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Dáil Éireann debate -
Thursday, 21 Mar 2002

Vol. 550 No. 5

Adjournment Debate Matters. - Gas (Interim) (Regulation) Bill, 2001 [ Seanad ] : Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 3:
In page 6, between lines 39 and 40, to insert the following:
"(d) by the substitution for subsection (5) of the following subsections:
‘(5) In the exercise of its functions under this Act and without prejudice to subsections (3) and (4), the Commission shall encourage and secure adequate energy supply in the interests of all users in a manner that promotes economic efficiency and gives the maximum benefit to users and in doing so shall have regard to–
(a) the need to ensure a satisfactory supply of gas and electricity for users and in particular the need to take account of the needs of rural customers, the disadvantaged and the elderly,
(b) the need to stimulate a competitive market in the provision of gas and electricity,
(c) the need to take account of the protection of the environment,
(d) the need to encourage the efficient use and production of energy,
(e) the need to encourage research and development into–
(i) methods of generating electricity energy using renewable, sustainable and alternative forms of energy and combined heat and power; and
(ii) methods of increasing efficiency in the use and production of energy;
(f) the need to require that the system operator gives priority to generating stations using renewable, sustainable or alternative energy sources when selecting generating stations,
(g) the need to cooperate with regulatory authorities in other Member States,
(h) the principles of non-discrimination (including equal access) and proportionality, and
(i) the need to impose, maintain and develop public service obligations in accordance with section 20 of the Gas (Interim) (Regulation) Act, 2002.'.”.
–(Deputy Higgins,Mayo).
Mr. Higgins(Mayo): The purpose of section 6, and the amendment which I want to attach thereto, is to set out the functions of the commission. The functions set out in the Bill, as I pointed out, are rather Spartan and extremely threadbare. Earlier I was making the point that the purpose of regulation is to stimulate a competitive market in the provision of gas and electricity, and that that has not happened. It certainly has not happened in the electricity sector, where many companies, which came in with great enthusiasm and appetite, have walked away from the market because the opening of the market simply has not happened. The experience has been the same in the telecoms sector and in the gas sector the experience has been no different.
Therefore, I am trying to expand the functions of the commission. They need to stimulate a competitive market in the provision of gas and electricity; to ensure a satisfactory supply of gas and electricity for users and in particular to take account of the needs of rural customers, the disadvantaged and the elderly; to take account of the protection of the environment; to encourage the efficient use and production of energy; and to encourage research and development into (a) methods of generating electricity energy using renewable, sustainable and alternative forms of energy and combined heat and power, and (b) methods of increasing efficiency in the use and production of energy.
There is no doubt but that there is huge potential to develop sustainable energy and we have not realised it. For example, we have not got into the wave power sector at all. It is recognised that the potential of wave power is enormous. It is available off our coastline, it is ready to be harnessed and yet it has not happened.
While there have been the AER III and AER V programmes in the area of wind energy, at the same time the Minister still has not given out the licences. We have been very slow into the field and tardy in determining the conditions. At the end of the day we do not have anything like the yield from wind power which we could have.
The development of combined heat and power has been extremely slow. This sector generates only a very small percentage of our power.
The amendment provides that the commission shall have regard to the need to require that the system operator gives priority to generating stations using renewable, sustainable or alternative energy sources when selecting generating stations, and the need to co-operate with regulatory authorities in other member states. It is important that we would work, liaise and co-ordinate with other member states. The amendment also provides that the commission shall have regard to the principles of non-discrimination, including equal access, and proportionality, which is a fundamental principle of regulation and the need to impose, maintain and develop public service obligations in accordance with section 20 of the Gas (Interim) (Regulation) Act, 2002.
The amendment has to do with how the power should be distributed and who should get the power. Yesterday many people were amazed when for the first time, other than an indication that the Corrib gas would go to Letterkenny via Ballina and Sligo, they heard an announcement to the effect that on the east-west pipeline Enfield would get the gas. I pass through Enfield twice a week and sometimes three times a week. Tullamore, Clara, Athlone, Ballinasloe and Oranmore are getting the gas. It is no coincidence that Enfield happens to be in the constituency of the Minister for the Environment and Local Government. It is no coincidence that Clara and Tullamore happen to be in the constituency of the Minister for Foreign Affairs. It is no coincidence that Athlone happens to be the home town in the constituency of the Minister for Public Enterprise. It is no coincidence that Ballinasloe and Oranmore happen to be in the constituency of another senior Minister. It is no coincidence that all of these are catchment areas in constituencies of senior Ministers. Nevertheless, we have been only able to extract positive commitments in respect of other towns along the Corrib line. In Mayo, for example, all we have is a definitive statement on the gas going via Ballina. We have had no indication that Ballina itself will get the gas. These decisions are being made on an arbitrary basis without any planning.
I listened to the Minister of State this morning on "Morning Ireland". When he was questioned by the interviewer, I heard him say clearly and categorically that no representations were made to him by any of the Ministers involved. Was he approached at any stage by the Minister for Foreign Affairs, Deputy Cowen, the Minister for the Environment and Local Government, Deputy Dempsey, the Minister for the Marine and Natural Resources, Deputy Fahey, or his senior Minister, the Minister for Public Enterprise? We have said, and it is quite obvious, that there are ministerial fingerprints all over yesterday's announcement.
The Minister of State says the decision was made entirely by An Bord Gáis, but I have asked him clearly and categorically to clarify if any of the aforementioned Ministers approached him in regard to having access to the gas pipeline for the towns in question. In terms of the east-west pipeline, will the gas be Corrib gas? In other words, will it be flowing from the west to the east or from the east to the west, because a gas pipeline is not a dual carriageway – it either goes one way or the other? Does it mean that by the time Mayo gets the gas, it will have gone around the entire country.
Will the Minister offer clarification on the very specific questions I have asked about the very contentious announcement yesterday? I have no problem whatsoever with towns being included, but what is needed is a comprehensive plan, a definitive statement and a clear indication at this stage as to what the official thinking is on who will get the gas in the short term. The Minister of State spoke about a short term strategy and a long term strategy. What we need is a final strategy. We need a clear, definitive statement and we need to know exactly what towns will be included. We know where the pipelines are, where they will be and what the plans are, but we want to know what towns are included at this stage.

