Dáil Éireann debate -
Tuesday, 6 Apr 2004

Vol. 583 No. 3

Air Navigation and Transport (International Conventions) Bill 2004 [Seanad]: Report and Final Stages.

Ms Shortall

I move amendment No. 1:

In page 3, between lines 15 and 16, to insert the following:

"(2) This Act and the Air Navigation and Transport Acts 1936 to 1990 may be cited as the Air Navigation and Transport Acts 1936 to 2004 and shall be read together as one.".

I am disappointed, in light of discussions on Committee Stage last week, that the Minister for Transport has not considered any of the points made. He gave us to understand that he would examine them and, if necessary, table his own amendments. I was disappointed to see that he had no amendments on the list that was circulated today. To what extent is he not correcting the technical problems with this Bill that were pointed out on Committee Stage because he does not want the inconvenience of the Bill being referred back to the Seanad?

He indicated on Committee Stage that the Opposition made valid points and that he would correct the omissions in this Bill in a future eurozone Bill. That is bad practice. We should deal with each Bill on its merits to ensure it is as good as possible. That is the purpose of Committee Stage. It is bad practice not to deal with an obvious mistake or omission. It means an extra few hours and it would not be difficult to get the Seanad to schedule this Bill again.

The Minister should have been big enough to admit there were minor difficulties that should have been corrected. I have suggested that in page 3, between lines 15 and 16, we would correct a technical omission by inserting a collective citation with the existing Air Navigation Acts. We should amend the Bill along these lines.

Mr. Naughten

I endorse Deputy Shortall's comments. When the Opposition takes the time and makes the effort to draft amendments to Bills and table them on Committee Stage, and the Minister gives a commitment to return with amendments on Report Stage, it is disingenuous of him not to do so and to refer to addressing the issues in a further Bill purely to avoid going back to the Seanad in respect of the amendments.

This type of procedure normally occurs in the Upper House when it is dealing with a Bill and the Minister is not prepared to come back to this House with amendments. We are supposed to be legislators. We are supposed to be examining the legislation on all sides of the House and, where reasonable amendments are tabled, the Minister should take note of them. We all want to facilitate the legislation and have it passed by 1 May, and it can be done within the time available.

I support Deputy Shortall's technical amendment, which I hope the Minister of State can accept.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Fahey)

The Minister for Transport regrets that he is unable to be in the House this afternoon due to the European Presidency meeting which is taking place today.

Mr. Naughten

Michael Schumacher is giving him driving lessons.

Mr. Fahey

If Mr. Shumacher were giving driving lessons, I am sure Deputy Naughten would be there too.

I take the point made by both Deputies. However, the urgency of concluding the Bill before the Easter recess is so that Ireland will be in a position with the other EU member states to ratify the Montreal convention before the end of April in order that it will be part of European law before the enlargement of the Union on 1 May. The Bill has been through the Seanad and if amendments are made in the Dáil it will be necessary, as Deputies are aware, to take it back to the Seanad. Therefore, the Bill would not be finalised before Easter.

I can deal with several of the issues raised without the need to incorporate changes in the text which was passed by the Seanad. In any case, I understand the Minister has already stated that a similar short Bill to give effect to the 1997 Euro-control revised convention will come before the Oireachtas later this year and will provide an opportunity to deal with remaining issues without delaying this Bill. I hope that is acceptable to both Opposition spokespersons.

Ms Shortall

The Minister of State and the Minister for Transport have accepted that we have a point and that these technical amendments are required but, purely for reasons of time, he is not prepared to concede to them. Everyone on this side of the House has been more than co-operative on this Bill in spite of the fact that the Government has had a number of years in which to bring it forward. We are dealing with it at the last minute but, as the Minister of State knows perfectly well, there would still be time this week — the Bill could go to the Seanad tomorrow and be wrapped up.

It is bad practice to accept that there are faults in a Bill and still allow it to be passed. It is not the right way to handle legislation and I appeal to the Minister of State to consider accepting these amendments and bringing the Bill before the Seanad tomorrow. We could still operate to the same time scale and we are more than happy to facilitate that. I do not believe the deadline is that tight and if something of a technical nature needs to be changed, it can surely be done in the week after Easter week, since we will be here to deal with the immigration Bill.

