Amendment No. 1. Amendments Nos. 3, 4 and 5 are related and may be taken with amendment No. 1.
Tourist Traffic Bill, 1995: Committee and Remaining Stages.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 3, subsection (1), line 26, after "section 3" to insert "of this Act".
This amendment was recommended by the parliamentary draftsman. It has no substantive legal significance and is purely a matter of style and form.
If this amendment were not included, would there be confusion between the Principal Act, 1939, and the current one?
That is probably what it was intended to avoid.
Amendment agreed to.
I move amendment No. 2:
In page 3, subsection (2), line 30, to delete "subsection (1)" and substitute "the Schedule to this Act".
This amendment was also recommended by the parliamentary draftsman to give a more precise legal reference. The provisions in question are mentioned in the Schedule rather than in subsection (1). The amendment does not have any substantive legal consequences.
This amendment deletes subsection (1) and substitutes "the schedule to this Act". Does it delete the whole subsection?
We are only deleting the reference to subsection (1).
What will be the effect of that in law?
It will give it a more precise legal reference.
Is the subsection flawed.
It is less precise and this further clarification was recommended by the parliamentary draftsman.
The parliamentary draftsman is a very decent man but, as the Minister will appreciate, we must form our own views.
I presume the Minister only intends replacing the reference to subsection (1) and not subsection (i).
The amendment will delete the reference to subsection (1) in line 30.
I thought it related to subsection (1) as a whole.
Deputy Killeen has raised a very important point.
I have specifically referred to line 30 in the amendment.
With respect to the Minister, the amendment is somewhat ambiguous and it could apply to subsection (1) rather than the reference to it. However, if the parliamentary draftsman says it is right then we must accept his word.
Amendment agreed to.
I move amendment No. 2a:
In page 3, after line 33, to insert the following subsection: "(3) The contractor shall be required to formally consult with a forum which shall include representatives of Board Fáilte Éireann and of the trade.".
On Second Stage the Minister referred to the possibility of setting up a forum with which the contractor would be able to consult. He properly said — we made the same point when we were in Government — that tourism is one of the most important industries in economic terms and that it will become more significant than agriculture in due course. He also said that the number of tourists would exceed the number of people living in, I presume the Twenty-six Counties.
The Fianna Fáil policy group on tourism and trade is concerned about the appointment of a contractor. We accept that the Arthur D. Little report is a creature of the former Minister and we cannot cavil about it. However, we also form our own opinions and some strong views were expressed about the need for a contractor. My information is that the contractor may come from another country. Under EU regulations the position has to be open to people living in member states. It should be remembered that France and Britian are never slow in casting their eyes to the ground when dealing with issues like this and through some happy coincidence one of their own is inevitably appointed to this sort of position. I am not suggesting that the Minister would think along these lines but he should strive within the proper application of the rules to ensure that the contractor comes from Ireland, either North or South.
If the contractor comes from another country then it is even more important to set up a forum with which he or she can consult. Such a forum should include representatives of Bord Fáilte and the tourism industry. I ask the Minister to seriously consider accepting our amendment. As I said, the establishment of such a forum is essential if the contractor comes from another country as he will not have the necessary knowledge of the industry.
Deputy Andrews has put very eloquently the case for the establishment of a forum. Given the fundamental change proposed in the legislation it is very important to give the trade an input to the system during the early stages. A case may be made for not including such a provision in this Bill but it is a vitally important safety net which will allow the trade to play an active role in this area. The Bill enables Bord Fáilte to enter into a contract with a contractor on such terms and conditions as the board sees fit. Up to now the board dealt directly with the trade and built up an experienced team which is well known in the trade. As Deputy Andrews rightly said, whoever the new contractor is, and particularly if he is from outside the State and has not had experience of dealing with the trade in Ireland, there would be a grave need for an inclusive means for dialogue between the particular interests. I agree with Deputy Andrews that the appropriate and fail-safe way to accommodate this would be by its inclusion in the Bill at this point or, perhaps, a case could be made for its insertion in section 3. There is a strong case to be made for the inclusion of an amendment along these lines and I ask the Minister to consider going back to the parliamentary draftsman to see whether it is possible to include, if not these exact words, something similar.
Deputy Andrews stated his case eloquently. The amendment in the names of Deputy Andrews and Killeen refers to a point of principle which is obvious and necessary. However, it is not appropriate to have it enshrined in legislation. Deputy Andrews referred to organisations or individuals who might be granted this responsibility. No decision has been made on this matter. We must deal with all tenders submitted whether from inside or outside the country.
I was interested to note recently at a Council of Ministers' meeting in Luxembourg, that a trade survey carried out by IBEC revealed that up to 28 per cent of Irish firms had problems exporting to Germany and that 22 per cent had difficulty exporting to France. I recall the rumpus when a French company was outside this building doing some road works a number of years ago. I accept the principle that there has to be discussion with the industry about this important matter. We have a tourism council which is representative of all shades of the tourist industry where these and other matters can be discussed. I also noted Deputy Andrew's comment on Second Stage in respect of people employed by Bord Fáilte who might choose to leave and possibly be considered for future employment. No decision has yet been made on this matter.
In respect of a point raised by Deputy Killeen, Bord Fáilte appoints the contractor. It would be unusual to have a requirement that the contractor consults the board on matters delegated to it. The contractor will be specifically asked by Bord Fáilte to maintain an ongoing dialogue with the industry. The Irish Hotels Federation will continue to have a role in any appeals process for grading and classification. In that context there will be no change in the procedures involved. This means Bord Fáilte will continue to determine standards, set fees and will be involved in the final stages of an appeals process. I accept the spirit and the principle of the Deputies' amendment and I assure them that in the contract to be drawn up between a contractor to be appointed and Bord Fáilte this case will be clearly made. It is not appropriate to have it enshrined in legislation and for that reason I cannot accept the amendment.
The Minister made the point it would seem inappropriate that Bord Fáilte who would be effectively running the process ought to be on the forum. Nevertheless if you accept the principle that such a forum should exist it would be extraordinary that the trade and the contractor should meet formally and that Bord Fáilte would not have a direct role, first, from the point of view of knowing what was happening and, second, from the point of view of the input to whatever regulations they sought to have included for consideration by the contractor. I am delighted the Minister is accepting that the principle of this body must be put in place but I would be happier if it were included specifically in the legislation. When in place it must include, if it is to be effective, not only representatives of the trade but direct Bord Fáilte membership or input as well.
I do not accept the principle of a forum in this case but I accept the principle of consultation with the industry in regard to the regulations and duties to be carried out by the contractor. I assure Deputies that that spirit will be included in any contract to be drawn up with whatever contractor is to be appointed.
The only point we are making, and it is a reasonable one, is that the Minister's party has imposed on the Chamber and the body politic this wretched philosophy of political correctness — a philosophy with which I do not agree. It is corrosive and diminishing to individuals who practise their profession of politics in a decent and generous way as do all politicans in the House. On the basis that we are in this era of that wretched philosophy, particularly promulgated by the Minister's party, we cannot leave anything to chance. The Minister generously said that he goes along with the spirit and principle of the amendment. It is obvious and necessary and at the same time he makes the point that they will consult the industry through the tourism council and other tourist outlets. In those circumstances I fail to accept the Minister's reasoning for non-acceptance of this amendment. We believe it is a fundamental amendment and that it complies with the Minister's party's philosophy of openness and transparency which we are all meant to practise nowadays to the detriment of body politic because it flies in the face of the large majority of decent and good Members of both Houses. The Minister will not be there forever and his successor will have to deal with this matter. This whole area is fraught with difficulty. For that reason only, I will have to press this amendment.
Deputy Andrews referred on a number of occasions to political correctness. It is appropriate that we do a good and effective job and that it is seen to be above board. There is nothing wrong with writing into a contract, specifically, the regulations, duties and responsibilities that contractor will have to carry out and Deputies Andrews and Killeen need have no worries in that regard. When a contractor is appointed their duties and responsibilities under the Bill will be made clear in writing. I have paid tribute on a previous occasion to my predecessor, Deputy McCreevy, who requested for good reasons a consultancy report on this industry. We have examined and accepted this recommendation. Everything will be above board.
I do not see the need for this amendment which would lead to the establishment of another body to be known as a forum. We already have a Tourism Council which represents all sectors of the industry. It has a consultative role and since its establishment has played an important part in the development of tourism policy. I compliment the previous Minister on its establishment.
If this amendment were to be accepted the contractor to whom the board will delegate some of its functions would have two masters. In his introductory remarks last week the Minister said that the board would reserve the right to review the operations of the contractor on an annual basis and there would be an appeals system for applicants who felt they had been unfairly treated by the contractor in deciding on applications for certification, grading or registration. I will deal with the question of the appeals system when we reach the appropriate section.
If another forum were established there would be a conflict of interest between it and the board. There is general acceptance that the certification process has been conducted in a reasonably satisfactory way by Bord Fáilte up to now. The purpose in transferring this duty from Bord Fáilte to an outside contractor is to allow the board to proceed with its core activity, namely, promoting Ireland as a quality tourist destination.