This morning on the Order of Business I asked the Tánaiste a question on the Gas (Interim) (Regulation) Bill. I know the Ceann Comhairle ruled me out of order but, unfortunately for the Tánaiste, she will have to answer the question tomorrow when she goes to Longford.

My colleague, Deputy Jim Higgins, asked the Minister of State if he was lobbied by some Ministers as regards the destination of the pipeline. Was he lobbied by the Taoiseach and the Minister for Finance in respect of bringing the gas line to Longford, because both of those men gave commitments when they were in Longford, the Taoiseach three weeks ago and the Minister for Finance one week ago? The Minister for Foreign Affairs was there about six or seven weeks ago and he gave a commitment that the gas would come, but he obviously had Clara and Tullamore in mind. He was not thinking about Longford.

The Bakerloo line in London was one of the first underground lines. It differs to modern underground lines because it was inter-crossed. It was laid to suit the stations overhead. The modern lines are built before the stations are built. The particular line about which the Minister of State made his announcement yesterday will always be known as the ministerial line, not the gas line.

I hope the Minister of State will answer my question on whether he was lobbied by the Taoiseach and the Minister for Finance as regards bringing the gas line to Longford. Not only do I want to know the answer to that question, but so also do my constituents. There are very angry people in Roscommon, Leitrim and everywhere else because we were totally and utterly ignored. It is a disgrace and a very sad day for us.

I compliment my two Opposition colleagues for their very astute strategy of doing Second Stage business on Report Stage of a Bill.

A late stage.

Good luck to the Deputies. To respond, I will also digress if I am permitted. With regard to the wind energy issues raised by Deputy Jim Higgins, I am pleased that fantastic improvements have been made. The position on wind energy has changed. It has recently been accepted by the public, which was, heretofore, very concerned about noise and the visual impact etc. That is no longer the case. Therefore, as a result of that change of attitude by the public, it is much easier to get planning permission.

I made a recent announcement regarding successful applicants for AER V. The competition pertaining thereto had a mandatory requirement that planning permission be in the possession of applicants. That means we have some 350 megawatts of renewable energy to be produced by wind, for which all applications have planning permission. That will virtually ensure that those projects will go ahead, unlike earlier competitions which fell at that particular fence because of the failure to secure planning permission later.

The announcement is the most significant ever in terms of renewable wind energy production. It means I have trebled the target in terms of energy being produced by renewable sources. The net result is that, by 2005, which is just a short time from us, 12% of our energy production will come from renewables, primarily wind energy. Wind energy technology is most suited to Irish conditions. That is very satisfying for me, as the one responsible for driving that particular part of Government policy. I am sure it will be welcomed by all.

