Aviation Regulation Bill, 2000 [ Seanad ] : Report Stage.

Mr. Higgins

(Mayo): I move amendment No. 1:

In page 5, between lines 24 and 25, to insert the following:

"‘airport user' means any person responsible for the carriage of passengers, mail or freight to or from an airport;".

This amendment is most appropriate in terms of section 2 of the Bill which deals with interpretation and definitions. The various elements are all clearly defined, for example, "airport", "airport authority" and "airport charges" have the meanings assigned to them in the 1998 Act. An authorised officer is a person appointed under section 41 to be an authorised officer and "Commission" means Commission for Aviation Regulation established under section 5. It is peculiar to omit the individual or body to whom the airport is supposed to relate.

The person using the airport is not in any way defined. This is why I tabled the amendment and the definition should be included. I understand this was the precise definition in the original draft of the Bill. It was argued on Committee Stage that this could conceivably be interpreted to mean a person driving a bus to and from an airport and having passengers therein, etc. However, it is peculiar that the Department, having included this definition in the original draft, did not adopt it in the Bill as it stands or come up with a more finely crafted alternative.

Minister of State at the Department of Public Enterprise (Mr. Jacob)

In resubmitting the Committee Stage amendment, the Deputy is effectively seeking the reinstatement of the definition contained in the original Bill. I understand Deputy Stagg indicated in discussions with officials that he is also seeking the restoration of the term "airport user".

As the Minister said on Committee Stage, we are not minded to use the Deputy's wording as it omits the reference to the term "by air". However, I am agreeable to reinserting the original definition and this is referred to in section 40. I hope this is satisfactory.

Mr. Stagg

I thank Mr. David Hanley and Ms Pat O'Connor for their assistance in the interim between Committee and Report Stages and the information they gave to me. It was most useful and I welcome the Minister's decision on the amendment.

Mr. Higgins

(Mayo): I thank the Minister's officials for the manner in which they had dialogue with the Opposition spokespersons. I also thank the Minister for taking on board the broad thrust of what we are trying to achieve.

Amendment, by leave, withdrawn.

Mr. Jacob

I move amendment No. 2:

In page 7, to delete lines 20 to 23.

Although this amendment was accepted on Committee Stage, I am aware that Deputies agree, due to the inclusion of a similar measure in section 27(3), that it can be deleted.

Mr. Stagg

We were seeking to achieve what was described as the Donnelly sausages method of double wrappers for double protection. We were convinced during the dialogue in the interim that one wrapper was enough.

Mr. Jacob

I like the analogy.

Amendment agreed to.

Acting Chairman (Mr. Briscoe)

Amendment No. 3, in the name of Deputy Jim Higgins, arises out of committee proceedings. Amendment No. 29 is related and amendment No. 30 is an alternative to amendment No. 29. Is it agreed that we discuss amendments Nos. 3, 29 and 30 together? Agreed.

Mr. Higgins

(Mayo): I move amendment No. 3:

In page 7, between lines 33 and 34, to insert the following:

"9.–The Minister for Public Enterprise, in conjunction with the Commission for Aviation Regulation, shall ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies in their related field to ensure safety of operations.".

Section 8 deals with the functions of the commission. It sets down the commission functions precisely in three subsections. It states that the commission shall be the competent authority in the State for the purpose of Council Regulation (EEC) No. 95/33 other than the functions of the co-ordinator; that the Commission shall have the function of appointing a co-ordinator under Article 4 of Council Regulation (EEC) No. 95/33; and that the Commission shall have the function of licensing air carriers under Council Regulation (EEC) No. 2407/92 of 23 July 1992.

I have been told by more than one source that there is an omission in the Bill in that the area of airport safety is not addressed or mentioned as such. Given that we are appointing somebody here with a view to having that person act as regulator, overseer or supervisor, surely from the point of view of airport safety we should assign that ultimate responsibility to both the Minister and the Commissioner. The amendment inserts a measure to ensure that there is some ultimate guarantor of airport safety. This is the most appropriate place to insert this amendment, although possibly one could argue about that.

Unfortunately it is a fact of life that there are instances of air rage on an ongoing basis. Last week there was an example of it, where somebody had to be taken forcibly from an Aer Lingus plane, hauled before the courts and remanded on bail. Such incidents occur week in, week out. There was the famous case of the Orlando 12. Life has become extremely difficult for cabin crews. People come unannounced charging up the aisle of a plane into the cockpit and in some cases try to wrest the controls of the plane from the captain or pilot. We cannot be stringent enough regarding air safety and that is the reason I propose to insert this amendment here. It seeks that the track record of all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes, their curriculum vitae and ability to do their job are vetted thoroughly and that the ultimate responsibility for this should rest with the Commissioner, who, after all, is the person responsible for issuing aircraft licences to companies. The Commission should also be responsible for ensuring that persons operating within the zone of the airport have had their backgrounds thoroughly vetted and approved.

Mr. Stagg

The problem here relates to the piece of ground between the building and the aircraft. There is a greyness about the responsibility in that area. We were conscious of the fact that a number of accidents arose in that particular area. Whereas the Health and Safety Authority would have a general overall remit in the country, including that piece of ground of the airport, it would not have a hands-on control of safety. We felt it was important that a specific authority, the Irish Aviation Authority, would have control of safety in the general airline business and that its remit would be broadened from the door of the plane to the door of the building because that was where the difficulty lay. I would ask the Minister to respond to what we are saying in that regard.

Mr. Jacob

Deputy Higgins's amendment relates to the ground-handling issues. He referred to air rage, with which we will deal later.

The importance of safety in the aviation area cannot be over-emphasised and there must be clear lines of authority and responsibility for activities surrounding an aircraft while it is on the ground as well as in the air. As the Minister for Public Enterprise pointed out on Committee Stage, the Irish Aviation Authority and the Health and Safety Authority are liaising closely on the issue of safety regarding ground-handling activities. These agencies have now compiled a draft memorandum of understanding regarding their respective roles and responsibilities and are continuing to maintain close consultation with each other on the matter.

This Department again met the IAA recently on this issue and that authority is satisfied that there is no gap in the regulatory cover for ground-handling operations. Aer Rianta has extensive by-laws – S.I. 95 of 1994 – governing the ramp activities of ground-handling operations and these are very specific regarding such activities.

The IAA regulates the aircraft operators who must assure the safety of their aircraft and must supervise any ground-handling activities involving their aircraft. The HSA is the national body with overall responsibility for the administration and enforcement of health and safety of workers.

On Committee Stage incidents which had occurred at Dublin Airport were mentioned. One of these involved a handler who suffered an injury to his foot when a tow vehicle was driven over it. That was a traffic accident and subject to both Aer Rianta's by-laws and the HSA. The other involved an engineer involved in aircraft maintenance which was investigated both by the IAA and the HSA. As the safety of aircraft was not an issue in that incident, it was the HSA rather than the IAA which prosecuted the airline. In such case, therefore, it was clear where supervisory and regulatory authority lay for such incidents. Any proposal for further regulation in this area would result in duplicating the existing responsibility of aircraft operators who are already licensed by the IAA and could result in the dissipation of safety responsibilities and confusion as to the roles of the various agencies involved.