I support the Minister. I do not see the need for a forum as it would only confuse the issue. We already have a Tourism Council to which the Minister and Bord Fáilte are willing to listen. This adequately meets the need for consultation. The tourism industry is unique in terms of the consultation process conducted at every level from the regional tourism organisations and the representative organisations in the different sectors to the Minister and the board itself. If another forum were established we would end up with an unnecessary quango.
I thank the Deputy for his comments. We can deal with the amendment which has been tabled in respect of the appeals system when we reach the appropriate section.
I do not want to be tedious but, on the question of a forum, the Tourism Council could fulfil this role. There is nothing wrong with Deputy Molloy's suggestion. I was not suggesting that we should create extra tiers or layers of bureaucracy — the fewer organisations the better. There is no reason the contractor could not continue to consult with Bord Fáilte.
The Minister has said that the duties of the contractor will be enshrined in the contract and that in those circumstances there is no need to include them in the Bill. It is necessary to do this.
If it is appropriate for him to do so, will the Minister indicate how many tenders have been submitted? Having spoken to a number of people involved in the industry I understand that a particular applicant is being considered but I accept the Minister's word that no one has yet been selected. I must press the amendment although I do not want to be difficult.
Deputy Molloy said the forum could be seen as an additional tier or layer and went on to refer to the Tourism Council. I have no difficulty with that body fulfilling that role provided I receive an assurance that this matter will be dealt with. As a matter of principle, it is important that those involved in the tourism industry are seen to have a central role to play. They already play an important role in economic development. The Tourism Council does not exercise the function that Deputy Andrews and I want it to exercise in relation to this matter. I will be more than pleased if this is to be the case provided the Minister gives us an assurance that the duties and responsibilities of the contractor will be included at some stage. It would be better if they were included in the legislation.
One of the reasons Deputies have encountered a delay in obtaining the amendments is that the debate on Second Stage came to an abrupt end last week. As a result many Members did not have an opportunity to contribute. I did not have an opportunity to finish my own contribution but at least I knew what I wanted to say. Members with a particular interest in this subject should have an opportunity to say what they want to say, to hear the views of other Members and to table amendments to ensure that this legislation will be of benefit to the industry. As a matter of principle, those directly involved ought to be able to take part in a consultation process. I would prefer if this were enshrined in the legislation.
I share the view which has been expressed about the Tourism Council. We have a very good relationship with the industry in general, which is perfectly entitled to raise matters of concern at the council. It can also raise them directly with Bord Fáilte, the chairman and director general of which are members of the Tourism Council. There is a forum to discuss these matters, including the Arthur D. Little report. The industry may bring to my attention, and to the attention of Bord Fáilte, whose chairman and director general are on the council any concerns it may have. The Tourism Council, a very effective body, deals with serious matters and its vision of the tourism industry is followed through in so far as possible. There is very good support within the existing structure and a full understanding that matters of concern may be raised with the council. For that reason I ask the Deputies to withdraw their amendment.
Amendment put and declared lost.
Question proposed: "That section 2, as amended, stand part of the Bill."
This section states that the board may exercise any of its powers and perform any of its functions under each provision mentioned in the Schedule and that it may enter into a contract with a contractor to carry out some of its functions. The board will retain responsibility for the registration scheme, but there is some confusion in the industry about the role of the board and the contractor. Perhaps the Minister will confirm that the registration of Fáilte. It is not clear in section 8 what the role of the board will be or whether the contractor's opinion will be automatically the opinion of the board in all cases. Will the Minister elaborate on the annual review process? Is that matter provided for in existing regulations or will it be included in new regulations to be made under the Bill? There is no reference to the appeals system in the Bill. Is it proposed to amend that system?
I dealt with this matter on Second Stage. No changes are proposed in the appeals system. The Bill provides for a contractor to have delegated to him certain works. It will be the contractor's duty to receive applications for registration of a premises, to inspect the premises, to inform applicants that the premises are eligible for registration, to register premises on payment of the prescribed fee and to issue registration certificates. If, following inspection of the premises, the contractor decides that the premises are not eligible for registration, he will inform the applicant that in the opinion of the board the premises are not eligible for registration and will allow 14 days within which an appeal may be made in writing by the applicant. If no appeal is lodged within the given time the contractor will refuse the application. If an appeal is made, Bord Fáilte will pursue the next stage of the process. Bord Fáilte retains the final say in regard to registration, will prescribe the fee and set the criteria.
Question put and agreed to.
SECTION 3.
I move amendment No. 3:
In page 4, line 4, after "section 2 (1)" to insert "of this Act".
Amendment agreed to.
I move amendment No. 3a:
In page 4, between lines 4 and 5, to insert the following subsection:
"(2) A formal appeals procedure shall be put in place by order of the Minister and laid before the Houses of the Oireachtas."
If ever an amendment deserved to be accepted by the Minister, this is one. The explanatory memorandum to this Bill states, under the heading "Background".
Bord Fáilte will also retain responsibility for the operation of the final stages of the appeals mechanism provided for under the Tourist Traffic Acts, when applications for registration and renewal of registration are refused and in the case of cancellation of registration. They will also be involved in the final stages of the appeals mechanism for grading of accommodation. All other aspects of the inspection process will, in future, be undertaken by the third party contractor.
We are proposing that a formal appeals procedure be put in place by order of the Minister and laid before the Houses of the Oireachtas. This is a glaring example of an unintentional omission on the part of the Minister. When scrutinising this Bill we came to the conclusion, almost unanimously, that this procedure should be put in place by order of the Minister. It will be a matter for the Minister to draft the order as he wishes.
This comes back to the attitude that everything nowadays must be seen to be up-front and above board, as was generally the position in the past. I make my point out of boredom with talk about transparency and openness and the other guff we hear nowadays. We may as well put into practice what has been preached. This amendment would give effect to a formal appeals procedure which shall be put in place by order of the Minister and laid before the Houses of the Oireachtas. Nothing could be clearer, more concise, simpler or more lawful.
The Minister rightly outlined on Second Stage the procedures to be put in place and said that Bord Fáilte will retain a central role in controlling the appeals procedure. He set out the terms under which an appeal will be received by the board. That has operated well to date but, as Deputy Andrews said, there is a strong case for the Minister to publicly put in place this procedure. He should seriously consider doing so particularly in the context of changes regarding contractors.
I listened with interest to the contributions of Deputies Andrews and Killeen. The 1939 and 1952 Acts, and other tourism Acts, outline specifically the step-by-step procedure to be followed. It is crystal clear and enshrined in law. It is important to appreciate that no change is envisaged in respect of the existing appeals procedure because the system has worked very well to date. Only a small number of claims, approximately ten, have been received annually and very few of those go through the entire process.
The only change, if it could be classed as change, is that the contractor rather than Bord Fáilte will carry out the initial phase of the appeals procedure. If Bord Fáilte needs to be involved in the final stages of an appeal, it would send one of its officials to complete a physical inspection of the premises under scrutiny. Based on that report, its board would make the final decision. This matter is outlined step-by-step, enshrined in legislation and has been tried and proven over the years. All that is involved here is that the contractor will carry out the initial stages of an appeals procedure and, as has been the case in the past, Bord Fáilte will retain the final say in the matter.
I accept the Minister's point and agree that the scheme has been successful to date. I thank him for letting us know that very few appeals have been made annually. That is a great tribute to the trade and Bord Fáilte for the way they have handled matters. Nevertheless, the point Deputy Andrews and I are making is that this legislation seeks to give new powers to the board regarding the appointment of a contractor. We welcome that the Minister stated clearly that the same appeals procedure will be in place, but that is not clearly set out in this legislation. That is the nub of the difficulty. It is not clear that section 3 amends the 1939 Act and that it contains the appeals procedure outlined by the Minister.
This legislation is designed to give effect to the legislative changes required following reforms in Bord Fáilte. The existing legislation is unchanged and the procedures, well tried and proven over the years, also stand.
We have the relevant Acts regarding this and other matters before us and are fully aware of the requirements set out in legislative form. It appears we are now engaged effectively — and I use this term in the best sense as Bord Fáilte and its members have served this country well and have been transparent and open on all issues and the law may not improve matters — in the breaking up of Bord Fáilte. We are not adopting an aggressive approach to its break-up or going in with our fists raised, but we are engaged in the fundamental reform of probably the most important arm of our tourism industry, Bord Fáilte. We are aware that there exists in legislation all the necessary requirements regarding an appeals procedure. We are urging, as this legislation is so fundamental to the future livelihood of many thousands of people, that this appeals procedure be enshrined in the Bill. We want a statement referring to it included. That will not interfere with the existing legislation, but will encapsulate all those legislative provisions the Minister said exist in other Acts.