Mr. Naughten

I support Deputy Shortall's assertion that time is available. The Opposition has facilitated the Government in dealing with this legislation and has not caused undue delay. However, the difficulty is that the Government has dragged its heels in bringing forward this Bill and is now putting a gun to the Opposition's head saying that it needs to have the Bill through by 1 May and asking if the Opposition will facilitate it. However, when reasoned amendments are tabled, the Minister and his Department are not prepared to accept them because they do not want to go through the rigmarole of going back to the Seanad.

We can give the Minister a commitment that our colleagues in the Seanad will facilitate the swift passage of these amendments in the House before the end of the week to ensure the legislation meets its target.

The Minister of State stated that a further Bill is proposed for later this year. Will he clarify what the Minister for Transport stated? Will the legislation come forward later this year or in the autumn? There is a tendency for the Government to state that legislation is to come forward at a certain season in the year, for example, in the spring, summer or autumn, but we are not told in which year. That was typified in the House on the Order of Business in respect of the Rail Safety Bill which went through Committee Stage 12 months ago and was to be passed in the spring, yet the Taoiseach is now talking about the summer.

Mr. Fahey

With the Easter recess, it would not be possible from a time point of view to go back to the Seanad, come back to the Dáil and have the Bill signed by the Minister and the President. If major issues were involved, there is no question but that every effort would be made. However, that is not the case and the technical matters can be dealt with in the 1997 Euro-control Bill which will come before the House later this year — the Deputy can take it that will be in the autumn.

The effect of the proposed amendment is that it would clarify that the Air Navigation and Transport Bill would be read together with the previous Air Navigation and Transport Acts. While it is a normal feature of Irish legislation that Acts may be grouped together as a series, it is not a requirement that they be so grouped, nor does it affect the validity of any part of the Act or Acts in question if they are not grouped together. However, in this case, the parliamentary counsel has advised that it would not be appropriate to group this Bill with the other Air Navigation Acts. This is because this Bill consolidates the law concerning the Warsaw and Montreal conventions.

The law referred to in the 1929 Warsaw convention is currently included in Part 3 and the First Schedule of the Air Navigation and Transport Act 1936. These are repealed in section 11 of the Bill. The text of the 1929 convention is reproduced in the First Schedule of the Bill. The 1955 and 1975 amendments to the Warsaw convention were enacted in the Air Navigation and Transport Acts of 1959 and 1988. The text of the Warsaw convention incorporating these amendments is reproduced in the Second Schedule of the Bill. Consequently it is not possible to link this Bill to any other air navigation Acts and, on this basis, I am sure the House will agree the proposed amendment is unnecessary.

Amendment, by leave, withdrawn.

Ms Shortall

I move amendment No. 2:

In page 4, between lines 32 and 33, to insert the following:

"4.—Every Order under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the Order is passed by either such House within the next twenty one days on which that House has sat after the Order is laid before it, the Order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

This amendment proposes in page 4 to insert a new section to safeguard the rights of this House in respect of ministerial orders. In three places in this Bill, provision is made for the Minister to make orders on one matter or another. The standard practice is that where ministerial orders are made, they are laid before the Houses. However, that is not provided for in this legislation. I propose that we amend the Bill to state that every order under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

The amendment proposes that the normal convention be adhered to, whereby orders made by a Minister are laid before the Houses so that Members, particularly Opposition Members, have an opportunity to consider the orders and object to them, if appropriate. This is good practice and this provision should have been included in the original Bill. I ask the Minister of State to consider including it now.

Mr. Fahey

The amendment would oblige the Minister to lay any order made under this Act before both Houses of the Oireachtas and give the House an opportunity to nullify those orders. The Bill envisages the Government making orders in three places, in sections 6(1) and 6(2) and in section 9. Both orders envisaged under section 6 are for the purpose of noting the current situation under the Montreal convention. An order under section 6(1) is for the purpose of formally listing the countries and territories to which the convention applies and an order under section 6(2) is for the purpose of formally noting changes to the monetary amounts under the convention.

Unlike the much earlier Warsaw convention, the Montreal convention includes a mechanism for adjusting those amounts to take account of inflation. If a majority of the states that are parties to the Montreal convention do not object to the changed amounts the higher figures will apply to all states that have ratified the convention. There is no provision in the convention for any single state to opt out of those changes. It is not appropriate for the Oireachtas to annul an order made under either of these subsections. The annulment would have no effect, either on the list of states that are parties to the convention or on the monetary amounts applicable within the convention.

