard, it has been necessary for travel agents to sell as much business as possible in order to remain viable. They have provided certain discounted fares at the last minute to minimise their losses. If the Minister had been allowed to complete all Stages of this legislation today he would put some of the tour operators in financial difficulties and this would rebound back on himself in the short-term because he would have to make up the losses through the compensation fund. If the legislation as proposed is implemented no longer will it be possible for a tour operator or an agent to give any concessions with regard to fares. Discounting of business goes on in every walk of life and for Members of the Dail to show the consumers outside that we are so forgetful of their needs and to say that nobody is entitled to a discounted fare borders on the ridiculous. When the Minister has time to consider the matter, I am sure he will be delighted to remove that provision.
The Bill does not take account of the fact that air services are operated under international bilateral agreements between countries. This Bill should not apply to travel between countries where the bilateral agreements do not make provision in relation to the fixing of fares. Otherwise the State will be in violation of its obligations under some of those bilateral arrangements which the Minister has trotted out in trying to support his stand on this matter.
The Minister poses as the protector of Aer Lingus. All of us accept that Aer Lingus must stay in business and provide a service. Nobody is suggesting otherwise. If we were suggesting otherwise the action of a former Fianna Fáil administration in introducing what can only be called a subsidy in respect of the North Atlantic route would not have been contemplated at the time. Then the subsidy was £5 million and it may have been reduced to £4 million since. From the point of view of tourism and industry, it is in our best interests to have a national airline but it is ludicrous to tell the consumers who are paying that subsidy to Aer Lingus that they are not entitled to benefit by way of discounted fares that are available through other airlines who, for reasons best known to themselves, can do the job cheaper. By doing that we are asking the consumer to suffer on both accounts: he pays the subsidy but he cannot have the benefit of discounted fares. Aer Lingus should not be entitled to use the Department as a battering ram to do down the consumer just to get a fare that is still out of line with competition on both sides of the Atlantic, even though the operators concerned attempt to give a little fair play to the customer.
I should have thought it would have been in the interests of all concerned to have more airlines operate in and out of Ireland, thus increasing the number of visitors. It is in our long-term best interest to get as many airlines as possible interested in flying here from destinations that may not now be catered for by the national airline. Certainly it would be in the interest of the tourism business because so far as that trade is concerned we are a second-location destination in any event. Until such time as the question of access transport has been properly thrashed out we will not maximise the potential that exists from the point of view of worldwide tourism. This legislation is militating against any development in that area and, consequently, should not be supported.
Perhaps this is an appropriate time to apply the Restrictive Trade Practices Acts to air transport. At present those Acts do not apply to air transport and there is no reason why one industry should have less stringent requirements than others. If we applied the Acts perhaps we could find out precisely who is making what and where the malfunctions are in the system. From that investigation perhaps we would get cheaper rates to which we are entitled at the same time as protecting Aer Lingus in the national interest.
It has already been stated that this legislation is more than likely in contravention of many EEC rules. With regard to competition, it is contrary to EEC law for any country to pass legislation in support of a particular industry or operation that is directly under its control. There is no question but that Aer Lingus are under the control of the Department of Transport, or perhaps it is the other way round. Whichever has the final clout, it is not permissible under EEC law for the regulating authority to pass specific and selective legislation in support of their own interests. That would be going against all kinds of fair trading and the EEC are already on record as working towards cheaper air fares. That is the trend, and why are the Department running against the tide in not giving the same advantage to the consumers that is available in other jurisdictions? It is well known in the trade that large numbers of consumers are leaving the jurisdiction and getting flights from London or Belfast. You can even get an APEX fare to London and then qualify for a discount for the rest of your journey. Think of the loss of revenue to the State; and it also puts the operators and agencies here out of business. It also makes a laugh of open fair trading between member states. It is a backward step and there is no way, as Deputy Wilson said, that we could support it.
There are many other aspects of the legislation which cause concern including some of the language in the Bill, which is somewhat unusual to say the least. For example, section 5(4) (ii) says:
that the relevant contravention was committed without his consent, connivance or default or that he took, or caused to be taken, reasonable steps to prevent or avoid the contravention.
That puts the whole question of the framing of this legislation in question in that it was done for a particular purpose. The kindest thing that one could say in that regard is that it was sneaked in here in the dying days of this session to give the Department the power to change the ground rules on which they had lost their case not long ago. I do not think that is in the best interests of the national airline, tourism, development or passengers. For that reason I support our spokesman when he rejected this legislation. I hope the Minister will accommodate us by amending some of the offensive sections, especially sections 5 and 10, which should be repungnant even to his thinking and possibly are also repungnant to the Constitution.