For those reasons we insist on the Minister accepting the amendment. We are not suggesting any wrongdoing on the part of Bord Fáilte. Its contribution to this country has been immense. We are not imputing that it has been or ever will be guilty of any wrongdoing. We are proposing a reasonable and fundamental amendment to this shattering legislation as far as Bord Fáilte is concerned. The contractor is taking over the functions of people who have been made redundant out of choice. That redundancy scheme was offered and those people offered themselves on that altar.
Will the Minister give the references for the appeals mechanism in existing legislation?
Regarding Deputy Andrews's point, this does not represent the break up of Bord Fáilte.
That is not what I said.
I believe the Deputy used the words "break-up", but, perhaps, he did not mean it in that sense.
I explained what I meant by it. I used those words.
The changes in Bord Fáilte will result in it being the No. 1 tourism board in Europe. The effect of these changes, and the assistance that will be given to the board, will ensure that.
Is it not that already?
Some say it is not, but I intend to prove beyond any doubt that it is and will be.
Who says that? Mr. A. D. Little said it is.
On Deputy Molloy's question, legislative effect is given to the appeals procedure in section 27 (3) (a) and (b) of the Tourist Traffic Act, 1939 and section 30 (4) (a) and (b) of that Act, as amended by section 28 of the Tourist Traffic Act, 1952 and section 32 (3) (a) and (b) of the Tourist Traffic Act, 1952.
The Schedule includes a reference to section 27 (3) (a) and (b) of the Tourist Traffic Act, 1939 which the Minister confirmed is one of the powers establishing the appeals mechanism. I do not have the 1939 Act before me, but the legislation we are being asked to pass states that a contractor can carry out the functions of the board. Does the Minister agree with that interpretation? If so, the contractor could operate the appeals mechanism of the existing Acts. Will the Minister comment on that?
Initial inspection of a premises in respect of an application for registration, provided for under section 27 (3) (a) and (b) of the 1939 Act, is being transferred to the contractor. However, if a premises were deemed unfit for registration the process would be finalised by Board Fáilte.
I asked the Minister to indicate the sections of the Tourist Traffic Acts that establish the appeals mechanism and he referred to section 27 (3) (a) and (b) of the 1939 Act. He has now stated that section provides for a different power.
The purpose of the legislation is to give contractors certain functions. Section 27 (3) (a) and (b) refers to notifying applicants of the ineligibility of their premises for registration and their right to appeal. This section merely gives the contractor the right to carry out an initial inspection and, if a premises is deemed unworthy of registration, to inform the proprietor or applicant and give him or her the right to appeal. A similar provision is provided for in the Tourist Traffic Act, 1952.
In the absence of the agreement of the Minister on the wording of our amendment, Deputy Molloy made a valid point and highlighted a potential difficulty in regard to interpretation. Will the Minister at least consider inserting as an addendum to section 3 a reference to the relevant sections of the 1952 and 1939 Acts, thereby ensuring that the appeals procedure will continue to operate but as the preserve of the board as opposed to a contractor or another outside agency?
One of the reasons good relationships exist between all sides of the industry is that this matter is clear to it. The industry is well aware the legislation does not involve any procedural changes in this regard. The procedures set out in existing legislation are crystal clear and for that reason the number of cases that go through the final process is very small. It is not necessary to change the existing procedures because they have been well tried and tested over the years.
Section 2 (2) states:
Where a contractor or an employee of a contractor exercises any power or performs any function in relation to any of the provisions mentioned in subsection (1) any reference in that provision to the board shall be construed as a reference to a contractor and any reference to an officer of the Board shall be construed as a reference to an employee of a contractor.
The appeals mechanism is established under three of the references in the Schedule, sections 27 (3) (a) and (b) and 30 (4) (a) and (b) of the 1939 Act and section 32 (3) (a) and (b) of the 1952 Act. The Minister has not satisfied me that the appeals mechanism would not be extended to include a contractor or an employee of a contractor if all enactments under the Schedule provide that "the Board" can also include the contractor. If the functions given to the board under the enactments I mentioned refer to the appeals mechanism, a reasonable reading of section 2 (2) would indicate that the contractor can also perform those functions.
The appeals procedure is set out in section 27, Part III, of the 1939 Act. The functions to be delegated to the contractor under this Bill will include merely those that would involve an initial inspection and informing the applicant of his or her right to appeal where registration is refused. The remainder of an appeals procedure is covered under the 1939 and 1952 Acts and remains under the remit of Bord Fáilte. Under this legislation we are merely giving a contractor the right to carry out an initial inspection of a premises. If deregistration is recommended, the process will be dealt with by Bord Fáilte.
This amendment is giving rise to confusion. We support Deputy Molloy's point. We proposed this formula to tidy up the legislation and update the law. While legislation enacted many years ago may be effective, it is not true in this case. Bord Fáilte and tourism are entering a new era, which I hope will be a good one and for that reason we ask the Minister to accept our amendment.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
The appeals process is set out in section 27, Part III of the 1939 Act. All that is involved here is the transfer to the contractor of the initial part of that process. There is not any other change involved, nor does this Bill have any other effect. Members can be quite sure that, in law, Bord Fáilte will retain its function, clearly outlined and proven over the years in regard to the appeals process.
We all accept that is the Minister's intention and he believes it to be enshrined in the Bill.
I know it.
Before Report Stage perhaps he could re-examine the matter. He might refer it to his legal adviser and ascertain that the appeals procedure is safeguarded on the lines he has outlined.
I too would like confirmation that the appeals procedure is seen to be a separate function, confined to Bord Fáilte, and that there is not any possibility that that function could be extended to a contractor or employee of the contractor. The manner in which this Bill is structured allows for the devolving of the powers of Bord Fáilte in the matter of registration and grading of accommodation and so on to a contractor. It is being done in a type of omnibus fashion which would suggest the appeals procedure could be extended as well.
The industry wants a clear demarcation line drawn between the role of Bord Fáilte and that of a contractor. It is accepted that the function should be carried out by a contractor, but there is a desire within the trade that responsibility for the registration and gradings mechanism should rest with Bord Fáilte. It is the view of the industry that the opinion of the contractor should never be seen to displace the role of Bord Fáilte under section 8 which states:
References to the opinion of the Board in sections 27 and 30 of the Principal Act and section 32 of the Tourist Traffic Act, 1952, shall be construed as references to such opinion formed by the Board itself and not by the Board acting through or by any contractor or any employee of a contractor.
There is merit in the concept of a separate appeals mechanism being written in the Bill, clearly establishing where the final responsibility for this registration and grading system lies and drawing a clear demarcation line between the role of the contractor and that of Bord Fáilte. This would alleviate anxieties within the industry.
I can give Deputy Molloy and others a categoric assurance that this is not and cannot be extended to the contractor in that the relevant subsections of section 27 of the 1939 Act are not included in the Schedule to this Bill. Therefore, it is quite specific and very clear that the final appeals procedure rests with Bord Fáilte, in law, and is not being transferred to the contractor. This is why it has not been included in the Schedule to this Bill. We have checked this out thoroughly. I can give the House a categoric assurance that this cannot and will not happen in respect of whatever contractor may be appointed.
I have heard various Ministers give categoric assurances but we are writing, not interpreting, the legislation. On many occasions the courts have interpreted legislation differently from the Minister who introduced it. I have even heard Attorneys General give advice subsequently overturned by the Supreme Court. One would not need to be too definitive or absolute; interpretation is what is important. Lawyers within the industry have also examined this. There is some concern out there. Rather than the Minister dismissing the arguments advanced in the amendment tabled by Deputies Andrews and Killeen, it would be helpful if he were prepared to re-examine this to ensure that any doubts are eliminated or, in the event of such doubts proving to be well founded, he were prepared to introduce a new section clearly establishing the difference once and for all. That implies that time would be needed between Committee and Report Stages. There would not be some type of quick arrangement between the Whips coming to the end of the parliamentary session when there will always be a desire to rush legislation through in order to engage in other activities, by-election campaigns or whatever. We have seen legislation rushed through before and later regretted because it had not been properly examined in the first place.
Although the Minister may be quite happy in the advice he is getting that there are no grounds for such fear, he must dispel those concerns voiced on this side of the House and outside. If the Minister can assure us that he will have the matter examined further, perhaps obtaining a further opinion from the Attorney General, that would be his best approach.
Deputy Molloy is quite right to voice perfectly legitimate concerns. This is something about which I was concerned and I had it examined exhaustively. The Deputy is also correct to say that I cannot interpret the legislation — that is a matter for the courts.
The fact that the appeals procedure will remain within the remit of Bord Fáilte, as has been its right since the enactment of the 1939 Act, is very clear. The subsections of section 27 of that Act are applicable to Bord Fáilte. It is clear that all that is being transferred to the contractor is the initial inspection procedure. It is equally clear that the final arbitration in respect of decisions on this remains, as it should, with Bord Fáilte.