The Minister for Public Enterprise will keep this matter under review and, notwithstanding the clear advice coming from the relevant bodies that there are no gaps in the existing arrangements governing the safety of ground-handling operations, if such a gap were to emerge it will be addressed in an appropriate fashion by the Minister, including, if necessary, on a statutory basis.

Mr. Stagg

I am not fully satisfied by what the Minister says. He says the Health and Safety Authority is capable of doing this job. I put it to the Minister that it is not. If the HSA, with the resources available to it, tended to its business on building sites throughout the country, it would be able to deal with about 10% of them. That is according to the figures made available by the HSA itself.

What is required here is not an overseeing body, but a hands-on policing of the regulations on a daily basis. The HSA does not have resources to do that. There are Aer Rianta by-laws but who is to police the by-laws? Is it the HSA? If so, it will not occur. What we are getting is self-regulation under an umbrella of rules by airlines in this part of the airport and it is giving rise to accidents. It was not just that a trailer was driven over somebody's foot. Another operative had his arm sucked into the engine of an aeroplane because there were airport practices which were dangerous and were against the rules, but nobody was present to ensure the rules were obeyed. A self-regulatory regime was in place to implement them. That is my concern and, while I appreciate the Minister of State's point that it will be reviewed and examined, unless massive resources are given to the Health and Safety Authority, it will not be a hands-on policing authority for safety. It reacts to situations which are reported to it. I am concerned about the response to this and perhaps the Minister of State will re-examine it. Perhaps this safety issue in the airport might be examined in the context of promised legislation to deal with air rage.

Mr. Jacob

I fully appreciate the concerns voiced by the Deputy. This has been investigated since Committee Stage. There has been a great deal of interaction between the agencies I mentioned and the Department. As I said, the fear of the duplication or confusion of roles in this issue was a major consideration. Notwithstanding that, the matter will be kept under review and I will make a point of relaying to the Minister for Public Enterprise the concerns voiced by Deputy Stagg with a view to her re-examining it in due course. I am not in a position at this point to accept the amendment.

Mr. Higgins

(Mayo): Like Deputy Stagg, rather than being reassured by the Minister of State's reply, I am concerned for exactly the same reason, which is the ability and resources of the Health and Safety Authority to do the job. Building workers in Dublin have protested at the fact that the authority has been unable to achieve compliance with best practice. People have been killed on building sites and shoddy management practices on such sites have resulted in serious injury and death. The Health and Safety Authority is now being asked, albeit in conjunction with the Irish Aviation Authority, to be the guarantor of security between airport terminals and the doors of planes. It does not have the ability to do it.

It is fine to talk of a draft memorandum but that is only a document which sets out what should happen. What actually happens can be far removed from the aspirations contained in the document. This amendment does not ask that the Minister be overly intrusive but that she, in co-operation with the commission, would be entitled to have officials from the safety section of the Department or officials from the commission conduct spot checks on the manner in which luggage and baggage is handled between terminal buildings and planes. That would be done in the interests of vigilance, safety and security.

Apart from the injuries referred to by the Minister of State, there was a high profile article, which was not denied, which stated that a major security breach had occurred at Dublin Airport. I referred to this on Committee Stage. A reporter/cameraman was able to breach security, go behind the scenes, vet aircraft unimpeded and unquestioned and enter hangars. If such a situation can arise once, it can arise again. So much for the vigilance and competence of the two agencies involved. As Deputy Stagg said, we need a guarantee of hands-on management because, as we have seen before with the Air India jet, Lockerbie and numerous other examples where unauthorised explosive and dangerous objects were put on planes, we cannot be stringent or demanding enough when it comes to airport security. I am extremely concerned, as is Deputy Stagg, about the competence, especially of the HSA.

What role do the IAA and HSA fulfil in their combined memorandum and draft document? What do they do in terms of vetting the people responsible for dealing with luggage and such items between terminals and entry points to planes?

Acting Chairman

The Minister of State has spoken for a second time and, under the rules, he is not allowed to contribute again.

Mr. Higgins

(Mayo): The Minister of State is not entitled to contribute?

Acting Chairman

Each person can speak only twice except the mover of the motion who can speak three times. However, if there were a yes/no answer to the Deputy's question, the Chair would stick its neck out.

Mr. Jacob

If it is of any assistance, I will get that information to the Deputy.

Mr. Higgins

(Mayo): That is fine. As Deputy Stagg said, given that it is intended to deal with the air rage issue, I will withdraw the amendment in anticipation of the fact that further substantial discussion can take place and assurances can be given on this issue.

Mr. Stagg

I will withdraw amendment No. 29 when we come to it.

Mr. Jacob

I thank the Deputies.

Amendment, by leave, withdrawn.

Mr. Higgins

(Mayo): I move amendment No. 4:

In page 8, to delete lines 37 and 38, and substitute the following:

"(2) Notwithstanding the generality of subsection (1), the Minister may give specific directions to the Commission on receipt of the report as provided by section 35 of this Act.”.

We had a long discussion on Committee Stage about what the Minister should or should not do by way of direction. Section 10 states:

The Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located) to the Commission as he or she considers appropriate to be followed by the Commission in the exercise of its functions.

My amendment inserts a new subsection (2) which states:

Notwithstanding the generality of subsection (1), the Minister may give specific directions to the Commission on receipt of the report as provided by section 35 of this Act.

We are responding to the concerns of the Shannon Airport group. It, like us, is very conscious of the central role played by Shannon Airport as the fulcrum for development in the south-west. Shannon Airport, the Shannon Free Area Development Company and the integrated structure which has been built around the airport has been hugely important in the growth and success of the economy of the south-west region. Without it, it would not have happened. That is the reason we ask the Minister of State, in the interest of the region and in the extended national interest and notwithstanding the generality of the spirit of subsection (1), that the Minister be empowered to give specific directions to the commission on receipt of the report provided for in section 35.

Mr. Jacob

This was discussed on Committee Stage and the Minister explained that she has no function as regards the price cap decision. Therefore, it is not appropriate to address the matter of ministerial directions to the commission on foot of the report.

Amendment, by leave, withdrawn.

Mr. Higgins

(Mayo): I move amendment No. 5:

In page 8, between lines 38 and 39, to insert the following:

"(3) In giving general policy directions provided for under subsection (1), the Minister shall have regard to the following policy objectives:

(a)to foster a strong and competitive Irish airline industry by providing enough airport capacity where it is needed;

(b)to make the best use of existing facilities and provide new capacity only when this is economically justified;

(c)to ensure that all Irish airports continue to maintain the highest standards of safety in accordance with internationally accepted rules and standards.

(4) The Commission shall comply with any direction given under subsections (1) and (2).”.