What happened yesterday was that contracts were signed by BGE with their contractors for the expenditure and the investment of €250 million in the midlands and west. That is the most significant investment ever for that particular area. It is to be very much welcomed and positively received. It will have huge implications for areas heretofore unserviced by such hugely important infrastructure. It has taken us 22 years from the time that Kinsale gas first came ashore to get as far as we have in terms of the infrastructure that is in situ. Yesterday's activities in terms of the signing of those contracts heralded, in one fell swoop, a 50% increase in infrastructure on this island. The fact that the Government has already decided that the gas infrastructure will go to the north-west is significant, and plans are afoot to ensure that this will happen to important towns – gateway towns, as termed in the national spatial strategy – like Sligo and Letterkenny. That is what the plans aim to achieve. It is all very positive.

Yesterday, An Bord Gáis announced that ten towns have been selected and it selected them according to commercial criteria. There is a statutory requirement on BGE to select towns for connection to the gas infrastructure on the basis of economic and commercial viability.

The chief executive of BGE said yesterday that this is phase one and that no town is being excluded. The Government wants to see the west, the midlands and the north-west of the country taking advantage of the infrastructure which is being provided to those regions and as many towns as possible connected to it. It will be the responsibility of BGE and, when deregulation comes, whichever developer is involved to select the towns and areas for connection.

I met delegations from many parts of the country and I spoke to many colleagues in the House. However, the Ministers whose names have been mentioned would have known it was a waste of time to talk to me about the selection of towns for connection to the gas grid because they would have known that was not my call. That is the truthful answer.

May I raise a point of order and seek clarification from the Minister with regard to his statement about Sligo and the north-west?

The Deputy's point of order must relate to the amendment before the House.

It is very much related to the north-west. The Minister has referred to Sligo and the north-west. The Minister has excluded Sligo from broadband technology and we are now excluded from the gas pipeline. Seven of the ten regions to be served are in Leinster and Munster and only three are in Connacht although the gas is coming out of the west.

The Deputy must relate his contribution to the amendment.

I have the highest respect for the Minister of State and I am delighted to have this opportunity to seek clarification.

How the west was lost.

Sligo has been excluded from broadband and gas. Last week we were denied funding for the mid-block route, for which the Minister blamed the NRA. Now the Minister of State blames Bord Gáis Éireann.

I believe I have allowed sufficient latitude.

I am very thankful a Cheann Comhairle.

I do not think we can continue on this line. There is an amendment before the House and I ask the Minister of State to respond to points already made.

The Minister must give clarification.

Mr. Higgins (Mayo): With regard to the relevance of Deputy Perry's question to my amendment—

I agree the point is relevant but Deputy Perry was not relating what he was saying to the amendment.

(Mayo): The amendment is specific—

I have allowed Deputy Belton on the basis that what he was saying was relevant to the amendment but Deputies must relate what they say to the amendments before the House.

(Mayo): The amendment refers to the need to secure a satisfactory supply of gas and electricity for users and in particular the need to take account of the needs of rural customers. That is fundamental.

I would have allowed Deputy Belton to continue. Deputy Perry was out of order. He raised his matter on a point of order and it was not a point of order.

I am glad the Minister of State is prepared to respond. I could not allow him to make reference to Sligo when it has been excluded—

Let us continue with the discussion of the amendment before the House.

With regard to Deputy Perry's question, the Government has decided that gas infrastructure will go to the north-west.

How could the Minister of State decide that?

The Ceann Comhairle has allowed me latitude to respond. If the Deputies will allow me to respond I will do so.

The Government has decided that gas infrastructure will be extended to the north-west notwithstanding the fact that it is not financially or economically viable to do so. Subject to EU State aids and so on, it is planned to take gas to Sligo via Ballina and to take gas to Letterkenny via Derry. To that end the Government has granted €12.5 million to the Northern Ireland authority for the purpose of subventing the gas line from Belfast to Derry and to bring gas to County Donegal. The Government is resolved that the north-west is facilitated by this important piece of infrastructure. I am proud to have driven that part of Government policy.

With regard to Deputy Higgins's question, gas will be going from east to west because the indigenous supplies will not be available for some time. The infrastructure which is now being put in place will initially take gas from the east to the west via Galway to Limerick. In the future the traffic will be two-way.

The amendment proposed by Deputies Higgins and Staunton attempts to set out certain duties for the regulator and describes a number of matters to which the regulator should have regard when carrying out his duties. I have no difficulty with any of these duties or with other matters raised in the amendment. My difficulty is simply that the amendment is not necessary.

