Seanad Éireann debate -
Wednesday, 19 Mar 1986

Vol. 111 No. 15

Free Ports Bill, 1985: Committee and Final Stages.

SECTION 1.

Mr. O'Leary

I move amendment No. 1:

In page 3, line 21, after "1971" to add "or any amendment thereto.".

I will not discuss section 1 now because we will be discussing it after the amendment has been dealt with. I put down this amendment to give the Minister an opportunity to explain to me what appears to be a most extraordinary piece of parliamentary draftsmanship, in that a matter is defined by reference to an external document which is identified as Council Directive No. 71/235/EEC of 21 June 1971. What is even more extraordinary is that there is a footnote, which is quite unusual in legislation, which seems to indicate where that can be found. I would ask the Minister to comment, firstly, on why it is necessary to have a definition for usual forms of handling which relates back to the Council Directive; secondly, why it is necessary to describe it in this fashion with a most extraordinary footnote; and, thirdly, why provision is not being made for a redefinition of the usual form of handling if the Council Directive should change over a period of time. As I understand it, if my amendment was not accepted, any change in the Council directive of that date would mean there would be a necessity for amending legislation in so far as this Bill is concerned. I am anxious to hear what the Minister has to say about that.

Minister of State at the Department of the Taoiseach (Mr. Nealon)

I understand that in cases such as this, where there is a specific Community instrument referred to, that reference is taken to mean the instrument as it stands in its amended condition. As such, insertion of the words "or any amendment thereto" as suggested in the amendment is superfluous. That refers to amendments made or to future amendments to the instrument.

Mr. O'Leary

That could not be right. What we have here is an actual Council Directive of a particular date identified in a particular document. How can that be taken to mean any change in the future in that directive? It is not the one directive; it is a new directive; it is a change in the directive. If this matter comes up for consideration in five years' time, anybody reading this will undoubtedly look at the Community document dated 21 June 1971. They will not look any further because nowhere has there been any reference to any amendment of that document. I cannot see how anybody could come to that conclusion. I doubt if it has ever been judicially tested. If it was I do not think it would stand up — that a reference to a Community document which relates to a specific document passed at a specific time and identified in a specific way is to be taken by some mysterious means to mean not only that decision of the Council but any amendment to it in the future. I think the Minister's advice is wrong.

Mr. Nealon

I have relied of course on advice from the office of the parliamentary draftsman. I am sure the Senator will accept that they are expert in this sphere.

Mr. O'Leary

They are often wrong.

Mr. Nealon

They are experts in the areas of law and accountancy. This is their proficiency. They have advised me that the Bill, as drafted, means that the usual forms of handling for the purpose of the Bill will be the list in EC Directive 71/235 and will embrace automatically any amendment of the list.

Mr. O'Leary

Have they advised the Minister whether that has ever been judicially tested? Is it contained in some statutory interpretation? If it is then I understand it. I doubt that the interpretation Act has been amended — but I may be wrong — to say that any reference in legislation to an EC directive will be taken to mean the most up to date Council directive in that area. I doubt very much that it has ever been judicially decided. There are only two ways one can be sure. One is that a law has been passed by this House and the other House saying that for the future where you refer to a Council directive you mean the most up to date Council directive, or alternatively that it has been judicially decided that that is the correct interpretation. The parliamentary draftsman has no more status than anybody else. Obviously he has an opinion and his opinion must be respected. If we are to accept what the parliamentary draftsman says we would not be here at all. Time and time again the parliamentary draftsmen have been proven wrong in that they have allowed Ministers to bring in legislation which was subsequently found to be unconstitutional. How many times has that happened in the past ten years? In my time in this House it happened on two occasions. On both occasions they were warned that they were treading on the verge of unconstitutional action. I do not understand how the Minister could come to that conclusion.

Mr. Nealon

This provision is not new. It is something the draftsmen have come across before. I accept that the draftsmen may be wrong, from time to time, as the Senator has pointed out. But I doubt if they would consistently make a mistake. They are happy with this situation. They have assured me that EC directive 71/235 will embrace automatically any amendment on that list. This is something the draftsmen are quite used to handling. Obviously they have checked out the legal status of it and have taken great care with it. It is not something that is just thrown in on a casual basis. I am quite happy that this is the interpretation and that no difficulties will arise on it.

Mr. O'Leary

If I could bring it to the Minister's attention so that he can bring it to the attention of the parliamentary drftsman, the footnote which he has mentioned in that section refers to a specific publication of a specific date. It refers to Official Journal No. L143 of 29 June 1971, page 28. How can the Minister say that that is going to refer to something else when it changes unless he indicates that it should not be confined to that specific page of that specific journal in that specific year? I do not understand what the Minister is saying. It appears to me that the Minister has been wrongly advised.