What I am attempting to do, in the spirit of the Bill, is set out a mission statement outlining what ought to be considered the commendable objectives of the commission. In other words, in giving directions under subsection (1), under which he or she has the power to give general policy directions, the Minister should have regard to the fol lowing worthwhile objectives, aims, benchmarks and standards: to foster a strong and competitive airline industry; to make the best use of existing facilities and provide new capacity subject to the criterion or condition that it is economically justified; and to ensure all airports continue to maintain the highest possible standards of safety in accordance with internationally accepted rules and standards.

Mr. Stagg

I tabled a similar amendment on Committee Stage. The Minister of State has very persuasive officials as I was persuaded that the matter was adequately dealt with elsewhere in the Bill and that there was no necessity to make the amendment. As a consequence, I withdrew my amendment.

Mr. Jacob

The amendment purports to insert in primary legislation a set of policy parameters which would govern policy directions given by the Minister. The purpose of the provision in the Bill is to empower the relevant Minister to give directions, as appropriate, to the commission if and when the need arises. The requirements of the aviation sector – any sector – can change rapidly and significantly and it is important that there is sufficient scope for a Minister to respond in the appropriate way. It is considered that it would not be appropriate at this juncture to seek to cite the issues on which these policy directions could be given. The whole purpose and value of the section are to keep the nature of the residual power general so as to properly address, at the relevant time, the nature and scope of the policy direction to be given.

Mr. Higgins

(Mayo): What I am attempting to insert in the Bill is a mission statement outlining what ought to be considered desirable aims and objectives, which are of a very general nature. Such matters as statistics, for example, are not specified. Part and parcel of the remit of the commission should be to foster a strong and competitive airline industry by providing enough airport capacity. That ought to be a general statement of intent. Providing enough airport capacity is vital and, given current growth rates, in the best interests of the nation.

In relation to existing terminal facilities at Dublin Airport, Aer Rianta got it dramatically wrong. It stated that passenger numbers would reach 14 million by 2005, but this figure was reached on 31 December 2000. There is ongoing chaos, particularly at peak periods, although I accept that there are peaks, troughs and valleys. Existing car parking facilities are hopelessly inadequate. Aer Rianta has, as a consequence, revised its figures. It is now talking about a figure of 30 million passengers in 15 years' time, but this appears to be an off-the-head estimate. Apart from the influx from outside, it should be borne in mind that one third of the population passes through the airport each year.

What I am attempting to do, therefore, is set out a clear mission statement to foster a strong and competitive airline industry by ensuring there is enough airport space; to make the best use of existing facilities and provide new capacity – the Department of Finance would agree with this – where this is economically justified, and to ensure all airports aspire to and achieve the highest possible international standards. It could hardly be more general in setting out laudable aspirations and objectives which should be the norm for the airline industry and aviation policy.

Amendment put and declared lost.

Acting Chairman

We now proceed to amendment No. 6. Amendment No. 7 is related. Is it agreed that amendments Nos. 6 and 7 be taken together? Agreed.

Mr. Jacob

I move amendment No. 6:

In page 10, to delete lines 16 to 18.

This amendment was accepted on Committee Stage, even though sections 17 and 18 already addressed the issue of the disclosure of interests. The financial limits in the Bill reflect those in the Ethics in Public Office Act. Similar to the FOI legislation, it is not the function of individual Departments to declare bodies or positions in the public service are amenable to the Act. The correct procedure is for the Department of Finance to list by way of statutory instrument, in discussion with Departments, the appropriate bodies to be added to the list. The Department of Finance has confirmed that it will be drafting a new statutory instrument later this year. The matter can be addressed at that stage. By virtue of the amendment, I assume Deputy Higgins will not pursue amendment No. 7.

Mr. Higgins

(Mayo): The reason I have tabled amendment No. 7 is that it is important that the individuals involved are brought within the scope of the Ethics in Public Office Act, 1995. The investigation of public affairs has, unfortunately, moved to a new gear. Until recently the emphasis and focus were on politicians. Now public officials are coming under scrutiny in terms of their misdemeanours and obvious conflicts of interest, as a result of which people have had to resign. As a consequence, we cannot be stringent or demanding enough in applying the exact same standards that apply to those in the political sphere to those involved in handling sensitive commercial information or decision-making. Best practice and best standards should apply across the board.

Mr. Jacob

I have nothing further to add.

Amendment agreed to.

Amendment No. 7 not moved.

Acting Chairman

We now proceed to amendment No. 8. Amendment No. 9 is an alternative. Is it agreed that amendments Nos. 8 and 9 be taken together? Agreed.

Mr. Higgins

(Mayo): I move amendment No. 8:

In page 14, to delete lines 1 to 3, and substitute the following:

"(2) The penalties for contravening this Act shall be as per section 7 of the Air Navigation and Transport (Amendment) Act, 1998.".

This amendment is to section 19 which deals with the prohibition on unauthorised disclosure of information.

Section 19 states:

(1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a commissioner, member of the staff of, or an adviser or consultant to, or as an authorised officer of, the Commission, unless he or she is duly authorised by the Commission to do so.

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

I was briefed by Aer Rianta, the airport authority, on this section. Aer Rianta is extremely concerned that the penalty is inadequate in the context of what could be gained by an individual from the disclosure of confidential information. I agree with the suggestion put to me that there is a considerable need to increase the penalty. I welcome the Minister's amendment which increases the penalty by providing for the option of a prison sentence not exceeding six months but there is no valid reason the same penalty which applies under the Air Navigation and Transport (Amendment) Act, 1998, cannot apply under this legislation. The penalty is too low to act as a deterrent given the serious business implications of any contravention of the section. That is the reason section 7 of the Air Navigation and Transport (Amendment) Act, 1998, should apply, which provides for a penalty not exceeding £100,000 similar to any financial sanction in legislation. The penalty could be £5,000 depending on the gravity of the misdemeanour involved. I will press the amendment.

Mr. Jacob

The penalty for an offence under section 19 was as per advice from the Attorney General's office and did not contain any custodial measures. We, however, again asked the AG's office if this was still its position and it has been agreed to add a custodial sentence of six months to the summary fine. This measure reflects the fact that the offence is of a summary nature.

With regard to amendment No. 9, given that a custodial sentence was provided for in respect of this offence in earlier Acts establishing regulatory offices, we have included a six month custodial sentence.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Jacob

I move amendment No. 9:

In page 14, line 3, after "£1,500" to insert "or to imprisonment for a term not exceeding 6 months, or to both".

Amendment agreed to.

Mr. Jacob

I move amendment No. 10:

In page 15, line 47, to delete "may" and substitute "shall".

We made the provision mandatory to put beyond doubt that the commission is required to produce regulations outlining the manner and basis of the levy.

Amendment agreed to.

Mr. Higgins

(Mayo): I move amendment No. 11:

In page 16, line 4, after "levy." to insert "In order to render the costs of regulations transparent to all users, such part of the levy as is imposed on an airport authority shall be an incremental and identified sum which shall be charged in addition to the airport charges and shall be deemed to be approved by the Commission.".