The duties and other matters proposed in the amendment are almost all taken care of in section 9 of the Electricity Regulation Act, 1999, as amended by section 6 of this Bill. The existing section 9 of the Electricity Regulation Act, 1999 describes the functions of the commission, the duties of both the Minister and the commission in respect of their functions and a range of issues which must be taken into account in discharging those duties. The section also places additional duties specifically on the commission in discharging its functions. This is being amended by section 6 of the Bill in the light of the commission's proposed additional functions in relation to natural gas.

I do not wish to prolong the debate longer than is necessary and I do not, therefore, propose to go into a lengthy exposition of where each of the matters raised in the amendment before us is dealt with in the Bill. Suffice to say that each and every issue mentioned in the amendment is already covered, either implicitly or explicitly, in the Electricity Regulation Act, 1999 or in this Bill.

Deputy Higgins feels that certain matters that are already mentioned in the Electricity Regulation Act, 1999, should be restated in this Bill. While I would like to accommodate the Deputy, such a restatement is neither desirable nor possible. Except in the case of one or two provisions, section 1 of this Bill is to be construed to mean that the Electricity Regulation Act, 1999, and the Bill are to be taken as one. Therefore, if I were to agree to the inclusion in the Bill of a provision that is already contained in the Electricity Regulation Act, 1999, I would be simply duplicating that provision. This could lead to considerable complications and confusion. While I recognise the suggestion before us is being made with the best of intentions, I cannot accede to it.

This amendment seeks to deal with matters already covered in one way or other by the Bill or by the Electricity Regulation Act, 1999. If I chose to accept this, there would be one additional difficulty. Inserting this text into the Bill would change fundamentally the manner in which the commission's duties are already set out in the Act. The text would replace the precise list of duties of the commission as described in section 9(5) of the Electricity Regulation Act, 1999, with a duty described in the first paragraph of the proposal. This would effectively eliminate as duties the matters described in the existing section 9(5)(a) to 9(5)(e).

Section 9 of the Electricity Regulation Act, 1999, has been constructed in a very particular and logical way that makes clear the commission's precise functions and duties and the matters the commission must take into account in carrying out its duties. Section 9 has been constructed in this way to ensure that any action taken by the commission, including any decision made, has a clear and objective justification based on the matters set out in that provision. The amendments to this section proposed in the current section 6 of the Bill do not seek to tamper with this construction and simply seek to amend the text in light of the extension of the commission's responsibilities in the area of natural gas.

The amendment being proposed would unfortunately change significantly this carefully constructed provision. This change would not be for the better and the incorporation of this text into the Bill will only lead to a lack of clarity in a provision that, because of its fundamental importance to the way the commission acts as regulator, could not be countenanced. I am therefore not in a position to accept the amendment.

(Mayo): I am disappointed the Minister cannot accept my amendment. As the Minister said, my amendment basically restates many of the provisions of the Electricity Regulation Act, 1999. If it is simply restating what is already in the existing legislation, I cannot see the danger referred to by the Minister. I am endeavouring to enshrine in the legislation what is already in the Electricity Regulation Act, 1999, and slightly expanding thereon with no danger in terms of further implications by way of interpretation or otherwise.

In relation to the contentious announcement of the towns to be supplied with gas, it is obvious that was a political decision. The Minister has contradicted himself this afternoon. Earlier in his reply, the Minister said that Bord Gáis Éireann makes the selection. In reply to my very specific questions as to whether he was approached by all or any of the four Ministers I mentioned, Deputies Cowen, O'Rourke, Dempsey and Fahey, the Minister of State said it would be "a waste of time" for them to talk to him.

There is no ambiguity about that.

(Mayo): The Minister did not answer the question about whether he had spoken to them or received oral or written representations from them.

The Deputy might give way to me on that. I do not want any ambiguity about this.

The Deputy is using his two minutes and when he has finished the Minister is entitled to speak for two minutes.

(Mayo): On the one hand he says Bord Gáis Éireann makes the selection and on the other hand he states “The Government has decided that the gas infrastructure will go to the north-west, that it would not be economically or financially viable to do so without subsidy”. On the one hand, the Government is deciding and on the other hand, Bord Gáis Éireann is deciding. The problem we have in Mayo is that for the first time in the history of the State we do not have a senior Minister. If we had, places like Belmullet, Castlebar, Westport, Ballinrobe, Swinford, Charlestown, Claremorris, Ballyhaunis and Crossmolina would be supplied with gas. However, unfortunately we do not have the clout at the Cabinet table.