Mr. Nealon

I could not accept that I am wrongly advised. The advice here is absolutely and totally clearcut. This position will embrace automatically any amendments on the list. This is a fairly routine matter. It is appearing in Bills throughout the EC. If there were any particular difficulties, such as the Senator speaks of, they would have emerged by this time. I am satisfied that it is legally tight and that no loophole will arise. I do not foresee any difficulty because the directive will, in current publications contain all amendments made to it in subsequent years.

Amendment, by leave, withdrawn.

Question proposed: "That section 1 stand part of the Bill".

Mr. O'Leary

As regards Community goods incorporating goods from countries or territories not forming part of the customs territory of the Community which have been released for free circulation in the Community, is the Minister aware of the difficulties which the concept of free circulation is bringing about with regard to problems being created by dumping as a result of the operation of the concept of free circulation? Is the Minister satisfied that this definition will not facilitate the situation whereby goods that come into the Community in a general way will be zoned into one section of the Community and distort the market in that section?

Mr. Nealon

The wording of this definition follows the format used in Community legislation generally. The Senator has rightly pointed out that there are different kinds of Community goods. Community goods include goods wholly manufactured and produced in the Community. That is the normal and expected definition. However under Community customs rules, Community goods also include goods manufactured and produced in third countries provided the goods have been released for free circulation, which means that they have gone through the relevant import formalities and that import charges have been paid.

The Senator referred to dumping. This is an issue which comes up from time to time and can create difficulties for many economies. I am convinced that there is nothing in this Bill which will in any way further facilitate dumping which might exist at present. I do not think that the aspect or the difficulty will be enhanced or diminished by this Bill. If remedial action is required as far as dumping is concerned, that is obviously something that will have to be approached in another manner. As far as this Bill is concerned the creation of a free port, governed by this definition of Community goods, will not in any way be detrimental to our general and economic interests.

Question put and agreed to.

SECTION 2.

Mr. O'Leary

I move amendment No. 2:

In page 3, subsection (2), line 27, after "amend" to insert "or revoke".

The purpose of this amendment is to give to the Minister a power which he does not appear to have under section 2. It is possible that he has it under some other section or statutory authority. Has the Minister power to disestablish a free port once it has been established? If not, does he think it is a power he should take? The power being given to the Minister under the Bill appears to be:

The Minister may, with the consent of the Minister for Finance and the Minister for Industry and Commerce, by order amend an order....

The order which he may amend is:

The Minister, with the consent of the Minister for Finance and the Minister for Industry and Commerce, may by order declare that, on and after a specified date, the land enclosed within the limits defined by that order shall be a free port for the purposes of this Act.

What happens if the Minister wants to, while not repealing the whole legislation, change the free port from one portion of the country to another and wants to deregulate a place completely? I doubt if that is covered by section 2 (2). I would be interested to hear the Minister's comments on that.

Mr. Killilea

I do not fully comprehend what Senator O'Leary is saying. It is a Free Ports Bill. The word is plural. Since all the powers are given to the Minister throughout this Bill or to the different Ministries, and to no other person but those, they are in absolute and total control. In my opinion, it is far too much control. Discussion on this Bill, in general, has been concerning the Ringaskiddy project but the very first section of the Bill says you can form free ports in more than one place. If you want to change it from Cork to some other place, all you have to do is create it in the other place and close it in Cork. All the powers are there. It is riddled with far too much power, in my opinion.

Mr. O'Leary

To help the Senator in that regard, of course I accept that free ports can be created in any portion of the country. It is not limited to Ringaskiddy, nor should it be limited to Ringaskiddy.

Mr. Killilea

Hear, hear.

Mr. O'Leary

I am concerned about the fact that if it was thought wise, say, to create a free port in Bantry — it is one place that comes off the top of my head and I have no particular reason for saying it — and if after a period of five years you felt there is not much point in having a free port any more in that area, is there a power to deregulate or to end the creation of a free port? That is the purpose of my amendment, to make the Minister's power in that regard clear, if he has the power; and, if he has not the power, to give it to him.

Mr. Nealon

It is right to say, in reply to what Senator Killilea said at some stage during the debate, that this is enabling legislation for the creation of free ports. While much of the discussion has been about Ringaskiddy, it is not mentioned at all in the Bill. It is overall enabling legislation.

The point introduced by Senator O'Leary in the amendment is an interesting one, and one which we have had carefully and specifically considered. The situation here is that we are not talking about the revoking of a licence of an operator within the free port area. That is an entirely different matter and that power is there with the Minister. This is a question of how do you revoke the while thing, and how do you return to normal territory an area that has become a free port. The situation is that that power does not rest with the Minister. He does not have that power either here or in any other part.