Section 23, which relates to the levy that may be imposed in regard to the running costs of the commission, states:

(1) For the purpose of meeting expenses properly incurred by the Commission in the discharge of the functions of this Act, the Commission may make regulations imposing a levy ("levy"), to meet but not to exceed the estimated operating costs and expenses of the Commission, to be paid each year beginning with such year as specified in the regulations on such classes of undertakings as may be specified by the Commission in the regulations.

(2) Levy shall be payable to the Commission at such time and at such rates as may be prescribed in regulations by the Commission and different rates in respect of different classes of undertaking liable to pay levy.

I propose to insert:

"In order to render the costs of regulations transparent to all users, such part of the levy as is imposed on an airport authority shall be an incremental and identified sum which shall be charged in addition to the airport charges and shall be deemed to be approved by the Commission."

The amendment relates to transparency.

On Committee Stage I stated the amendment was necessary to ensure transparency and it is entirely appropriate that the commission which is set up to regulate an undertaking with market power should be subject to the discipline of transparency. The amendment is also required to ensure the levy imposed by the commission for aviation regulation is appropriately distributed. The cost associated with economic regulation is a legitimate, externally imposed expense over which the airport authority has absolutely no discretion and, therefore, it is appropriate that it be passed on to the airport authority and the users in a transparent, up front manner. How the levy has arisen should be broken down in detail. This is in keeping with best practice in other jurisdictions in which independent economic regulation pertains.

Mr. Jacob

The Deputy's concerns regarding transparency are addressed by virtue of the fact that the levy and the basis and manner of its collection will be announced by way of regulations. The cost of the levy, as with all other costs, will be part of the cost structure, which the commission will examine in respect of Aer Rianta and the Irish Aviation Authority. There appeared to be misunderstanding on Committee Stage in regard to how the levy might be imposed. For example, there was a view that different percentages of Aer Rianta's revenue from car parking or retail outlets would be surrendered to fund the costs of the commission. It will be a matter for the commission after appropriate analysis to decide the basis of the levy. However, if it were to follow the UK example it would base the levy on cost per passenger.

Mr. Stagg

The Minister was very clear on Committee Stage that she was not desirous of a scenario where the commission could levy the activities of the airport authority where it was successfully operating outside the State because its profits in this area could all be used up or negatived by the proposal. The Minister took that very much on board.

Mr. Higgins

(Mayo): My recollection is the same.

Mr. Jacob

I do not wish to go against the sentiments of my senior colleague. My advice is, as I indicated, not to accept this amendment.

Amendment put and declared lost.

Acting Chairman (Mr. Briscoe)

Amendment No. 15 is related to amendment No. 12. Amendments Nos. 12 and 15 may be discussed together. Is that agreed? Agreed.

Mr. Jacob

I move amendment No. 12:

In page 18, line 22, to delete "12" and substitute "6".

The Bill provides in section 32(2) that the commission has a timeframe of up to 12 months to produce a determination on the price cap. This was an appropriate measure when it was included. However, further consideration has been given to the implications for the industry if a price cap were not determined for a further year. Given the long period of time since there was an increase in the charges in 1987 and given that due to delays in the legislative process an interim commission has been in place since autumn 1999, albeit informally, and has engaged in familiarising itself with the relevant issues, it has been decided that it would be more appropriate at this juncture to reduce the timeframe to six months.

Amendment No. 15 arises by virtue of amendment No. 12 and is designed to reflect the fact that the timeframe for the price cap determination is reduced to six months. We are, therefore, reducing from two months to one month the consultation period for industry views.

Mr. Stagg

I support the amendment. We were conscious when we discussed the issue on Committee Stage that the commissioner had been appointed without legal authority. I am not saying his appointment was ultra vires but it was unusual. He was appointed and was paid for a long period before he was entitled to function legally. Perhaps we will secure some retrospection from the commissioner by shortening the period and getting him to give decisions in a shorter timeframe.

Amendment agreed to.

Mr. Stagg

I move amendment No. 13:

In page 18, line 34, to delete "may" and substitute "shall".

I understood the Minister intended to accept this amendment. The words "may be" can also be understood to permit "may not". The word "shall" is a more definitive word and I understood this word was being accepted by the Minister.

Mr. Jacob

The proposed amendment would have the effect of providing for the regulation of Aer Rianta as a group as opposed to permitting the commission the discretion to evaluate whether to regulate the three airports separately or as a group. The rationale supporting the provision in the Bill was that it is essential from the standpoint of good regulation, now that we are committed to independent regulation, that the regulator be given sufficient flexibility to address the charges issue as his examination of the situation dictates. It would be pre-emptive to fetter the commission's discretion in advance of the establishment of the facts. Only proper economic analysis will reveal the basis on which the charges should be regulated.

Mr. Stagg

That is the argument the Minister made on Committee Stage. She subsequently withdrew it on the basis of her acceptance of the threat it poses to Cork and Shannon. While that might be more a perception than reality, the Minister was acutely aware that that was the case. Those airports saw this as a threat that they would be isolated and dealt with separately and that an unsympathetic Dublin based regulatory system would deal them a cold hand rather than a helping hand. The note I have from the Committee Stage debate was that the Minister would deal with this on Report Stage.

We discussed it with the officials in the meantime and we were given the original line but I expected this amendment to be accepted today.

Mr. Jacob

I have nothing further to add.

Question, "That the word proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Higgins

(Mayo): I move amendment No. 14:

In page 18, line 39, after "for a" to insert "minimum".

This relates to decisions or determinations made in respect of airport charges. The provision states that the determination shall "be in force for a period of 5 years". In other words, it should be mandatory that it operate for a minimum of five years and "come into operation not later than 30 days after the making of such a determination". We discussed this at length on Committee Stage. There must be certainty that the charge will operate within a specific guaranteed period rather than permit the discretion to vary it at some stage within the five year period, as could happen.

Mr. Jacob

To proceed with this amendment would lead to uncertainty for the industry. Certainty is one of the primary features regulation is designed to achieve. If an airport authority and its customers do not know the duration of a price cap, it would be impossible for them to plan or budget in the normal way. It would, therefore, be extremely unhelpful for all concerned to leave the duration open-ended.

Mr. Higgins

(Mayo): I am not sure we are interpreting this in the same way. My interpretation is that the Minister is doing the opposite. This amendment seeks to ensure that a determination shall be in force for a minimum period of five years. We are trying to secure certainty and to ensure there would be no discretion to change the terms of the determination within the five year period.

Amendment put and declared lost.

Mr. Jacob

I move amendment No. 15:

In page 19, line 12, to delete "2 months" and substitute "one month".

Amendment agreed to.

Acting Chairman

Amendment No. 17 is an alternative to No. 16 and amendment No. 18 is related. The amendments may be discussed together by agreement. Is that agreed? Agreed.

Mr. Jacob

I move amendment No. 16:

In page 19, to delete lines 42 and 43 and substitute the following:

"(i) at its own initiative, or".

These amendments clarify the position whereby the criterion of "substantial grounds" must exist before a review is initiated either by the commission or by request.