When Deputy Andrews and I tabled this amendment we were under the impression that the procedure outlined in the Principal Act obtained but it was not absolutely clear to us that it continues to apply in the manner in which the Minister assures us it does. We allowed some leeway by providing the safety net of the procedure which would be put in place by order of the Minister being placed before both Houses of the Oireachtas. In view of what the Minister has said and our discussion here it seems important that an even stronger provision be incorporated at this stage. While accepting that the Minister is quite convinced that the 1939 and subsequent Acts, in so far as they relate to an appeals procedure, are not amended by this Bill, in addition to the fact that the Schedule does not include those subsections, the Bill taken as a whole could be open to the interpretation that the appeals procedure might well be delegated to a contractor on behalf of Bord Fáilte.
The Minister should take account of the very strong arguments on the matter of clarity. The trade has clearly developed good relations with Bord Fáilte and would wish Bord Fáilte to continue to have absolute, unfettered control of the appeals procedure. I would be satisfied if it were perfectly clear in the Act that the sections outlined by the Minister continue to constitute the appeals procedure in relation to the current Act.
To return to the proposition made by Deputies Molloy and Killeen, having regard to the principle of accountability, should Bord Fáilte — I ask this question rhetorically and there is nothing sinister or threatening in my language — be a judge in the causes of those it represents? That is a fundamental principle and one to which we have given considerable thought. I do not believe for one moment that Bord Fáilte transgresses the principles of natural justice but it is coming close to that. In this legislation the Minister sets down the legal parameters within which this Act should be operated in the context of the contractor failing to renew registration, where it is refused, and in the case of the cancellation of registration. In those circumstances, is it reasonable that the same organisation which appoints the contractor should have the appeals mechanism within its remit?
I want to be clear in what I am saying. Bord Fáilte has served this country well and will continue to do so but I believe now is the time for us to have courage in regard to this legislation. There have been references to the 1939, 1952, 1957 and 1988 legislation which relate, in one way or another, to the tourism industry. The Schedule sets out the Tourist Act, 1939, right through to the Intoxicating Liquor Act, 1988, and for that reason we believe this amendment is appropriate.
It is interesting to note that the order of the House provides for these amendments to be taken on Committee and Report Stages and that the Bill will conclude by 7 o'clock this evening. That does not afford Deputy Molloy's party or mine an opportunity of asking the Minister to reconsider the amendment, as is the norm. The way the business is being conducted now means that there is not any opportunity for reflection and that is not right for what we seek to achieve, namely, the intellectual advantage of good legislation.
I ask the Minister to reconsider the proposal put forward by Deputy Killeen and myself with a view to updating the legislation and setting down clearly what is required in the context of the effect of the fundamental judgment of the contractor on the livelihood of people operating in small towns and villages. This organisation will touch the very heart of communities if applications are refused or registrations cancelled. The appeals procedure should be taken out of the hands of Bord Fáilte and put into independent hands. I do not intend to impute any wrongdoing or proposed wrongdoing to Bord Fáilte. I am merely saying it is reasonable and proper that the appeals procedure is seen to be independent and function as an independent entity. Under the proposal, the Minister can lay an order before the House which will take its place accordingly.
Does Deputy Molloy wish to come in again?
I want to hear the Minister's response to Deputy Andrews.
If I had time, I would like to examine the question of consolidating all these Acts which have been in place since 1939. I cannot do that now but I accept the point that legislation covering a period of 50 years should be consolidated. However, these things do not happen overnight and what is involved here are the relevant changes to which legislative effect must be given in respect of Bord Fáilte.
My understanding of the proposal originally put forward by Deputies Killeen and Andrews is that there should be a section relevant to the appeals process laid down separately in this legislation. Deputy Andrews said he would like this process to be removed from Bord Fáilte and put in separately under the Act. However, the industry is well disposed towards having finality in this process retained by Bord Fáilte, it has been adamant in that regard and that is what is being done here. The sections in respect of the final process of appeal are enshrined in law to Bord Fáilte and will remain so.
Does the Minister have a problem with the wording of the amendment put forward by the two Deputies which proposes that a formal appeals procedure should be put in place by order of the Minister and laid before the Houses of the Oireachtas? It does not state that the Minister shall be the person to decide the appeals or that the appeals function be taken away from Bord Fáilte; it leaves it to the Minister to devise the appeals procedure in view of the fundamental change this Bill proposes in the area of registration, grading and classification. What is the Minister's fundamental objection to this?
It is interesting that the Minister regrets he has not sufficient time to consolidate all the tourist traffic Acts into one Act. I suggest it is time for him to initiate such work within his Department to tidy up this whole area. The industry is different now from what it was in 1939 when it was a small business employing few people and confined mainly to a small number of traditional seaside resorts and the city of Dublin. It now extends across the country and is a major revenue earner for families living in the remotest parts. It has a phenomenal influence on sustaining life in rural areas and there is no other industry identified by Government which can bring revenue to these areas to the same extent. Tourism is now a major plank in the economy, sustaining tens of thousands of families throughout the year. In his introductory speech the Minister said the industry was growing apace and one could see the day when it would surpass our major industry, agriculture, as a revenue earner. Invisible exports earned through tourism are of special value to us because of the way the money filters down through the economy and it is important that the Houses of the Oireachtas should take it more seriously instead of introducing ad hoc changes. Legislation should be updated and consolidated. Initiatives taken in recent times by different Ministers have been beneficial and this particular move was initiated by the then Minister, Deputy McCreevy.
Great work has been done by the pioneers of tourism. The late Erskine Childers was the first Minister to see the potential of this industry. He travelled the length and breadth of the country advocating the merits of tourism as a means of bringing revenue into rural Ireland. From those early days and the development of Bord Fáilte there has been tremendous expansion and dedication. The Minister may regret having said that he did not have time to undertake the rationalisation of the legislation and bring in a comprehensive Bill encompassing all the Acts from 1939 onwards. If he has not initiated that type of work he should make a start as soon as possible.
What objections has the Minister to the wording of the proposed amendment? The terms are very generous and leave it to the Minister to determine the procedures for the new appeals system. There is a requirement that he lay his Order before the Houses of the Oireachtas, a standard procedure much loved by many Ministers. I suggest this would be helpful in the new environment in which the State is shedding functions that can be better undertaken by outside agencies. That is the principle which my party has been advocating since its foundation and it stands four square behind it. It is the way forward.
In the past there was a need for State involvement to establish enterprise as it was not possible for private enterprise to do so because the money was not available. We are maturing and strengthening and the State should not continue to cling to functions when there are others in the private sector who are willing to undertake them. The sooner this example is followed in other State bodies the better.
The guarantee to those in the industry that the changed situation will not effect any substantial change in the way the scheme operates is that a formal appeal structure will be established. That is what is proposed in the amendment and it seems very reasonable. The Minister is a reasonable man and I am surprised he cannot see his way to accepting it or else stating what is wrong with the wording. It is being written into this Bill and that is the place to have it. We should not have to search as far back as the 1939 Act to find the appeals mechanisms under the various Acts to see if things have changed or whether the board's role will be fully retained and that aspect will not be devolved to outside operators. It is important that the formal appeals procedure is retained by Bord Fáilte when it is shedding the day to day work involved in visiting establishments and grading them in accordance with the classifications system. I have been looking through the electorate grading critria for hotels and it is extraordinary that the State is involved as that function should have been devolved long ago. Similar to planning cases where the State is the final arbiter it is appropriate that Bord Fáilte is clearly established as the final arbiter under the Bill where the day to day functions are being devolved to outside contractors. Has the Minister some objection to the form of words used to achieve this objective? If so, will he suggest an alternative or has he other reasons for objecting to it?
Deputy Molloy has made a number of relevant points. The wording used by Deputies Andrews and Killeen in their amendment is fine in itself but is not necessary. A well tried and proven step by step appeals process is set out and enshrined in law. The system has worked very well to date and I do not propose to change it. In any year a small number of cases will come up for scrutiny and of those a very small number will go through the whole process. The appeals procedure has already been laid before the House for a great number of years. We have had discussions with the Tourism Council, the hotel industry and the members of Bord Fáilte. Everybody associated with the industry understands it quite clearly. The industry made the point very strongly to me that Bord Fáilte should retain finality and that is what is happening. It is enshrined in law and the procedure is set out very clearly, step by step, and has been well proven over the years.
The Minister says the procedure is set out clearly step by step Will he state the reference and set out the argument he is relying on as contained in the Tourist Traffic Act?
I do not want to read the entire Act into the record, but section 27 is as follows:
(1) Whenever an application is duly made to the Board for the registration of premises in a register, the Board shall cause such premises to be inspected by an officer of the Board.
(2) Whenever premises in respect of which an application was duly made to the Board for registration in a register have been inspected under sub-section (1) of this section and the Board is of opinion, that such premises are eligible for registration in such register, the Board shall inform the applicant that his premises will be registered in such register on payment to the Board of the appropriate prescribed fee.