I do not want ambiguity about this. We are talking about the selections of towns and I repeat categorically that I did not have representations from the four colleagues mentioned by Deputy Higgins for the reasons I outlined, which I do not have to repeat. The Government makes policy and at a Cabinet meeting that was publicised thereafter the Government made a policy decision that gas infrastructure would be brought to the west and the north-west. That still stands and the Government is resolved that will happen, notwithstanding the major difficulties vis-à-vis the economics, State aid requirements etc. Let us not confuse selection of towns on a pipeline with Government policy. I hope that clarifies this absolutely.

Amendment put and declared lost.

(Mayo): I move amendment No. 4:

In page 6, between lines 39 and 40, to insert the following:

"(d) by the insertion of subsection (6) after subsection (5):

‘(6) In carrying out its functions the Commission shall ensure that all determinations, regulations and conditions attaching thereto, amendments thereof and requests shall be objectively justified and shall be non-discriminatory, proportionate and transparent.'.".

On Committee Stage, I was very brief on this amendment and I will be equally brief this afternoon. This goes back to the basic principle of accountability.

When this amendment was debated on Committee Stage, I explained to Deputy Higgins that I could not accept it because the legal advice available to me was that the proposed text was too open to subjective interpretation to be acceptable in the Bill. That advice still stands and as a result, my position on this amendment remains the same. In the context of the way the regulatory framework for the electricity and gas sectors is constructed, this amendment is not a suitable text for inclusion in this Bill.

In his contribution on Second Stage, Deputy Higgins spoke at length about what he saw as the ineffectiveness of the regulator and in particular the telecommunications regulator at ensuring that the benefits of competition were reaching the consumer. In my response to the Deputy, I stated my belief that the framework set out in this Bill, when taken with that provided in the Electricity Regulation Act, 1999, gave more than adequate powers to the regulator to ensure competition took place in the market.

The effect of this amendment would be to undermine the regulator's ability to do his job. This text is so open in the way it can be interpreted by different people that it could be used as a tool by anybody seeking ways to disrupt the work of the regulator in ensuring that the rules governing the market are being enforced. It would lead to the regulator being subject to countless legal suits, questioning the validity of his every action. It would be irresponsible of me to accept an amendment that could have that kind of effect.

At first, I found the text of Deputy Higgins's amendment very attractive in that the principles it expounds are ones with which we can all generally agree. However, my initial reaction was that of a layman and not a lawyer. If one proposes inserting such a text in primary legislation, one must take into account the effects of the text on the particular framework into which it is being inserted. Similar texts have been used in other legislation. I am aware that a similar text is used in the Aviation Regulation Act, 2001. The context in which it is used in that Act, however, is completely different from the context in which it is now proposed to be used. As I have stated, what is acceptable in one Bill is not necessarily acceptable in another. That certainly applies in regard to this legislation.

I wish to make it clear that I was initially keen to accommodate Deputy Higgins's proposal, but I regret I am unable to accept it for the reasons I have outlined.

Amendment, by leave, withdrawn.

Amendment No. 8 is consequential on amendment No. 5, therefore, both amendments will be discussed together.

(Mayo): I move amendment No. 5:

In page 6, between lines 39 and 40, to insert the following:

"7.–The Act of 1999 is amended, on the appointed day, by the insertion of the following section after section 9:

‘9A.–(1) The Commission may in relation to gas distribution agreements–

(a) set conditions which the Commission may specify as a condition precedent to the conclusion of a gas distribution agreement in the areas listed in Part I of Schedule 2 which said conditions shall be published by the Commission in accordance with section 9B, and

(b) encourage coverage of the issues listed in Part II of Schedule 2.

(2) The Commission may, from time to time, intervene on its own accord and shall intervene if requested by any party concerned in order to specify issues which shall be included in a gas distribution agreement or to lay down specific conditions to be observed by one or more parties to such an agreement and the Commission may direct that those issues or conditions be included in the gas distribution agreement and it shall be an offence to fail to comply with a direction of the Commission under this subsection.

(3) In exceptional cases the Commission may direct that changes be made to a gas distribution agreement in order to ensure effective competition of services for users and it shall be an offence to fail to comply with a direction of the Commission under this subsection.

(4) The conditions set or changes directed by the Commission pursuant to subsections (2) and (3) may include, inter alia, conditions designed to ensure effective competition, technical conditions, tariffs, supply and usage conditions, conditions as to compliance with relevant standards, compliance with essential requirements, protection of the environment or maintenance of end-to-end quality of service.