Mr. Stagg

I support the Minister's proposal which effectively does the same job we were seeking to do. We were concerned that there would be continuous assessment and that a man, whose first name is Michael, would request the reassessment of charges on a daily basis. He would be entitled to get that under the Act as it stands.

Amendment agreed to.

Amendment No. 17 not moved.

Mr. Jacob

I move amendment No. 18:

In page 20, line 1, before "review" to insert "if it considers that there are substantial grounds for so doing,".

Amendment agreed to.

Mr. Higgins

(Mayo): I move amendment No. 19:

In page 20, between lines 10 and 11, to insert the following:

"33.–The cost of meeting international obligations shall be included when assessing and setting the level of airport charges.".

I am seeking to insert this amendment to state that the cost of meeting international obligations shall be included when assessing and setting the level of airport charges. I am not aware whether the Minister or the Department have received representations from Aer Rianta, which is seeking this provision. Effectively, Aer Rianta is saying that airport authorities have a number of public policy obligations at a national level, for example, the provision of VIP facilities, costs associated with ceremonial functions, etc., which in some cases are additional to the requirements to facilitate the current and prospective needs of those for whom airport charges are levied. Therefore, it would be appropriate that public policy expectations and obligations would be considered by the commission in formulating a determination on airport charges.

Mr. Jacob

This amendment was withdrawn on Committee Stage. The amendment is not required as paragraph (j) of section 33 already includes this provision.

Amendment, by leave, withdrawn.

Mr. Stagg

I move amendment No. 20:

In page 20, between lines 18 and 19, to insert the following:

"(b) environmental protection and noise pollution reduction and the desirability of structuring charges so as to reduce noise,”.

The objective here is to create a mechanism whereby charges can be used as a tool to encourage positive environmental activity at the airport. Only yesterday, I received a summary of a report on airport charges by the Director General of Civil Aviation in the Netherlands. The report states that the lowest airport charges are found in southern Europe and Ireland, a fact which was immediately rubbished by the aforementioned Michael who rubbishes every positive aspect of Aer Rianta. The report also makes the point that the reason charges were higher in other European airports was that different night charges applied due to the environmental effect of night flights on people and special charges applied to planes with higher noise pollution emissions. I was seeking through this amendment to introduce a similar regime here without being prescriptive in regard to what charges should apply as that would be a matter for the commission.

Mr. Jacob

The EU is attempting to make further advances on the issue of noise and we are participating in this initiative through the transport councils. On the specific issue of lower charges for quiet aircraft, the policy internationally has been to leave this matter to the airport authorities as it affects their revenue generating powers. This is the case in the UK and throughout Europe. At present, we could only ask Aer Rianta to consider a reduced charge in respect of less noisy aircraft. If it were to implement such an initiative, that would require compliance with the principles of transparency and non-discrimination and would have to accord with all EU measures on the matter. We can discuss the matter with Aer Rianta and consider the available options.

Mr. Stagg

I welcome the Minister's positive comments. I would like the clear message to go out from here that all sides of the House would like to see this type of environmental measure introduced. I presume Aer Rianta, an authority owned by the Minister on behalf of the people, would take notice of such a message. I am concerned by the Minister's comment that any measures in this area would have to be non-discriminatory. I would like to see negative discrimination against dirty operators and positive discrimination towards clean operators, as applies throughout Europe. Perhaps we have gone as far as we can go on this issue but I hope the Department will convey the sentiments expressed here today to Aer Rianta which is doubtless keeping a watchful eye on proceedings.

Mr. Jacob

I am sure the regime outlined by the Deputy is one to which we would all aspire.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment Nos. 21 and 22 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Mr. Stagg

I move amendment No. 21:

In page 20, line 27, after "other" to insert "airport".

The amendment relates to section 33(e) which refers to the level of income of the airport authority from airport charges at the airport and other revenue earned by the authority at the regulated airports. Section 33(b) reads: “a reasonable rate of return on capital employed in that investment, in the context of the sustainable and profitable operation of the airport”. The amendment seeks the insertion of “airport” after “other” in line 27 to make the paragraph read “the level of income of the airport authority from airport charges at the airport and other airport revenue earned by the authority at the regulated airports”. We were trying, in this instance again, to ensure that incomes from other commercial activities by the airport authority would not be taken into account in assessing what it does. The Great Southern Hotels group is probably the best example. If it is profitable, should the amount of income available to Aer Rianta for running the airport be reduced as its hotels are profitable in, say, Kerry or wherever they might be? That is the point we make. If we put in the word “airport” there it might cover that.

Mr. Jacob

A basic ethos in the drafting of this legislation has been to provide the commission with a sufficient level of flexibility to address all the salient issues before arriving at its decisions. It would be an imprudent measure to seek to constrain its discretion in respect of the totality of Aer Rianta's revenue in advance of an examination of all matters necessary to determine a price cap decision.

Amendment No. 22 is a critical one which provides that the commission is entitled to have regard to all the income of the airport authority, not just that arising from the airports themselves but from other external sources, for example, Aer Rianta International.

When the amendment adding the words "at the regulated airports" was accepted by the Minister for Public Enterprise on Committee Stage she considered that it simply meant at airports amenable to regulation, that is, those having over one million passengers annually. However, as its effect is to exclude the ability of the commission to have regard to all sources of revenue, it is important to address this issue in this amendment.

Mr. Stagg

I am worried about the Minister for State's reply as we got a different response from the Minister on Committee Stage.

Mr. Jacob

I understand that.

Mr. Stagg

The Minister pointed out clearly that if we reduce the charges required for running Dublin Airport on the basis of the profitability of Aer Rianta outside Dublin Airport, we will simply put more money into the pockets of people like Ryanair, who are doing very well at Dublin Airport already. The profits of the taxpayers' company, Aer Rianta, will be used to reduce the charges required to run the airport. The Minister accepted that and made that argument on Committee Stage. I am, therefore, amazed that it is being rolled back now. I ask that the original decision made on Committee Stage would stand. It is not acceptable that on Report Stage, when there is not an opportunity to revisit a Bill that has gone through the Seanad, we are told this change will be rolled back.

The Minister accepted this point on Committee Stage when we made the argument. She supported and fortified this argument by making the point that moneys made, particularly by Aer Rianta International, would now be a waste of effort because, for every pound made in Moscow, Ryanair, Aer Lingus and other users of Dublin Airport – it is not fair to single out Ryanair – will get a pound less on their charges.

What is the object of the excercise of Aer Rianta being successful internationally? Is it to have a free airport? If so, let us say it is to have a free airport with no charges, subvented by the other commercial activity of Aer Rianta outside the airport. That is crazy.

The Minister of State has only one more short bite at this and I ask that he seriously consider what he is doing here.

Mr. Jacob

Deputy Stagg is correct when he states that the Minister accepted this point on Committee Stage. I am advised, however, that that was done on the basis that she thought she understood that it simply meant at airports amenable to regulation—

Mr. Stagg

Yes.

Mr. Jacob

—that is, those having one million passengers annually. I understand the Minister is now satisfied that the discretion to examine all revenue be given to the commission.