(3) Whenever premises in respect of which an application was duly made to the Board for registration in a register have been inspected under sub-section (1) of this section and the board is of opinion that such premises are not eligible for registration in such register, the following provisions shall apply and have effect, that is to say:—
(a) the Board shall serve notice upon the applicant that the Board is of opinion that such premises are not eligible for registration in such register and that the applicant may, within fourteen days after service of such notice make written representations to the Board with a view to showing that such premises are eligible for such registration;
(b) if during the said fourteen days no such written representations are received by the Board, the Board shall refuse such application;
(c) if during the said fourteen days such written representations are received by the Board, the Board shall cause a second inspection of such premises to be made by a different officer of the Board;
(d) if the Board, notwithstanding such second inspection and having considered the written representations received as aforesaid, remains of opinion that such premises are not eligible for registration in such register, the Board shall refuse such application;
(e) if the Board, as a result of such second inspection and having considered the written representations received as aforesaid, becomes of opinion that such premises are eligible for registration in such register, the Board shall inform the applicant that his premises will be registered in such register on payment to the Board of the appropriate prescribed fee.
(4) An applicant for registration of premises in a register who has been informed by the Board that such premises will be registered in such register on payment to the Board of the appropriate prescribed fee may pay the said fee to the Board, and thereupon the Board shall register such premises in such register.
(5) References in this section to the opinion of the Board that premises are not eligible for registration in any register shall be construed as references to such opinion formed by the Board itself and not by the Board acting through or by any of its officers or servants.
(6) The fees prescribed for the purposes of this section may be so prescribed as to vary in amount according to the register in which the relevant premises are to be registered and according to any other matters which the Board thinks proper.
Section 27 (3) (a) provides that if in the board's opinion the premises are not eligible for registration, it shall serve notice and the person can make written representations to the board. Paragraph (b) provides that if no representations are received the board shall then refuse the application. Under the Bill that means the contractor shall refuse. Thus the contractor is involved in the appeals mechanism in that if it is determined that the contractor refused an application and the applicant was invited to make written representations but did not do so within 14 days, the contractor can then decide to refuse the application. Part of the appeals mechanism is being operated by the contractor under the section. The position is not as clear as the Minister indicated earlier.
The function of the initial inspection is being transferred to the contractor. If the contractor decides the premises should not be registered he so informs the applicant and informs him of his right to appeal. If the applicant does not appeal within the prescribed time the deregistration stands. If the applicant submits an appeal within 14 days, Bord Fáilte will take the process from there. The section of the Act dealing with the transfer of a function to the contractor relates only to the initial inspection, and if the contractor decides that the premises should not be registered he informs the applicant of that and of his right of appeal.
I seek the guidance of the Chair on a matter that came to my notice just now. I confess I had not adverted to the fact that the Report and Final Stages were to be taken this evening until Deputy Andrews mentioned it. Is it possible at this stage to table an amendment for Report Stage with the agreement of the Minister? Arising from what the Minister has read, there is a real danger that what Deputy Molloy mentioned could happen. The Minister says the Schedule goes only as far as section 27 (3) (a) and (b). That may well turn out to be the case, but it is a close one to call and on the basis of the case made on the Opposition benches, that if we could alter this and include what the Minister wants as much as we do in regard to the appeals procedure, we should take the opportunity to do so. I appreciate that the Order of the House which was made today governs the actions of the Chair and ours. However, I wonder if it is still possible to table an amendment with the agreement of the Minister. The amendment tabled by Deputy Andrews and me was drawn up in view of the provisions of the 1939 Act, but has not succeeded in doing that we want or what the House would require. However, I will press it as it stands unless there is a possibility of changing it and tabling a new amendment for Report Stage which would clarify matters. There is a very great need for this because the appeals procedure as set out in section 27 (3) (c) to (e) and 27 (5) and (6) continues to apply.
There is another argument which was illustrated by Deputy Andrews and which our amendment would have accommodated by giving the Minister even more power and widening the provisions of the appeals procedure. I tend to the view that the old appeals procedure which appears to work well might be best, but I would be happy to agree to a new amendment, even one tabled by the Minister, on Report Stage. In section 8 a number of sections of the Principal Act are mentioned, as is the 1952 Act. There is an almost compelling case for absolute clarity in the appeals procedure and the minimum required would be a statement that the provisions of the 1939 Act continue. However, if possible, I would prefer a little more.
The paragraphs of section 27 of the 1939 Act which are relevant to Bord Fáilte retaining its final and complete say in respect of the appeals process are not being transferred into the Schedule to this Act. It could not be any clearer that the contractor is only involved in the initial process—the final say rests with the board. That already stands in law and will continue to stand. This matter has been discussed by everybody concerned in the industry and they fully understand the position. I would not attempt to enshrine in legislation something as fundamental as this if I was not satisfied as to its clarity. The taking of Committee and Remaining Stages was agreed to by the Whips as was the Order of the House.
The proceedings governing this measure were determined on the Order of Business this morning and are that Committee and remaining Stages, if not previously concluded, shall be brought to a conclusion at 7 p.m. by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister for Tourism and Trade. Clearly the Chair could and perhaps would accept amendments from Deputy Killeen or other Members for Report Stage. However, the time factor is such that we will not reach Report Stage unless we make progress. It is a matter for the Minister to accept amendments.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
We were asking about the procedure for putting down an amendment. The Ceann Comhairle indicated he would accept an amendment although the Order of the House is that Committee and Report Stages shall conclude at 7 o'clock. We propose to amend our amendment but I am not sure if it is too late for the Minister to accept it. Will the Chair guide me on the next move?
Progress on Committee Stage is such that it is difficult to see us reaching Report Stage. It is the prerogative of the Minister to accept amendments.
The arrangements for Committee and Report Stages were agreed by the Whips.
I am not making a point about that.
It is the Order of the House.
The Deputies raised legitimate concerns. I would not like to introduce a section about which we were unclear or which is a cause of concern to the industry. The procedures are set out in law, they are clear and have been proven over the years.
An appeals mechanism established in 1939 is not adequate to deal with today's needs. I fully support the transfer of this function to outside contractors. When the 1939 Act was passed it was not envisaged that the appeals mechanism would operate in circumstances where the registration functions would be contracted out, possibly to people from outside the country. It is a welcome change as it is unnecessary for the State to carry out this function.
The industry has expressed concern and it is most unsatisfactory for the Government to bring in a guillotine motion to ram the measure through without allowing proper consideration of the points made. I appeal to the Minister, who is a reasonable man, not to take Report and Final Stages now. I know the House made an Order but many orders are altered by way of agreement. The House has been suspended by agreement, to discuss aspects of Bills which were in dispute and hindering progress. The unhappy atmosphere created by the Government's guillotine motion will not help resolve this matter. The Minister indicated that the Order of the House states the Bill must pass at 7 o'clock irrespective of whether all sections or amendments have been debated. Too often in the past that approach resulted in bad legislation necessitating amendment. I ask the Minister to agree to take Committee Stage today and Report Stage tomorrow morning.
Given the Minister's inadequate response we have a duty to do everything possible to improve the Bill and avoid the creation of pitfalls. We will not be able to do this, as the Minister insists all Stages must be completed by 7 o'clock. The matter can only be resolved if he puts down an amendment on Report Stage. Unless the Minister points out the flaws in this amendment so that we can take account of them, a Report Stage amendment put down by us will meet the same fate as this one.
It has been repeatedly pointed out that this important Bill should include a provision dealing with the new arrangements under the appeals procedure. It may not have occurred to the Minister or his officials that this was necessary, they may have thought that this was adequately catered for under the Acts. However, this is not the view of Opposition spokespersons and I ask the Minister to defer Report Stage until tomorrow.
We are constrained by the Order of the House for today, and this is not a matter for the Minister. It is feasible for Deputy Killeen to table a Report Stage amendment but it is unlikely to be reached. However, the Minister could indicate acceptance of the amendment prior to the question being put at 7 o'clock.
Thank you for your guidance. In the absence of agreement I propose putting down a Report Stage amendment along the lines that the appeals procedure outlined in the Tourist Traffic Act, 1939 shall continue to apply. Members on this side of the House will do everything possible to expedite matters so that this amendment is reached on Report Stage. The Bill as currently drafted may be open to a number of interpretations and, even though the amendment is not the same as the one we had in mind, it is much better than what is provided for in the Bill.
This is the third version of what the Deputies are seeking. Deputy Killeen wants to include an amendment which states that the appeals procedure in the Tourist Traffic Act, 1939, shall continue to apply. For the past hour I have been saying that this is the case in law. Deputy Andrews said the responsibility for the appeals procedure should be taken from Bord Fáilte and a separate provision included in the legislation. To the best of my recollection, Deputy Killeen also said that the appeals procedure should be set out in the Bill.
I was conscious that the scenario outlined by Deputy Molloy could occur and, having discussed the matter at considerable length, I am happy that the provisions governing the appeals process are adequate. The changes will cause minimum disruption to the industry and this is why the procedure under the 1939 Act will continue to apply as heretofore.