Power to revoke an order is normal in legislation, but in the case of section 2 the view was taken that it would be wrong for the Minister to have such power as it would effectively give him the right to suspend the operation of a free port entirely? Once a free port is established, therefore, an Act of the Oireachtas would be required to abolish it. In view of the huge implications for businesses and the vast investments involved, it is believed appropriate that the power, such as would be given to a Minister if the amendment were accepted, should be reserved to the Oireachtas. On a point of clarification the power is not there for the Minister. Once you have a free port set up, it would then require an Act of the Oireachtas to revoke that situation and return the territory to the previous standing it had.

Mr. O'Leary

I am grateful to the Minister for clarifying that situation. I do not mind the Oireachtas having that power. It is a good thing that the Oireachtas has that power. However, it does lead me on to one further matter. Suppose, for example, you decided to establish a free port, whether it be in Galway, Ringaskiddy or anywhere else, and you put 500 acres into it, for the sake of argument. Suppose you discovered after a period of time that you put the wrong 500 acres in, that you wanted to leave out 250 acres and add another 250 acres; there is no doubt that you could add the other 250 acres, but can you remove the first 250 acres? It is all right to say you can amend it but I do not know if you can amend it to the stage of taking out of a free port area something that is already in there. I do not believe you may have that power. The word "amend" may not be sufficient for that. That is the problem I see. Of course, I understand that any power in that regard should be subject to agreement of the Oireachtas and I am very happy to see that the Minister has come around to the point of view that more things should be put to the Oireachtas. Since the Minister represents the Government, I hope it represents a change of view of the Government in that regard. I wonder whether if you had and wanted to stay at 500 acres or increase it to 600 acres but during the course of that you wanted to drop 250 acres and add a different 250 acres or 350 acres, does the word "amend" cover that? I ask the Minister's assurance in that regard.

Mr. Nealon

I take the point that is made very well by Senator O'Leary on this. As I explained in answer to some queries which are obviously pertinent to the possible setting up of a free port at Ringaskiddy it is not necessary to have all the land mass used in one block. You can have it in sections if you wish. You can by order amend; but that means that you can also, if the particular area is not being used, reduce that area as well.

Mr. O'Leary

If you say you have no power to revoke, you are talking about perhaps five different areas in Ringaskiddy, you want to continue with four of them and drop one, and it is particularly strong where they are separate areas. What you are saying is that the word "amend" means effectively that in respect of that area you can revoke the licence, because that is what you are doing. It may well be that the word "amend" only means that in that context you can expand it but you can never contract it. This is the point I am making, and I am making it to be helpful. I am not making it to be obstructive in any way but to ensure that the Minister and his successor of any party would have the maximum of flexibility in that regard, subject of course to the overriding necessity for the seeking of Oireachtas approval for whatever is deemed appropriate by the Oireachtas to get that approval.

Mr. Nealon

The intention is that the Minister also has the power to reduce. Of course, there may be difficulties if a licencee was operating in the area you wanted to reduce. That obviously would become a difficulty. The implication of "amend" is that it can also be reduced. What he has not got is the power to revoke, to get rid of the territory entirely.

Mr. O'Leary

But he could reduce it to the size of a postage stamp, if necessary. That is effectively what the Minister is saying. He could reduce it to the size of a postage stamp?

Mr. Nealon

I anticipate that difficulties will arise, as happened in Britain, where some of the designated free port areas have not been a success. I am sure that the points we are dealing with here will become relevant either for revoking or reducing. Let us hope that this will not be a question of Ringaskiddy, that it will be expansion all the way — as I am sure it will — into several different areas and may be out further. The intention is that it should amend and that means the possibility of reduction but not of revoking the areas.

Mr. O'Leary

Could I ask the Minister a blunt question? Is the word "revoke" not here because they did not think of it or because they decided it was not necessary?

Mr. Nealon

No, I understand "amend" rather than "expand" was used deliberately.

Amendment, by leave, withdrawn.

Question proposed: "That section 2 stand part of the Bill".

Mr. Killilea

The only question I would put is regarding the size of the apportionment of land at Ringaskiddy. I am rather confused after the last about between Senator O'Leary and the Minister, but I must say Senator O'Leary put the case very clearly. The Minister, in my opinion, was rather confused as to the power he has which is the power to amend the order and the size of that amendment, as Senator O'Leary rightly said, down to a postage stamp size. He makes a joke of the whole scene in my opinion. The only thing I would say is that the figure of land does not seem to be written into any part of the Bill. What is the size of the acreage of land, for example, which is destined for phase one, or whatever it is called, at Ringaskiddy? That would be important for me to know. I am not quite clear about the Minister's explanation and definition of the power to amend and the power of the Oireachtas to amend. The Minister could amend 99.99 per cent of it and the Oireachtas would only have the power to amend .01 per cent. The whole thing sounds rather ludicrous.