Mr. Stagg

I am disappointed with this. We all understood it was regulated airports about which we spoke. The effect of this, however, will be that every pound Aer Rianta makes in the Great Southern Hotels group in its efforts to raise rev enue for the Irish economy abroad will be transferred, by virtue of this decision, directly into the pockets of the foreign airlines that will operate in and out of Dublin and private operators who will be using the airport. That is a bad decision and not the Minister's intention. It certainly was not her intention the last day and I do not know what has happened since to make her change her mind.

Amendment put and declared lost.

Acting Chairman (Mr. Browne,

Carlow-Kilkenny): Amendment No. 22 was discussed with amendment No. 21.

Mr. Jacob

I move amendment No. 22.

In page 20, line 28, after "airports" to insert "or elsewhere".

Mr. Stagg

That makes it worse.

Amendment put and declared carried.

Acting Chairman

Amendment No. 23 in the name of Deputy Higgins is ruled out of order.

Mr. Higgins

(Mayo): What is new? I was going to withdraw it anyway.

Amendment No. 23 not moved.

Acting Chairman

Amendment No. 24 in the name of Deputy Higgins is not out of order.

Mr. Higgins

(Mayo): I move amendment No. 24.

In page 20, between lines 40 and 41, to insert the following:

"(k)the contribution of the airport to balanced regional development,

(l)the provision of adequate and proper facilities for disabled passengers using the airport, and

(m)the promotion and development of air traffic at airports under the aegis of the Commission.".

We are dealing with section 33 and these are the regulatory objectives in respect of airport charges. The introduction to this section states:

"In making a determination the Commission shall aim to facilitate the development and operation of cost-effective airports which meet the requirements of users and shall have due regard to–".

We are talking about the commercial interest or welfare and different elements to which the commission shall have regard, such as the level of investment in airport facilities at an airport, a reasonable rate of return on capital, the efficient and effective use of all resources and the contribution of the airport to the region in which it is located.

Other elements include the level of income of the airport authority from airport charges and other revenue earned by the authority at the regulated airports, operating and other costs incurred by the airport authority, the level and quality of services offered, the cost competitiveness and operational efficiency of airport services at the airport with respect to best international practice, imposing the minimum restrictions on the airport authority consistent with the functions of the commission and such national and international obligations as are relevant to its functions. I seek to insert three sub-paragraphs which make sense and for which we argued on Committee Stage, that is, sub-paragraphs (k), (l) and (m). This would mean that, in other words, the regulating commission or commissioner would have regard, additionally, to "the contribution of the airport to balanced regional development". We have argued that at length already but from the point of view of the airport itself and its role in the region.

As we have had the contribution of the airport to balanced regional development, I am particularly worried about the provision of adequate and proper facilities for disabled passengers using the airport. There is a marked contrast between the level of services available to people with disabilities, particularly physical disabilities, at our airports compared with international airports. As soon as a disabled person arrives at an airport in any major capital city, be it London, Amsterdam or elsewhere, an automated buggy is provided to transport him or her around the airport. That is not the case here. Recently we had the appalling case of Ryanair charging an additional amount for a disabled person to use a wheelchair. From the point of view of best practice, adequate and proper facilities for disabled passengers should be provided at airports. Aer Rianta is making colossal profits. We might question the level of service provided at times but commercially it is an extremely profitable entity. It has an obligation to provide the best service possible for people, particularly for those who use wheelchairs.

I recently convened the Dublin Airport users forum in the Great Southern Hotel at the airport. Some of the organisations which represent people with disabilities were present and were vocal regarding the lack of facilities for such people at airports. The commission should have due regard to this. In making his or her determination the regulator should have regard to the promotion and development of air traffic at airports under the aegis of the commission, which is the oxygen necessary for airports to operate.

Mr. Jacob

What is sought in the amendment is not appropriate for inclusion as regulatory objectives. As regards paragraph (k), this is already catered for in this section and in section 10. As regards paragraph (l), this type of provision is catered for in section 33 in that Aer Rianta is required to invest in whatever facilities are necessary for the users of the airport. This means all users, including the disabled. It would not be appropriate to single out any category of passenger as being distinct from the needs of other users. As regards the disabled, Aer Rianta possesses wide-ranging powers to make by-laws at the State airports and has already adopted a by-law, S.I. 469 of 1999, specifically requiring all airlines, service providers and other agencies to do all that is reasonable to accommodate the needs of persons with a disability by providing special treatment or facilities if, without such special treatment or facilities, it would be impossible or unduly difficult for these persons to avail of the service.

On the Deputy's third point, paragraph (m), this objective is the responsibility of the airport authority and is cited as such in Aer Rianta's shareholder mandate in the Department's statement of strategy.

Mr. Higgins

(Mayo): I appreciate what the Minister said regarding the obligations imposed on Aer Rianta and take the point that investment and development is enshrined in the section, but I am at a loss to know why the spirit of the other two sections cannot be embraced as elements that would be taken into consideration in making a determination. Those representing the Federation of People with Disabilities are extremely critical of this. There can be difficulties on aircraft but I do not understand why, with the massive expansion, development and huge investment of resources in upgrading facilities within the airport complex, we would not set down this as something to be taken into consideration in making a determination. Similarly in regard to the commercial promotion of the airport, I do not see why the promotion of traffic should not be set down as an element to be taken into consideration particularly when we consider that an airport is all about generating income based on the throughput of aircraft traffic and freight.

Amendment, by leave, withdrawn.

Mr. Jacob

I move amendment No. 25:

In page 21, line 4, after "charges" to insert "that may be imposed by the Authority".

This is a technical, drafting amendment to clarify that the charges referred to are those imposed by the IAA. It is in line with the provisions of section 32(2).

Amendment agreed to.

Mr. Jacob

I move amendment No. 26:

In page 22, line 7, to delete "or" and substitute "and".

This amendment was tabled as a consequence of accepting an amendment to section 32(12) on Committee Stage. It provides that in respect of the report on the IAA price cap the commission can put a notice in the newspapers and publish it by any other means.

Mr. Stagg

I tabled an amendment on Committee Stage to that effect and I appreciate the Minister accepting it in the interim. It is not a drafting amendment but a critically important difference.

Amendment agreed to.

Acting Chairman

Amendment No. 27. Amendment No. 28 is related and both may be taken together by agreement. Is that agreed? Agreed.

Mr. Jacob

I move amendment No. 27:

In page 22, to delete lines 19 and 20 and substitute the following:

"(i) at its own initiative, or".

These amendments have the same effect as amendments Nos. 16 and 18. They clarify in respect of the IAA the position whereby the criterion of substantial grounds must exist before a review is initiated in both situations, that is at the initiative of the commission or by request.

Amendment agreed to.

Mr. Jacob

I move amendment No. 28:

In page 22, line 23, before "review" to insert "if it considers that there are substantial grounds for so doing,".

Amendment agreed to.

Mr. Stagg

I move amendment No. 29:

In page 23, between lines 6 and 7, to insert the following:

"37.–Section 14 of the Irish Aviation Authority Act, 1993, is hereby amended in subsection (1)(d) by the insertion after ‘aerodromes,' of ‘and to ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies to ensure safety of operations'.”.