The points made by the Minister do not reflect those made by Members on this side of the House. We have made the point that it should be clear from the legislation that an appeals procedure is in place and that its format should have been discussed prior to the introduction of the legislation. The Bill must be clear on the appeals procedure and I do not accept the Minister's argument that it is.
If the Deputy wishes I can read into the record the procedure by which the contractor must abide when refusing an application for registration. This is provided for in law and is perfectly clear.
It is not perfectly clear and any amendment should specifically state that the appeals functions shall be exercised by the board, not the contractor. The Minister has greater expertise available to him to draft an amendment which will achieve this purpose. The Bill must include a section which clearly states that the appeals functions under the Tourist Traffic Act shall only be exercised by the board of Bord Fáilte and not by the contractor to whom the other functions for registration and classification are being devolved. This is an important point, and the Minister has not responded to my request to defer Report Stage until tomorrow or next week.
The Second Stage debate was concluded last week and the arrangements for dealing with the Committee and Remaining Stages were agreed by the Whips of all parties.
That is a dog in the manger attitude; it is jackboot stuff.
It is not jackboot stuff.
Last week I agreed to the question being put on Second Stage on the understanding that the debate could not be resumed the following day. However, this was not the case. Deputy Andrews, Deputy Molloy and I are not seeking to be difficult.
Neither am I.
There is a shortcoming in the legislation and we are giving the Minister an opportunity to amend it. We put down an amendment which drew attention to this shortcoming and we are prepared to put down a Report Stage amendment on it. The sections of the 1939 Act which will continue to apply could be listed. The Minister has better access to these than I and would be in a better position to draft an amendment along these lines. The legislation is far from clear on whether an independent appeals procedure will exist.
The Deputy's amendment proposes that a formal appeals procedure shall be put in place by order of the Minister and shall be laid before the Houses of the Oireachtas. A formal appeals procedure is already in place and is very clear. The only change envisaged is that the contractor will carry out the initial inspection.
If everything is so bright and beautiful——
And clear.
——why will the Minister not accept this jewel which has been put on a plate for him? We bow in his direction and do all the usual obsequious things in an effort to get our own way.
That is a big word and I do not understand it.
The Minister's officials might explain it to him some time. We are hurt that the Minister has sought to suggest that we are confused. He said that Deputy Killeen said one thing, Deputy Molloy said another and I said something else. I assure the Minister that our points were interrelated and part of the same case. We might have caused confusion in the mind of the Minister and, if so, we apologise.
No, the Deputy has not.
It is an important amendment to improve existing legislation. Now we want to propose an amendment to our amendment to placate the Minister and try to bring him around to our point of view but it appears he is not receptive to it this evening. Will we have to go to the Bills Office with our proposed amendment or can we take it on the floor of the House? We are not arguing against the Order of the House we just want to know the procedure? Do we need to hand it to somebody?
We can arrange to have it ferried to the Bills Office for the Deputy.
We have our amendment prepared and we would like to press it on Report Stage.
In relation to the amendment before the House——
I call for a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Do I take it that Deputy Andrews is pressing amendment No. 3a?
No. I presume the proposed amendment to the amendment is being set down. In those circumstances it would be illogical for me to press amendment No. 3a.
We are talking about amendment No. 3a.
I will withdraw it subject to its being raised on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 3b.
In page 4, between lines 4 and 5, to insert the following subsection:
"(3) The contractor shall be required to have a minimum of five years experience of the Irish industry at the appropriate level.".
This amendment is fundamental to the Bill. We have to be careful to keep within the rules and regulations of our membership of the European Union and that we recognise at all times our obligations as members of the Fifteen. It is important that there be a requirement that the contractor should have experience of the industry which he is being called upon to operate under this Bill. The Minister and other Members will agree that if the contractor comes from outside the country this Bill makes a nonsense of this requirement and his obligations to the tourism industry on this island. Will the Minister explain how the tendering process is operated? Will he tell us the number of organisations or persons who have tendered to date, where they have come from and their main areas of operation? Are they in Ireland, Great Britain or the continental mainland and do they conform to the requirements for people tendering for this fundamentally important role?
The reason for the amendment is evident. Any organisation applying for the position of contractor should have a minimum of five years experience of the business into which they are contracting. What more reasonable and responsible amendment can be made? In fairness to him, the Minister is exercising his portfolio well and has the interests of the tourism industry at heart. The people for whom we cater who operate our industry in the context of this Bill should have a minimum of five years' experience. The Minister may have a different number of years in mind; we suggest five years but we will be flexible. If the individual selected does not have any experience it will make a nonsense of the proposal in the Bill. We do not want to see that happen; we want the Bill to be perfect.
We would like to see this provision included in the Bill for three main reasons, the first being that we would like to see a smooth transition to the new system. Everything possible should be done to ensure that this happens. Anyone conversant with the tourism industry would have an enormous advantage in this regard, worthy of consideration.
We would also like to see an Irish applicant having an advantage. We do not know, however, if applications have been received from outside the State. The interests of openness and transparency would be better served if information on this matter was made available.
It is ludicrous that important legislation will be passed by the Oireachtas without specifying the qualfications required by the contractor or employee. These reasons merit debate and we would like to hear the Minister's views.
In accordance with European Union law, a third party contractor to conduct the process of registration and grading will be selected by way of an open tendering procedure. This means that the position was advertised in the press and the official journal across each member state. The key criteria to be used in judging tenders were also set out. These included: the capability to undertake the role, efficiency and reasonable cost within current fee structures, the amount offered by the tenderer to Bord Fáilte for the right to provide a service and to collect associated fees, transparency and objectivity in the service to be provided and accountability for actions.
The contractor selected should have experience and capable of gaining credibility. These factors will be taken into account before a final decision is made and it is of paramount importance that there is a good rapport between the contractor and the industry. It is my responsibility to ensure that the procedures laid down are adhered to and that we obtain a quality result. It is not, therefore, necessary to accept this amendment. Neither would it be appropriate to include it in the Bill as it refers specifically to the Irish tourism industry. I have received complaints from IBEC that attempts have been made to prevent Irish exporters from exporting goods to other member states of the European Union.
We agree with IBEC that some Irish exporters have had a bad experience but, unfortunately, that is how some countries operate. I have always made the point that we have been too "clubby" on various issues. It is for that reason I reacted from time to time within the club rules when I held various portfolios. While it is right and proper that we should take our place IBEC is right to complain when exporters are obstructed in conducting their legitimate operations. I respect its point of view in this regard but there is a difference between the perception and the reality. Unfortunately, in this instance we have to face reality.
I am not suggesting for one moment that we should break the European Union code—we are obliged to conduct a public tendering process and advertise contracts in the European Union journal to allow contractors who may be interested in tendering to do so —but no one will convince me that we will be able to import someone to provide this service. Tourism organisations in France, Germany and Italy, excellent though they may be—I have no expertise to judge their competence—operate in a different environment given the size of the population in those countries.
We need to select someone who understands our culture and heritage. It will not be possible to import someone who understands them. While keeping within the rules we should pay particular attention to an application from a tenderer in this country. We cannot say that the contractor should be an Irish national although that is what we want to say. We would be breaking the law if we were to do so.
This is a clever way of getting over the problem which we must face and understand. How can we import an organisation that does not understand our ethos, culture and heritage? This cannot be done. For that reason we are pressing the amendment which is an important one for the tourism industry. Having discussed the matter with certain elements within the industry who hold strong views on this proposition we have come up with this clever proposal which is in keeping with our obligations to our European Union partners. If the French, Italians and Spanish were to conduct a tendering process, all things being equal, their nationals would be given first choice. That is a matter of experience. Let us not delude ourselves and go down the road of communitarianism, of which we have been guilty from time to time. Let us stand up for what we believe in. I am not suggesting the Minister is doing less than that; all I am saying is that we should stand up for ourselves on this occasion.
The Minister referred to the advertisement for the new contractor and said that certain conditions would apply. I welcome that. The Bill would be enhanced if the provision relating to qualifications was clearer and more definite. Deputy Andrews dealt in some detail with the advantage for a person from this country. That is a very important point and an attempt should be made to ensure the Irish economy benefits from that provision. A smooth transition is equally important at a difficult time but a time of great opportunity for the trade is also worthy of consideration.
I am not sure whether Deputy Andrews has information that I do not have when he speaks about the Spaniards, French and Italians. The amendment proposes a requirement of a minimum of five years experience of the Irish industry at the appropriate level. Does he mean a would-be contractor with four and a half years experience would not qualify? Considering all the Irish industries that win contracts abroad in services, construction, industry and other areas, their tenders must be much better than the home country tenders, otherwise we would do no business abroad—74 per cent of GNP depends on exports and it is very important that we have access to other markets.