(5) The Commission may, at any time on his or her own initiative or if requested by either party, set the period within which negotiations on gas distribution shall be completed and if agreement is not reached within that period the Commission shall take steps to conclude an agreement under procedures to be laid down by the Commission.

(6) The Commission shall establish and maintain procedures in order to procure the agreement referred to in subsection (5) and the procedures shall be made available to the public in accordance with section 9B.

(7) In the event of a dispute between organisations in relation to gas distribution the Commission shall, at the request of either party, take steps to resolve the dispute within six months of that request being made and the resolution of the dispute (in these Regulations referred to as a "finding" of the Commission) shall represent a fair balance between the legitimate interests of both parties.

(8) In seeking to resolve a dispute under this Act the Commission shall take into account, inter alia

(a) the user interest,

(b) regulatory obligations or constraints imposed on any of the parties,

(c) the availability of technically and commercially viable alternatives to the gas distribution requested,

(d) the desirability of ensuring equal access arrangements,

(e) the need to maintain the integrity of the gas distribution network,

(f) the nature of the request in relation to the resources available to meet the request,

(g) the relative market positions of the parties,

(h) the public interest (including but not restricted to the protection of the environment),

(i) the promotion of competition, and

(j) the need to maintain a public service obligation.

(9) The Commission shall make any finding under subsection (7) available to interested parties on a request being made to the Commission and the parties to the dispute shall be given a full statement of the reasons on which the decision is based.

(10) An organisation which fails to comply with a finding of the Commission under subsection (7) shall be guilty of an offence.'.".

This amendment refers to the role of the commission in overseeing gas distribution agreements. It seeks to set down in clear detail what the role and powers of the commission would be in such circumstances. Subsection (1)(a) states that the commission may specify as a condition precedent to the conclusion of a gas distribution agreement in the areas listed in Part I of the Schedule which said conditions shall be published by the commission in accordance with section 9B, and encourage coverage of the issues listed in Part II of Schedule 2. What we are saying here is that the commission may intervene to specify the issues which should be included in a gas distribution agreement or it can lay down specific conditions to be observed by one or more of the parties. In addition, it may direct that those issues or conditions be included in the gas distribution agreement and it shall be an offence to fail to comply with the direction of the commission under this subsection.

Subsection (3) is in the national interest, to borrow a phrase from the much lamented "Bull Island". It states that the commission may direct that changes be made to a gas distribution agreement to ensure effective competition of services for users and it shall be an offence not to comply with the direction of the commission in this regard. In other words, it shall ensure that a gas distribution agreement is in the spirit of providing effective competition for services, in other words, that the consumer or user will at the end of the day be the net beneficiary of such competition. The amendment seeks to ensure effective competition, technical conditions, tariffs, supply and usage conditions, conditions as to compliance with relevant standards, compliance with essential requirements, protection of the environment or maintenance of end-to-end quality of service. Again, from the point of view of the timeframe within which an agreement can be reached, it shall set a period within which negotiations on gas distribution shall be completed. It will take steps to conclude an agreement under the procedures laid down by the commission.

Subsection (7) states that in the event of a dispute between organisations in relation to gas distribution the commission shall, at the request of either party, take steps to resolve the dispute within six months of that request being made and the resolution of the dispute shall represent a fair balance between the legitimate interests of both parties. We are talking here about the regulatory arbitrary refereeing role of the commission in relation to overseeing gas distribution agreements. Where a dispute arises, it shall ensure the dispute is resolved within a six month period and not be allowed to drag on interminably. The amendment seeks to try to resolve the dispute to ensure it happens within the six month period.

The issues to be taken into account by the commission shall be the user interest, the regulatory obligations or constraints imposed on any of the parties, the availability of technically and commercially viable alternatives to the gas distribution requested, the desirability of ensuring equal access arrangements, the need to maintain the integrity of the gas distribution network, the nature of the request in relation to the resources available to meet the request, the relative market position and the relative strength of their market share, the public interest, including but not restricted to the protection of the environment, the promotion of competition and the need to maintain a public service obligation. The commission shall make any finding under subsection (7) available to interested parties on a request being made to the commission and the parties to the dispute shall be given a full statement of the reasons on which the decision is based. An organisation which fails to comply with a finding of the commission under subsection (7) shall be guilty of an offence.