Amendment put and declared lost.

Mr. Higgins

(Mayo): I move amendment No. 30:

In page 23, between lines 6 and 7, to insert the following:

"37.–The Irish Aviation Authority Act, 1993, is hereby amended:

(a) in section 14(1)(c), by the insertion of–

‘to ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies in their related field to ensure safety of operations,' after ‘services,',

and

(b) in section 43(1)(a), by the insertion of ‘and section 33 of the Aviation Regulation Act, 2001' after ‘Subject to subsection (3)'.".

Amendment put and declared lost.

Acting Chairman

Amendment No. 31. Amendments Nos. 32 and 35 are related. Amendment No. 33 is an alternative and No. 34 is consequential. Amendments Nos. 31 to 35, inclusive, may be taken together by agreement. Is that agreed? Agreed.

Mr. Higgins

(Mayo): I move amendment No. 31:

In page 23, between lines 9 and 10, to insert the following:

"38.–An airport authority or an airport user shall be entitled to appeal to the High Court against any determination or decision of the Commission, or any party thereof, on a point of law or fact.".

We argued this on Committee Stage and there was a major conflict on the role, remit and powers of the commission and where we should draw the line. The right of appeal was also raised. At present there is no appeal mechanism other than by way of judicial review which is very limited in terms of its scope. One can challenge the legality of something only on the basis of technical details. In other words, one can go to the courts only on the basis of there being a technical difficulty or irregularity regarding the manner in which the decision was made. Because it is such a vital economic interest, in the event of the commission getting it wrong or there being a question mark over the determination or the decision made, there should be some appeal mechanism. It should allow people the right to have an argument heard so that a decision can be vetted and the matter decided on a second time. In other words, we are giving absolute decision-making powers in relation to a huge economic interest to one particular body, the commission. We are questioning whether that is wise and that is the reason I tabled this amendment. I argued on Committee Stage – I do not want to recite the arguments again – that an airport authority or user shall be entitled to appeal to the High Court against any determination or decision of the commission, or any party thereof, on a point of law or fact. In other words, if they believe they have a legitimate case or claim, they would be entitled to go before the courts to have the case heard a second time and decided upon.

Mr. Jacob

The issue in relation to amendment No. 31 was discussed at length in committee both in the Dáil and the Seanad. The amendment provides for a de novo appeal on the merits of the case. This would make the court, in effect, the regulator. The Attorney General's office advised from the outset that it would not be appropriate to place the court in the position of substituting its decision for that of the regulator. We have adequately provided for judicial review measures, which, according to the Attorney General, is the appropriate course in the case of decisions by public bodies, that is, the courts can decide if the decision taken by the public body is reasonable and in accordance with its powers under the legislation or whether it is ultra vires or biased etc. It is fair to say that the court would not be in a position to have the sectoral economic expertise to make the decision. To add to the judicial review measures, we have now provided for an appeal mechanism by way of an independent panel. That is contained in section 40.

Amendment No. 32 appears to seek to provide for both an appeal to the courts on the merits of the case in addition to a judicial review. I have outlined the position on this issue in relation to amendment No. 31. In any event, it would appear that this amendment only addresses the issue of allowing Aer Rianta or any airline to seek a judicial review.

With regard to amendment No. 33, the position here is as in the previous amendments on the subject in that we are providing for an independent appeal. In relation to the final amendment, having considered the many contributions made both in the Seanad and the Dáil—

Mr. Higgins

(Mayo): May I ask the Minister to elaborate on the independent appeal? He said he was allowing for an independent appeal against a commission determination.

Mr. Stagg

Before the Minister replies, amendment No. 33 is in my name. I could not catch the Chair's eye before the Minister got in.

Mr. Jacob

I apologise for that. The Deputy should have got in.

Mr. Stagg

It is not the Minister's fault. This is the most difficult area in the matter of setting up a regulator. We have dealt with who he or she should be accountable to, and we have difficulty with that because it creates a democratic deficit in that we are transferring authority to quangos outside this House without having a clear line of how they will report back to us. That created difficulty. This is the other area about appeals. If we set up an authority to do a job without setting up some form of appeal mechanism against the decisions they make, inevitably the courts would become the regulators. Because of the money that is involved here, the decisions will end up before the courts, if not to change the decision to delay it, and a decision can be delayed for a long time by a competitor going through the courts system.

I read the panel appeal proposal a number of times and I am not clear how it will work. I did not have an opportunity to get legal people to examine it for me. Perhaps the Minister has had an opportunity to do that so perhaps he will tell us in plain language how this will work without dragging in the courts on every occasion. The judicial review facility will be there no matter what we do, and rightly so, but that is a very limited format. It only deals with whether decisions were made correctly, not about the actual content of the decision. We cannot exclude that but I am not sure how this will work and I would like the Minister to elaborate on it. I will withdraw my amendment in favour of some system but we have to get this matter on the agenda by saying the High Court will be the appeal mechanism.

Mr. Jacob

I think that is called giving way.

Mr. Stagg

Giving way at length.

Mr. Jacob

I remember coming across that in an earlier life. The Deputy is obviously concerned about how this aspect will function without involving the courts in every case. I am not allowed to get on my feet again. Deputy Higgins intervened and I missed what he—

Mr. Higgins

(Mayo): The same point.

Acting Chairman

The Minister is only making his first contribution. He has the right to reply.

Mr. Jacob

The position is as I indicated earlier, that is, that Deputy Higgins's amendment No. 31 would in effect make the court the regulator. I indicated that the Attorney General's office advised from the outset that it would not be appropriate to place the court in the position of substituting its decision for the regulator. There is provision for judicial review measures and according to the Attorney General, that is the appropriate course. In the case of decisions by public bodies, the courts can decide if the decision taken by the public body is reasonable. Is that the kernel of the Deputies' concern?

Mr. Higgins

(Mayo): Yes. We would like the Minister to spell out how the panel will operate.

Mr. Jacob

The airport authority can request the Minister to set up an appeal panel to consider price determination under sections 32(2) and 35(2). The system is based on the appointment of the electricity regulator and will be provided for in the ODTR in the future. The three independent persons appointed by the Minister will have expertise in the areas of aviation, economics, etc. They will either confirm the commission's decision or refer it back to it for further consideration if it believes it did not have sufficient regard to the provisions of sections 33 and 36. I hope that clarifies the position.

Mr. Higgins

(Mayo): It does. I welcome the fact that these three independent persons will have due regard to the various interests and arguments made and will be able to refer the matter back to the commission for further consideration if they believe it did not take into consideration elements or aspects which should be taken into consideration. It was never our intention to trespass unduly on the determination of the commission but we believed there should be some other court of appeal, so to speak. We were not terribly enamoured of the idea of going to court, which could end up as the regulator. We accept the argument that there is little point in setting up a commission if its decisions will be questioned in the courts on an ongoing basis. Everything would be held up as the courts are tedious and their deliberations protracted. There is also the cost factor, which is considerable. The people who would invariably have recourse to the courts are the fat cats, the airlines. The smaller interest groups, the users, would not have the resources to go to court and take on a legal challenge.