Deputies Andrews and Killeen referred to the practice of importing personnel who would understand the ethos, culture and minds of our people. Part of the requirement of this contract relates to experience and qualifications of staff managing and undertaking this function. Staff should have knowledge of and be experienced in conducting inspections and applying defined inspection criteria. Ideally, they should also have suitable qualifications and experience in the hotel-tourist accommodation-restaurant industries. Ability to consistently supply a required level of service in the Republic of Ireland, including making sufficient resources available within Ireland, is also a requirement.
Deputy Andrews who made a very good contribution on Second Stage said he understood that the tendering process was at a sensitive stage and that he did not wish to express any views on applicants. He said, rightly, that those involved in the registration and grading process should be adequately qualified and experienced to carry out the relative inspections and advisory role. He said that the State spent £2.2 million in redundancy payments and asked whether a former employee of Bord Fáilte who took voluntary redundancy would take over this function. That is hardly a cost effective way to do business. On the one hand, I am being told to be very wary of imported experience and, on the other, the Deputy asks whether a former employee might get the contract.
On grounds of cost only.
The committee dealing with this matter, comprising officials from the Department and Bord Fáilte, will ensure the criteria laid down in terms of experience and qualifications are adhered to. That is fundamental to the job on hand and I have given the industry an assurance in that regard. With respect to Deputy Andrews who is an experienced campaigner on both sides of this House, it is not appropriate to include a requirement for specific experience with particular relevance to the Irish industry. The requirements are published in the official magazine available throughout Europe.
On Second Stage I referred to this matter in the context of cost only. I made it very clear that I did not want to prejudice the individual's right to tender in this case in any way because we are living in an open democracy.
I accept that.
I hope the Minister is not confusing that point with this amendment. If he believes that a minimum of five years experience is not acceptable, we would be glad to accept his proposal for a reasonable number of years.
The tendering process operates under EU regulations. We receive substantial sums under the operational programme and it is my responsibility to ensure they are used judiciously in the interests of the industry. In that context, the specifications outlined in the tender documentation are more than adequate to deal with the matter.
Amendment put and declared lost.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 4:
In page 4, line 6, after "section 2 (1)" to insert "of this Act".
Amendment agreed to.
I move amendment No. 5:
In page 4, line 8, after "section 3" to insert "of this Act".
Amendment agreed to.
I move amendment No. 6:
In page 4, between lines 8 and 9, to insert the following subsection:
"(2) The board will renew upon review, each contract with the contractor every 12 months.".
We are not strict about the 12 months period, each contract could probably be reviewed every two to three years as 12 months may be too short a time for contractors operating the scheme. When I was Minister for Defence the then Opposition spokesman, Deputy Barrett, tabled an amendment to the Defence (No. 2) Bill requesting that our troops go to Somalia in the context of peace enforcement rather than as a peacekeeping mission to be reviewed annually. As there is a precedent for such review, I ask the Minister to consider it, but we will not fall out if he does not accept it. It is a point of discussion, but we do not want to obstruct the contractor's operation. As we do not have an opportunity to table a further amendment given the Order of the House regarding Committee and Remaining Stages, we would appreciate the Minister's response to the amendment as drafted.
The intention is to award a contract for a five year period and that the contract, the operation of the contractor and his functions, as delegated, will be subject to review annually. The specification issued to prospective tenderers stipulated that. It is intended that those terms will be set out clearly in any contract drawn up with a contractor.
Section 4, as currently drafted, will allow the board to terminate any contract where the contractor fails to comply with the terms and conditions of the contract. That section can be invoked by the board at any time. The content of the Deputies' amendment is noted, but there is no need to cover the matter specifically in the Bill.
Amendment, by leave, withdrawn.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 7 is in the name of the Minister, amendment No. 7a is an alternative and I suggest that amendments Nos. 7 and 7a be taken together.
I move amendment No. 7:
In page 4, line 25, after "appointment" to insert "of the officer".
Amendment agreed to.
Amendment No. 7a not moved.
I move amendment No. 7b:
In page 4, between lines 25 and 26, to insert the following:
"(6) Registration officers must attain minimum levels of qualifications prior to appointment.'.".
To an extent this amendment relates to the earlier discussion on amendment No. 3b. As the Minister rightly said, the contractor will be required to have a minimum level of qualification. While that is not set out in the Bill, it will be set out in the advertisement for the position and can be pursued directly with the contractor under those provisions. However, that does not seem to apply necessarily to the person given the status of registration officer under this section. The amendment seeks to ensure that when a contractor is appointed, and assuming that he or she complies with the necessary requirements under amendment 3b, he will be empowered to appoint employees who will be termed "registration officers". We seek to ensure that such registration officers will be required to have certain qualifications because it would be damaging if a contractor were to employ people who were considered not to have the relevant qualifications to carry out their functions. The Minister may, and most likely will, say that it is not appropriate to include this provision directly in the legislation, but I tend towards the view that we should err on the side of caution in this regard. I strongly argue for the inclusion of a certain level of qualification in the Bill, by order of the Minister or very much independently of the contractor's wishes regarding the type of people he might designate as registration officers.
I agree that registration officers should have minimum levels of qualification and experience. It is intended that this will be a requirement although I do not consider it necessary to include it specifically in the Bill. There is no requirement for the appointment of existing registration officers under the tourist traffic legislation, but Bord Fáilte, as a matter of practice, always applies minimum criteria in appointing such officers. The contractor will be appointed by Bord Fáilte and a specific and detailed contract — specifying minimum requirements — will be drawn up between the board and the contractor. Obviously Bord Fáilte would not be disposed towards the appointment of unqualified people for a job as sensitive as this one.
This case is strengthened by a provision under subsection (5) which states that the board is entitled to revoke the appointment of a registration officer appointed by the contractor where the board considers that he or she is not properly carrying out duties. If the board were not enabled to do that, the contractor could appoint a registration officer who might be unsuitable for the job and the board would not be able to deal with that officer. That subsection gives the board that extra authority. In the context of a contract drawn up between the board and the contractor minimum qualifications will be specified. That extra power will enable it to deal with the case of an unsuitable registration officer appointed by the contractor. However, I hope that will not arise.
Is the Minister aware there is concern in the industry about the powers being given to registration officers? It was intended that the horse work in this area should be given to an outside company which would undertake, through its employees, the inspection of the various premises and make recommendations on whether they complied with the provisions of the Bill. If they complied, they would be registered with Bord Fáilte based on the opinion of the outside contracting firm. However, under this section the Minister is proposing that the outside firm which carried out the inspection, not Bord Fáilte, will be the registration authority. Has the Minister had representations on this from the industry because he implied in his earlier contributions that the proposals in this Bill had the full support of everybody in the industry and that no concerns had been expressed about them? There is some concern regarding handing over of the registration function, as well as the inspection function, to the outside authority. When we come to deal with a later relevant amendment there seems to be a contradiction in the powers the Minister is giving to registration officers. Section 8 states:
References to the opinion of the Board in sections 27 and 30 of the Principal Act and section 32 of the Tourist Traffic Act, 1952, shall be construed as references to such opinion formed by the Board itself and not by the Board acting through or by any contractor or any employee of a contractor.
The Explanatory and Financial Memorandum states the opposite. In explaining section 8 it states:
Section 8 provides that the opinion of the contractor, or any employee of the contractor, that premises are not eligible for registration or have ceased to be eligible for registration will be construed as the opinion of the Board where the relevant functions have been contracted by the Board.
Section 8 refers to the opinion of the board but the explanatory memorandum refers to the opinion of the contractor. Once the outside company has done its work and decided that a premises should be registered, surely the registration process should be carried out by Bord Fáilte and not by the contractor. Should a registration officer not be appointed in Bord Fáilte to maintain the register of registered companies? That function should not be performed by an outside contractor. Has the Minister received representations on this matter? Why has he considered it necessary to allocate the functions in this way? The industry wants to be assured that ownership of the registration process will rest with Bord Fáilte and not with an outside contractor. Will the Minister elaborate on the conflict between section 8 and the explanatory memorandum?
Representations were received on this matter and I held discussions with interested bodies. The hotels were initially anxious to make the inspections, but having discussed it——
I am talking about the registration, not the inspection.
The registration officer will be an inspector.
Is the Minister using the term "registration officer"?
Yes. The registration function will be delegated to the contractor which means the registration officer physically inspects a premises and under the conditions laid down determines if it should be registered, continue to be registered or deregistered, in which case the appeals process takes place. What we have endeavoured to do runs parallel with the policy of the Deputy's party. As far as possible we have subcontracted functions but the fundamental element of ownership and final arbitration will remain with Bord Fáilte.
If applicants are refused registration they will lose their liquor licence and the appeal process, which is provided for under various Acts, is very cumbersome. It was suggested during a debate on the matter that a modern appeals mechanism should be established under this Bill, The premises of an applicant seeking a liquor licence for a restaurant must be approved by the inspectorate who will also be the registration authority. The objective could be met by the outside body carrying out the inspections and submitting recommendations. To retain ownership of the scheme within the ambit of the State structure, would it not be more appropriate if the registration officer was an employee of Bord Fáilte?