An order under section 9 is for the purpose of extending the application of the convention to internal flights as well as to international flights. I accept, in principle, that this is an issue on which it would be legitimate for the Oireachtas to express its opinion. However, in practice most of the provisions of the convention, including the liability limits, are already applied to all EU airlines under EU Regulation No. 2027 of 1997 and Regulation No. 889 of 2002, and consequently apply to internal flights. Therefore, the need for making the order will not arise. In the circumstances I have outlined, I hope the House will accept that this amendment is not necessary.

Ms Shortall

This, again, is a case of the Minister of State not wanting to delay matters, while conceding that I have a point. The established practice regarding ministerial orders has served us well and should be maintained. It is bad practice to omit the requirement to lay orders before the House from legislation.

In the two earlier subsections the orders would not be of any consequence. Nevertheless, good practice should be adhered to. The fact that no one will ever challenge the order is beside the point. However, the provision is particularly necessary in respect of section 9.

The Minister of State is attempting to justify weak drafting. He is trying to deal with the Bill as quickly as possible and is not prepared to accept the delay which referral of the Bill to the Seanad would entail. These amendments were tabled two weeks ago, giving sufficient time to schedule debate of the Bill in the Dáil and Seanad. I accept that these are minor technical amendments. However, where technical errors and omissions are identified the Minister of State should accept that fact and facilitate correction, even if it involves a delay of a day or two. We might as well close down the Oireachtas if the Opposition may not have an input in the formation of legislation, particularly when it is of a technical nature.

Mr. Naughten

Deputy Shortall has raised a valid point. If the position of the Minister of State were applied generally to legislation, the standard provision regarding ministerial orders would never be included in legislation, because such orders are challenged extremely rarely. On that basis, there would be no point in ever making such a provision.

Reference to ministerial orders should be included in the Bill. The Opposition has facilitated the Minister in bringing forward this legislation. Members on this side of the House have examined the Bill and drafted amendments to it. Although this amendment is technical in nature, it can be agreed by both sides. It is not being accepted, purely for procedural reasons. When Opposition Members are prepared to facilitate the Government in passing legislation, it is disappointing that our amendments, which clarify the legislation and ensure the enactment of the Bill, are treated in this way.

Mr. Fahey

Deputy Shortall's point is taken. However, there is a time factor of more than just one day. The amendment regarding the orders under section 9 will be looked at favourably in the Bill to be introduced later this year. I hope that will be a fair compromise.

Ms Shortall

This is bad practice.

Amendment, by leave, withdrawn.

Ms Shortall

I move amendment No. 3:

In page 5, line 9, after "1975" to insert ", and a copy of the said French text shall be laid before both Houses of the Oireachtas by the Minister as soon as may be after the passing of this Act".

In the case of an inconsistency between the English and French texts of the Bill, section 5 provides that the French text shall prevail. The section contains the most ridiculous sentence I have ever seen in legislation. It states: "The French texts of those provisions are deposited in the Archives of the Ministry for Foreign Affairs of Poland, as provided for in the Warsaw Convention and in that Convention as amended by Protocol No. 4 of Montreal, 1975." I would not like to be in a hurry to get my hands on the French text, if it is buried somewhere in the depths of the Ministry for Foreign Affairs in Poland. This is ridiculous drafting. The French text should either have been attached to the Bill as a Schedule or laid before the Houses. In either case, the chosen option should be stated in the Bill.

When I raised this point with the Minister for Transport on Committee Stage, I was told that he had placed a copy of the French text in the Oireachtas Library. However, this will not be clear to a person reading this legislation in ten years' time. If the legislation can state that the French text is deposited in the Ministry for Foreign Affairs in Poland, why can it not state it is available in the Oireachtas Library? Would that not be more sensible? A more common practice would be to attach the French text as a Schedule to the Bill.

To state in the body of the Bill that it is in the Ministry for Foreign Affairs in Poland is ridiculous and unacceptable. That should be dealt with. The Minister seemed to accept that the complaints I made on Committee Stage were valid. Unfortunately, however, he has not seen fit to improve the Bill along the lines suggested and to make it sensible rather than ridiculous as it is at present.