The Minister has come a fair bit of the road with us in terms of setting up the panel of three independent persons. It is a considerable advance on the initial provision whereby the decision-making process was left entirely to the commission with no right of recourse or redress other than by way of a judicial review, which is limited in terms of its scope and possibility.

Mr. Stagg

The Minister is breaking new ground with this proposal. This has not been done in the case of the other regulators. I welcome the principle behind the proposal as I was worried – I think this was shared by Members on all sides of the House – about transferring the power given to us by the electorate to an outside body. The regulator in this and other cases would have had absolute authority in making decisions and the only recourse against decisions was to go to court, which is most undesirable. There should be a right of appeal in such situations and I welcome the Minister's proposal. I withdraw my amendment which was tabled simply so that the matter would be debated.

Mr. Jacob

I am glad that we are at ad idem on this new provision.

Amendment, by leave, withdrawn.

Amendments Nos. 32 to 34, inclusive, agreed to.

Mr. Jacob

I move amendment No. 35:

In page 24, between lines 18 and 19, to insert the following:

"Appeal panel.

40.–(1)This section applies to–

(a)an airport authority to whom a determination under section 32(2) applies,

(f2>b)the Irish Aviation Authority in respect of a determination under section 35(2),

(c)an airport user, being any person responsible for the carriage of passengers, mail or freight by air to or from an airport, in respect of a determination under section 32(2) or 35(2).

(2) The Minister shall, upon a request in writing from a person to whom this section applies who is aggrieved by a determination under section 32(2) or 35(2), establish a panel (‘appeal panel') to consider an appeal by that person against the determination.

(3) An appeal panel shall consist of at least 3 but not more than 5 persons appointed by the Minister, one of whom shall be designated by the Minister to be the chairperson of the appeal panel.

(4) An appeal panel shall determine its own procedure.

(5) An appeal panel shall consider the determination and, not later than 2 months from the date of its establishment, may confirm the determination or, if it considers that in relation to the provisions of section 33 or 36, there are sufficient grounds for doing so, refer the decision in relation to the determination back to the Commission for review.

(6) An appeal panel shall notify the person who made the request under subsection (2) of its decision under subsection (5).(7) An appeal panel, having considered a determination under section 32(2) or 35(2) and made a decision in respect of it under subsection (5) and having notified under subsection (6) the person who made the request under subsection (2) of its decision, shall stand dissolved.

(8) The Commission, when it has received a referral under subsection (5) from an appeal panel, shall, within one month of receipt of the referral, either affirm or vary its original determination and notify the person who made the request under subsection (2) of the reasons for its decision.

(9) A notice of a decision made under subsection (8) shall be given by publishing the notice in a daily newspaper published and circulating in the State and by such other means as the Commission may determine.”.

Amendment agreed to.

Amendment No. 36 not moved.

Mr. Stagg

I move amendment No. 37:

In page 27, to delete lines 30 and 31, and substitute the following:

"subsection:

(3A)(a)A person who contravenes this section shall be liable in damages to the operator of the aircraft for any losses including the costs of diversion occasioned by such contravention.

(b)Where a person is convicted of an offence under this section the court shall order him or her to pay to the operator of the aircraft the costs if any referred to in paragraph (a) of the subsection.

(3AA)Where an aircraft lands on the territory of the".

There is a mistake in the drafting – it may be my mistake – because if lines 30 and 31 in page 27 are deleted the section will not make any sense. My amendment proposes to allow aircraft owners to take action against people who damage aeroplanes for the cost of the damage, including the cost of diverting to another airport when there is a row. I am not dealing with the issue of air rage as this will be dealt with in another Bill.

Mr. Jacob

As the Minister has explained, it would not be appropriate to use this Bill to address the issue of air rage. The Deputy has acknowledged this. Given the activities already taking place in the work programmes of ECAC and ICAO it would be pre-emptive to move unilaterally with air rage provisions. In any event, legislation dealing with airport charges is not an appropriate vehicle to address an issue as critical as aircraft passenger safety. As promised by the Minister, the air rage issue will be addressed in due course in separate legislation.

Amendment, by leave, withdrawn.

Amendment No. 38 not moved.

Bill report with amendments and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Stagg

I thank the Minister for considering our amendments to this important legislation dealing with aviation regulation. I also thank his officials for their positive and helpful attitude in assisting us to do the job we are required to do on behalf of the electorate.

We have broken new ground in this Bill, particularly in regard to the appeals mechanism. This will set an example for future regulatory legislation. It is important that we are careful in expanding the regulatory system. If we had continued the way we started – I was directly involved in introducing the first Bill – the House would be denuded of much of its authority and the combined regulators would be more powerful than the Minister and probably more powerful than a group of Ministers.

The Bill had an unusual First Stage as the main debate was about a peripheral issue, Baldonnel Airport. This gave rise to a huge public campaign to have a section removed from the Bill. Being the good politician that she is, the Minister took on board the concerns expressed and the section was removed, thereby diffusing the row. I thank the Minister for doing this.

This is good legislation, even though the Comptroller and Auditor General will probably ask the Minister why she has been paying a regulator with no authority since last May. I wish the regulator well. He has a difficult job to do and will have a few hot potatoes to handle, as well as dealing with the people who keep putting the fire under these potatoes. He will have plenty of excitement in his new regime. I wish him well and remind him that under this legislation we will monitor his activities on behalf of the people who have given us the authority to do so.

Mr. Higgins

(Mayo): I concur with the comments made by Deputy Stagg. I thank the Minister and Minister of State and their officials for the fulsome, co-operative, receptive and forthcoming manner in which they approached the debate. Some amendments were accepted on Committee Stage. That is what making legislation is about. Today's breakthrough in the context of the independent panel is groundbreaking and crucial. As it developed the Bill became much better. We have resolved the Baldonnel issue as well. The regulator can now earn his pay. He will have some very testing customers to deal with and will be put to the pin of his collar in terms of making independent, wise and judicial decisions.

Minister of State at the Department of Public Enterprise (Mr. Jacob)

The Minister for Public Enterprise, Deputy O'Rourke, had a particular personal interest in this legislation and would dearly have desired to have been here continuing to work with Deputies Stagg and Higgins at this final Stage. My colleagues opposite have put a massive amount of work into this over a long period. I thank them on behalf of the Minister for their co-operation in that regard over the various Stages of this very important legislation. For my part I thank them not only for their co-operation but for their forbearance with me who arrived as a substitute at the eleventh hour. I am grateful to Deputies Higgins and Stagg for their approach during these important latter Stages of this Bill. I particularly thank my officials for hammering into my skull in a very short time some appreciation of the important business we have just completed.

Question put and agreed to.

Acting Chairman

As the Bill is considered by virtue of Article 20.2.2º of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.

Dáil Éireann debate - Wednesday, 7 Feb 2001