The contractor would obviously appoint people to carry out inspections in respect of registration, but Bord Fáilte will also retain registration officers and in the event of an appeal being lodged they, together with the board of Bord Fáilte, will make the final decision.
What will be the position in regard to the liquor licence of a person whose application for registration is refused? When proprietors are notified they are no longer registered with Bord Fáilte, will they automatically lose their liquor licence? While different procedures apply in respect of restaurants and hotels, in both cases a significant proportion of business would be lost. They depend on registration with Bord Fáilte, not with an outside contractor.
This has applied in very few cases.
The legislation has not yet been enacted.
Under existing legislation a registration officer from Bord Fáilte may deem a premises unfit to be registered, inform the proprietor and then the appeals procedure will take place. Under this legislation the contractor's registration officer will carry out a physical inspection of the premises and if the officer deems the premises unfit for registration the proprietor will be informed of his right to appeal. A Bord Fáilte registration officer will have the final say in preparing a recommendation to go before the board of Bord Fáilte for final decision.
What will be the status of the proprietor's liquor licence in the interim?
There is no appeal process in the case of a liquor licence, but the proprietor can reapply for a licence the following day.
It could take months for the matter to come before the courts. This is a very serious matter. When Galway Corporation was upgraded from a borough council to a county borough, hotels were required to have 20 bedrooms instead of ten. The proprietors of a Bord Fáilte registered ten bedroomed hotel in the area had a liquor licence but could not renew it without building an additional ten bedrooms. The premises was closed for 12 months as a result. The loss of a liquor licence in the hotel business may determine whether one remains in business or goes into liquidation.
I have outlined the position. If a licensed premises is deemed unfit for registration, the proprietor can appeal the decision on the premises but cannot appeal the loss of the liquor licence. However, he can reapply for a liquor licence the following day. The Deputy raised a practical point and Bord Fáilte is acutely sensitive to this matter.
What does that mean?
It is very aware of the consequences to which the Deputy referred.
I accept the Minister is not responsible for the legislation governing liquor licences, but there is a connection between hotel registration and the issue of liquor licences to hotels and restaurants. Surely the Minister should table an amendment, or have one tabled by the Minister for Justice, ensuring that a liquor licence would not be withdrawn from a hotel or restaurant until the appeal had been decided. This would seem to be natural justice.
Under the new legislation the contractor does not have the right to cancel a registration under the appeals procedure. With regard to a liquor licence, it would be the general assumption that somebody engaged in the hotel business would intend to do a good job. Nobody likes to see a place run down to the extent that it would be deregistered. In the past Bord Fáilte has been very sensitive to any reports about hotels. That is the position in regard to the liquor licensing law. The contractor or registration officer will not have the authority to cancel a registration.
The Explanatory and Financial Memorandum states:
Section 8 provides that the opinion of the contractor, or any employee of the contractor, that premises are not eligible for registration or have ceased to be eligible for registration will be construed as the opinion of the Board where the relevant functions have been contracted by the Board.
That is the board deciding that he is no longer entitled to be registered.
The contractor is obliged by law to use that term of reference but it is the board of Bord Fáilte itself which will take the final decision in the case of deregistration. If the registration officer decides that premises are not fit or eligible for retention of a registration certificate, the wording used by the contractor in informing the applicant will be that it is the opinion of the board that his premises are unfit to continue to be registered premises.
Does he cease to have registration from that point?
No. The contractor is not entitled to cancel his registration. He is entitled only to state that in the opinion of the board his premises are not fit to continue to be registered. He will then inform the applicant of his right to appeal, whereupon the process of appeal to Bord Fáilte will commence.
Does he retain his licence for the duration of the appeal? I thought the Minister had said he did not.
He applies for a liquor licence the following day.
The day following what? The appeal might last months. Does the Minister mean the day following the day on which the appeal is decided? I want to know whether his liquor licence is operative from the time he is informed by the registration officer he is no longer eligible for registration. Does his liquor licence cease there and then and does it become possible for him to apply for its renewal only after a successful appeal? If so, this would have major consequences for people within the industry.
Bearing in mind the Minister's uncertainty I wonder how much consideration this matter has been given. It emphasises further the ludicrousness of proceeding with all Stages of this Bill by 7 o'clock this evening. It is most unfair to the House to resort to a guillotine motion in this jackboot fashion, to push through this Bill without the industry having had a proper opportunity to study all of its implications.
I reject that remark by Deputy Molloy since this matter has been discussed by the industry to some considerable extent.
Have concerns been expressed?
Yes, which have been discussed by, among others, the Tourism Council.
There are two different points in regard to restaurant licence and hotel registration. For example, if the registration officer deems the restaurant part of the premises to be unfit for continued registration, the applicant will apply for a new licence immediately thereafter. If a registration officer deems the hotel to be unfit for registration, then the appeals process I have outlined comes into play.
How can he appeal for a new licence if his premises are deemed to be ineligible in that he would not then qualify for a licence?
One does not use one's licence if an appeals process is under way.
The House can see how serious are these implications. One loses one's liquor licence the moment a decision is made that one's premises are no longer eligible for registration.
I appeal to the Minister to consider tabling an amendment himself or through the Minister for Justice, to allow the liquor licence remain operative until the appeal has been decided.
I understand what Deputy Molloy is saying and know that Bord Fáilte has been very sensitive to this issue over the years. I cannot speak for the Department of Justice in this regard. I do not want to table an amendment but I will certainly re-examine that aspect.
It is very serious.
I know that.
I have already cited the case of an hotel having been closed for 12 months through the loss of its liquor licence.
We shall endeavour to have a thread of quality in terms of service and the provision of facilities, representing ourselves as a country of quality in everything we do within the tourism sector. I would hope that those involved in the hotel and accommodation sector, so critical to the expansion of our tourism industry, never reach the point at which they would have to be considered for deregistration. I will take up the point Deputy Molloy mentioned with my colleague, the Minister for Justice.
We are not living in Utopia. I have exposed a serious flaw in the Bill and very much regret the Minister is rushing to take all sections now and only those amendments tabled by him, which is most unsatisfactory. The Minister's response has been very poor, with no assurance that he will consider reexamining this matter to ensure that a liquor licence remains operative for the duration of an appeal. He has given no assurance that the actual registration decision will be one for Bord Fáilte only, and not for an outside contractor, whose function should be merely one of inspection and recommendation.
I have already clearly confirmed that the final say will rest with Bord Fáilte. I have pointed to the earlier Act and read the relevant section into the record. I do not accept that there is a serious flaw in this Bill. I have answered a legitimate concern expressed by Deputy Molloy, have said I will examine that aspect which falls within the remit of the Minister for Justice and talk to her. I have also pointed out quite clearly that the initial inspection function rests with the contractor but that the final say remains with Bord Fáilte. That has been made abundantly clear to everybody within the industry. It is enshrined in law.
I am glad Deputy Killeen and I tabled our amendments. The debate on them has been far-reaching and helpful to the industry. I am very sorry the Minister did not see fit to accept any of our amendments, which is his prerogative. He was open and frank with us and his response to our points was helpful, which we appreciate. Obviously our amendments were tabled with the objective of improving the Bill, based as they were on the Arthur D. Little Limited report on the general position of Bord Fáilte. The Minister can be assured that we will be eternally vigilant on behalf of the tourism industry.
I did accept an amendment tabled by Deputy Killeen, although it may have been slightly rephrased, in respect of registration officers.
I thank all Deputies who contributed, particularly Deputies Andrews, Killeen and Molloy for their persistence and clear comments. I would not expect anything else from Deputy Andrews but the assertion that all Members should be eternally vigilant in this regard.
As it is now 7 o'clock I am required to put the following question in accordance with an Order of the Dáil of this day:
That the amendments set down by the Minister for Tourism and Trade for Committee Stage and not disposed of are hereby made to the Bill; in respect of each of the sections undisposed of the section or, as appropriate, the section, as amended, is hereby agreed to in Committee; that the Schedule is hereby agreed to in Committee; that the Title, as amended, is hereby agreed to in Committee; that the Committee accordingly reports it has considered the Bill and has made amendments thereto and has amended the Title to read as follows:
AN ACT TO ENABLE BORD FÁILTE ÉIREANN TO EXERCISE ITS POWERS AND PERFORM ANY OF ITS FUNCTIONS UNDER THE TOURIST TRAFFIC ACTS, 1939 TO 1987, IN RELATION TO REGISTRATION AND GRADING OF TOURIST ACCOMMODATION AND UNDER THE INTOXICATING LIQUOR ACT, 1988, IN RELATION TO SPECIAL RESTAURANT LICENCES BY OR THROUGH CONTRACTORS AND TO AUTHORISE THE INCREASE OF GRANTS TO BORD FÁILTE ÉIREANN FOR TOURISM DEVELOPMENT AND TO PROVIDE FOR CONNECTED MATTERS.;
that Fourth Stage is hereby completed and that the Bill is hereby passed.
Question put and agreed to.