This amendment which seeks to set down a set of guidelines or rules under which the gas distribution agreements will operate and the role of the commission in overseeing and arbitrating in such circumstances and in resolving disputes is a sensible one.

These amendments seek to deal with gas distribution agreements. While this term is undefined in the amendments, I can just assume it refers to arrangements between customers and distribution network operators for the transportation and delivery of natural gas by the network operator on behalf of the relevant customer. The main reason I am not able to accept the proposed amendments is that the issues they seek to address are already covered in detail in the Bill.

Section 14 of the Bill addresses the issue of third party access, that is, the transportation of natural gas by pipeline operators on behalf of other persons. It does not matter whether the transportation of natural gas takes place over transmission or distribution pipelines or networks. This section covers all pipelines and networks of pipelines. I am aware Deputy Higgins is particularly concerned that there should be a dispute resolution role provided for the commission. I assure the Deputy that this has already been done in subsection (8) of the amended section 10(a) of the 1976 Act as set out in section 14 of the Bill. Under this section the commission has the power to impose a resolution on the parties involved in a dispute and can, if necessary, apply to the High Court to ensure compliance. There is also a direct obligation on the commission to resolve such disputes expeditiously.

This obligation derives from the EU gas directive. It recognised the importance of a quick resolution to ensuring competition in the market is effective. By not specifying a precise time period for the resolution of such disputes, it also recognised, however, that certain disputes are more complex and require more time to resolve than others. The imposition of a clear obligation on regulators to resolve disputes expeditiously means that each individual dispute is resolved within the shortest time period relevant to the particular case.

Among its powers under this section the commission has the power to make regulations to provide for the matters to be covered by such agreements, including the terms and conditions in regard to price. The regulations may also provide for the methods for determining the proportion of cost to be borne by each of the parties involved and the terms and conditions covering the manner in which applications are made and the period of time within which an offer or refusal must be made. The commission also has the power to provide for any other matters it considers necessary or expedient in regard to this issue.

A further major issue affecting the detail of such agreements is what is contained in the relevant operators code of operations. These codes set out in detail the technical, operational and certain financial aspects of pipelines and other network facilities. This issue is dealt with in section 13. Again the commission has full powers to direct operators to amend their code as necessary. I should point out that agreements in this area between Bord Gáis Éireann, the network operator, and relevant suppliers and customers have been in operation since 1995 when third party access rights were first introduced. BGE's code of operations has been drawn up by agreement between the company and major users and suppliers. The system has worked without major difficulty during that time, and the commission has ample powers in the Bill to ensure this continues to be the case.

Amendment put and declared lost.

Amendment No. 9 is an alternative to amendment No. 6 and both may be discussed together.

(Mayo): I move amendment No. 6:

In page 6, between lines 39 and 40, to insert the following:

"7.–The Act of 1999 is amended, on the appointed day, by the insertion of the following section after section 9:

‘9B.–(1) With regard to the information referred to in section 9A, the Commission shall ensure that up to date information is published in an appropriate manner in order to provide easy access to that information for interested parties.

(2) The Commission shall publish a notice in Iris Oifigiúil as to the manner in which the information referred to in subsection (1) is published.

(3) The Commission shall ensure that the information referred to in sections 9, 20 and 22 is made available from its office on request to interested parties free of charge, during normal working hours.

(4) The Commission shall publish a notice in Iris Oifigiúil as to the times and locations at which the information referred to in subsection (3) shall be available.'.”.

I will be brief because I elaborated on this amendment at length on Committee Stage. It concerns the publication of the necessary data in Iris Oifigiúil. From the point of view of making the information available to relevant and interested parties, it is vital the information to which I referred on Committee Stage is published and notices duly published in Iris Oifigiúil.

As the Deputy said, we had a good interchange on this amendment on Committee Stage. While I will not accept it, I certainly see the merit in having a provision in the Bill dealing with the provision of information by the commission. As I said on Committee Stage, I have in mind the publication of information aimed at ordinary electricity and gas customers telling them what they are entitled to under legislation.

At present, approximately 75% of the gas market and 45% of the electricity market are open to competition. This means that large users of electricity and natural gas are allowed to source their own supplies. In terms of gas, this covers about ten large companies, and in terms of electricity, it covers about 1,600 users. Upon enactment of the Bill the number of eligible customers in terms of gas will increase immediately to about 100. In the main, we are talking about large undertakings, many of which have energy managers and advisers to tell them their rights in this area and how to exercise them.