Mr. Naughten

I support Deputy Shortall's amendment. A huge mistake was made when drafting this Bill in that the French text was not attached as a Schedule. It should have been attached as a Schedule when it took precedence over the legislation we passed. I do not know if Deputy Shortall is fluent in French, but I am not. The Department made a big mistake when drafting this Bill by not furnishing to Members or attaching as a Schedule the original text which will supersede any other text attached to the Bill. The parliamentary counsel should have included it in the Bill.

The Minister said in his Second Stage speech that the Bill was consumer orientated. He said it would make it easier for members of the public to take a case against an airline if they were involved in an accident or looking for compensation. However, if there is a dispute about the translation, one must go to Poland to find out what the French text states. Deputy Shortall's amendment clarifies that and tries to rectify the mistake of not attaching the French text to the Schedule when it supersedes the current text of the Bill.

Mr. Fahey

I can see a major problem for the electorate of County Roscommon. There are different types of technical issues. These are historic documents which will not be changed in the future. The amendment would require the Minister to lay a copy of the French text of the Warsaw convention before the Oireachtas. That would be unprecedented. The French text of these conventions is available on the website of the International Civil Aviation Authority.

Ms Shortall

Why did the Minister not state that in the Bill?

Mr. Fahey

As the Minister said, a copy of the documents will be placed in the Oireachtas Library. These are historic documents which will not be changed in the future. The Deputies should be sensible and accept that it is unnecessary to include the proposed amendment in the Bill.

Mr. Naughten

With all due respect, this is not the first time I have dealt with an international convention. I have dealt with such conventions from a number of Departments. It is almost taken for granted that when conventions come before the House we on this side of the House will rubber-stamp them. The international convention is signed and we cannot undo that. However, Departments and Ministers can sometimes learn something from what is introduced in the House. When the Minister replied on Second Stage, he complimented some of the Opposition speeches. In many cases Ministers who signed international conventions on behalf of this country changed their opinion about them as a result of what was discussed here. A Schedule should be attached to legislation which is superseded by a text lodged in the Library or wherever. That is standard practice. The Schedule is always attached to legislation dealing with EU or international agreements. That clarifies queries which may arise.

It may be the case that no one from Roscommon will raise questions. However, we do not know that for certain. People from Galway may be involved in an incident at some stage in the future where they or their families may have to make a compensation claim against an operator. If this legislation had been in place prior to the incident on 11 September, the one Irish family involved could have taken a case in Ireland. However, it could not do that because the legislation had not been enacted. It is relevant in this country, although I hope we do not have to use it.

Mr. Fahey

The Warsaw convention only came into being in November of that year so it is irrelevant as regards 11 September. There has not been a dispute between the French and English texts in the 75 year history of the Warsaw convention. I cannot believe this is an issue.

Ms Shortall

That is not the point. The point is about the daft drafting, not about disputes between the English and French versions. The Minister should be straightforward about it. Where the French text prevails, a copy of it should either be attached or laid in the Oireachtas Library. It would be better if the Bill did not refer to the Ministry for Foreign Affairs in Poland. By including that in a section of the Bill we are indicating that is the only place one can get it. At some point in the future, in the event of a serious incident, people will want to know where they can get it. According to the legislation, the place it can be got is the Ministry for Foreign Affairs in Poland. It is ridiculous to have that in the Bill. The drafters of the Bill should have done the sensible and practical thing of either putting it in the Library or attaching it. It would have made the Bill more sensible.

Mr. Fahey

The purpose of the reference to the text in Poland was to clarify which text we were talking about. They were not referred to in the legislation which has been superseded. That is the only reason for the reference to the text being in Poland.

Ms Shortall

That makes it worse. Which text has been placed in the Library?

Mr. Fahey

The text referred to.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 4. Amendments Nos. 5 and 6 are cognate. Amendments Nos. 4, 5 and 6 may be taken together by agreement. The Deputy may move only amendment No. 4, but she may speak to the three amendments.

Ms Shortall

I move amendment No. 4:

In page 5, line 10, to delete "notified in Iris Oifigiúil”.

This represents more weak drafting. It relates to the making of orders and notifying those in Iris Oifigiúil. The standard practice under the Statutory Instruments Acts is that orders are made and automatically published in Iris Oifigiúil. There is no need to include in the legislation reference to publishing them in Iris Oifigiúil. The fact that it is referred to indicates that the purpose is to bypass the Statutory Instruments Acts and publish them in Iris Oifigiúil. Is that the intention?

I hope it is not but the Bill, as drafted, indicates that it is. Normal practice under the Statutory Instruments Acts is that it happens automatically. Therefore, suspicions are raised if there is explicit reference to publishing it where that is not required. For that reason I propose to delete the words "notified in Iris Oifigiúil” in the three sections.

Mr. Fahey

It is clear from the subsection that orders must be printed and published as well as being noted in Iris Oifigiúil. The provisions of the Statutory Instruments Act will apply to orders made under the Bill. There is no intention to short circuit these provisions.

Section 3(1) of the Statutory Instruments Act was introduced by the 1955 amendment and reads as follows:

(1) The following provisions shall apply in respect of every statutory instrument to which this Act primarily applies—

(a) within seven days after the making thereof, a copy thereof shall be sent to each of the following, namely, the National Library of Ireland, the Law Library, Four Courts, Dublin, the King’s Inns Library, Dublin, the Incorporated Law Society of Ireland, the Dublin Chamber of Commerce, the Cork Chamber of Commerce, the Limerick Chamber of Commerce, the Waterford Chamber of Commerce, the Galway Chamber of Commerce and the Southern Law Association, Cork,

(b) as soon as may be after it is made, notice of the making thereof and of the place where copies thereof may be obtained shall be published in the Iris Oifigiúil,

(c) on and from the date of the issue of the Iris Oifigiúil containing the notice, copies of the statutory instrument shall be kept at the place specified in the notice and may be obtained there,

(d) as soon as may be after it is made, it shall, notwithstanding that it is liable to be annulled, be printed under the superintendence of the Stationery Office.

The words "notified in Iris Oifigiúil”, in effect, repeat the provisions of the Statutory Instruments Act. However, they do not lessen the applicability of the legislation. Any orders made under the Bill will be published in the normal way.

Ms Shortall

Then what is the purpose of the reference?

Mr. Fahey

I cannot accept the amendment because of the urgent need to enact the Bill.

Ms Shortall

What is the purpose of the reference?

Mr. Fahey

I will have to get clarification on that. The Minister will introduce another Bill later this year in which amendments will be included. The concerns expressed by Deputy Shortall will be looked at again at that time. As most of the provisions of the Montreal Convention already apply to European airlines wherever they operate, there is no obvious need to make an order under section 9 to apply the convention to international flights.

Ms Shortall

Dealing with legislation in this manner is bringing the House into disrepute. There are a number of technical problems with this Bill. They are minor but they are still problems. The Minister of State and the Minister have accepted the need to amend the Bill. However, they are saying they will not do so now. They will proceed with a flawed Bill even though they are aware of the flaws, as they have conceded on a number of occasions. That is bad practice. It also brings the House into disrepute. It means today's debate and the debate on Committee Stage last week are rendered meaningless by the Minister. We were just going through the motions of having the different Stages even though the Minister had no intention of considering amendments.

It would be one thing if the Minister told Members that there was no basis for the amendments. However, on Committee Stage and again on Report Stage he said the amendments were necessary, that the Bill was flawed and needed to be amended but that it would not be amended now but in a forthcoming Bill. If that is not making fools of all of us, I do not know what is. I reject the approach the Minister has taken with this Bill. He has been highly irresponsible in doing so. The problems should have been dealt with when there was ample time. When I tabled these technical amendments two weeks ago, there was time to deal with them in this House and to refer them to the Seanad. The Minister is bringing the House into disrepute by rushing the Bill through like this and is, in effect, giving us the fingers.

Mr. Fahey

If there was any significance in the changes being proposed, there might be a case for dealing with the issue, notwithstanding the time constraints involved. However, they are of a technical nature and make no material difference to the Bill. The Deputy has been given an assurance that the technical changes that are necessary will be made later in the year. Given the fact that they are of a minor, technical nature, it is not important to make the changes now. It would necessitate a delay in the Bill and leave Ireland unable to ratify the convention before 1 May.

The necessary technical changes will be made in the Bill to be introduced later this year. If it was a major issue or if they made any material difference in the text, there would not be a problem but that is not the case.

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

Amendment declared lost.

Amendments Nos. 5 and 6 not moved.

Bill received for final consideration and passed.