As liberalisation of the market increases, however, the benefits will begin to reach larger numbers of smaller users, such as local pubs and even domestic users. As most, if not all, of this category of consumer will have had little or no experience of changing supplier, except switching their mobile phone provider, it is important that they are adequately informed of their rights and how to exercise them, if they wish to do so.

As I promised on Committee Stage, I have considered this matter further and tabled amendment No. 9 to deal with it. The amendment differs from that tabled by Deputy Higgins and his colleague, Deputy Stanton, in that it does not seek to impose a direct and immediate obligation on the commission regarding the provision of information. Instead, it seeks to provide the Minister with the power to issue guidelines to the commission detailing the type of information the Minister considers it should provide as well as the manner in which it should provide it.

I have chosen this approach because it is neither appropriate nor necessary to impose the type of obligation amendment No. 6 seeks to impose on the commission. The independence of the commission must be respected to the greatest extent possible in this matter. It has a clear set of duties set out in the legislation, including a duty to ensure the interests of final customers are met. It fully meets this responsibility which includes the area of information provision. One only has to examine its website and view the extent of the information provided and the number of consultation and information workshops being undertaken to see that this is the case. We need to be pragmatic, however, and recognise that, while the commission fully meets its obligations and more than likely will continue to do so into the future, it is prudent that the Minister should have the type of power proposed in my amendment should the need arise at some future date regarding the provision of information.

While my primary focus is on the needs of small customers, the provision allows the Minister the flexibility to identify any category of person in the guidelines as well as flexibility in terms of how the information should be provided. This specifically includes the possibility of electronic publication. In this regard, I have already mentioned the useful website the commission has in place. While publications such as Iris Oifigiúil, as mentioned in Deputy Higgins's proposal, have their useful place, in this instance we need to be able to ensure the information is accessible in the easiest way to those who require it. I thank the Deputy for his useful suggestion regarding the inclusion in the Bill of a provision of this nature. He will understand that I cannot accept the suggestion made by him in this instance, but I am sure he will see the merit in the alternative I have put forward.

(Mayo): I thank the Minister of State for his response. He has come a tiny bit of the road I have attempted to chart for him. I am at a loss to know the reason the information about which we are talking cannot be provided in Iris Oifigiúil in addition to the website. I fully accept that the information is available on the website and that it is updated at an impressive rate, but I am at a loss to know the reason Iris Oifigiúil, the official journal, should not also have inserted in it the additional information I seek. It is the dictionary of official information. Why should it be excluded, notwithstanding that the website has a considerable bank of information relating to the details specified by the Minister of State? I accept his amendment and withdraw mine.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 7, line 13, to delete "section" and substitute "Act".

This amendment has the same purpose as the amendment to this section of the Bill which I tabled on Committee Stage. The aim of these associated amendments is to ensure the provisions of subsections (3) to (7), inclusive, of section 7 apply to both functions being transferred by way of the Schedule and functions otherwise transferred by the second method identified under the Bill. The amendment should have been included on Committee Stage, but was omitted in error. I propose that it be accepted now.

Amendment agreed to.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 36, between lines 13 and 14, to insert the following:

"20.–(1) The Minister may, from time to time, issue guidelines to be followed by the Commission in relation to the provision of information by the Commission to such classes of person as the Minister considers appropriate, including final customers of electricity and gas, concerning the rights of such classes of person, and any other information the Minister considers would be of benefit to such classes of person.

(2) Without prejudice to the generality of subsection (1), the guidelines may provide for the manner in which such information should be provided, including, where the Minister considers it appropriate, publication by electronic means.

(3) In subsection (1), ‘final customer' in relation to electricity, has the meaning assigned to it in section 2(1) of the Act of 1999.”.

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Ceann Comhairle for facilitating this important legislation, my officials for the massive amount of work which has gone into preparing the Bill and getting it to this stage, and Deputies Jim Higgins, Stagg and Stanton for their co-operation, assisting me in teasing out matters throughout the passage of the Bill and ensuring we have improved legislation.

(Mayo): I thank the Minister of State for bringing the Bill before the House. It is important legislation. We said we would facilitate its passage before the dissolution of the Dáil. I am delighted it will shortly be on the Statute Book. It is urgently needed and I am delighted we have been part of the co-operative effort. I hope we have improved the Bill. The Minister of State has an ingenious capacity for being extremely complimentary about the movers of amendments on the Opposition side while, at the same time, accepting none of them. I commend his talent in this regard. One point, however, is that the granting of absolute powers to regulators is a matter we must revisit at some stage, although we do not know when.

Question put and agreed to.
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