Mr. Cregan

The Minister mentioned a number of points and Senator O'Leary raised the question of defining particular areas of land to be designated as free zones. I would like clarification from the Minister that we are prepared to and do consider the defining of other areas rather than just one area. In fact we recognise that there is need for a free zone in one area and a free zone in another area within the port itself. There are no objections to that?

Mr. Killilea

But separate from one another?

Mr. Nealon

I understand from the Second Stage that that was the position. As regards Ringaskiddy it is not specfically mentioned in this Bill. There is one area mentioned in connection with the free port up to 30 acres, but as far as the original comment Senator O'Leary made it is not possible for the Minister to wipe out a free port area entirely. This would have to be by an Act of the Oireachtas. However, it is possible for him to make an amendment.

Question put and agreed to.

SECTION 3.

Mr. Killilea

I move amendment No. 3:

In page 3, subsection (1), line 32, after "Commerce" to insert "and, with the consent of such person or persons who represent companies or Local Authorities participating in the control and management of each Free Port."

I put this amendment down because it is not alone my belief but my party's belief that the authoritarian attitude of the whole Bill was far too strong, with all the powers vested in the Ministry and all the powers vested in one Minister subject to certain conditions from other Ministers. We thought — and it was mentioned by many speakers on all sides — that this Bill was looked at in a wrong way. I am afraid that, after listening to what the Minister said a few moments ago concerning the failure of free ports in certain areas in England that we are right. I remember several Senators making the point that this Bill was too tight and close and that it should have meant what it said, a free port. The attitude towards it should be free. We should not have tied ourselves towards the British law on this matter. A point that I felt at the time, and I still feel very strongly about, was that this free port will fail again because of this attitude of the Government towards the total control of the whole workings and the framework of this free port.

I tried on Second Stage to bring in the IDA. We should have brought into the whole field of free ports the local aspect and the entrepreneurship of the locality in which this port would be. The case was very strongly made, not alone by Members on this side of the House but on the other side also. This amendment does try to do that because I add on to it, as you can see, an amendment to insert "and, with the consent of such persons or persons who represent companies or Local Authorities participating in the control and management of each Free Port". That about covers every single person that we would want covered in it from the IDA to the local authority, through to certain port and docks boards — there are companies rather than local authorities. I still feel — and I am going to press it very hard on the Minister — that before we pass this Act, we correct it and give you an instance of a different type of free port in other parts than we see here in the extreme western part of Europe.

We have, I can verify it because I checked it since, a very fine performance on the island of Cyprus on the northern side, the Turkish side of the island, where the free port is going from strength to strength. It is a free port in the sense that it is free. Private businesses and companies have an opportunity in it. Rather than this dictatorial attitude that is attached to this Bill, everybody who wishes it well in the community and wants to make an investment in it, including many external companies could do so. Senator Cregan made a very valid point about the Japanese cars. I felt over the past week that the Minister might have reconsidered this point of view and that the Minister would have said to himself and suggested to the Government that maybe we have gone astray in the intentions of this, that we can correct it and that the Senators are offering an opportunity to so do. I am, by this amendment, offering the Minister that opportunity. I would hope that the amendment would be accepted in the sense that it is put forward. It is not political in any sense. It is a matter of opinion. It is opinion shared right across this House.

For that purpose, we should agree to this amendment. I think it would be accepted in the other House. It would be better for us to go to the President with a very broadly based Bill where we are implicating all of society who wish to participate in such a project in order to make it a success. It is imperative when talking about Ringaskiddy, about Cork and the problems created there over the last couple of years that we should not alone help but be seen to be helpful in this field. We should stretch out the control a little bit more and I plead with the Minister to accept this amendment, because, at the end of the day, the Bill will be far better and free ports will mean free ports in the purest sense.

Governmental control can still be applied in a certain way, but it should not be, as it were, pounded into this new and fresh idea that is being tried first of all to help Cork. The eyes of the country will be watching it. I would plead with the Minister and the members of the Government to accept it so that the best possible Bill will go from this House.

Mr. Cregan

I do not wish to speak on the amendment to the section. I made a very strong argument last week and I will make it again this week. I see a situation, even within the section, whereby two Ministers are obliged to get involved. Has the Minister recognised or is he prepared to say that there may be consideration by him of the setting up of a local board to run the free port with his consent and that he may be consulted by the board? The Minister is speaking about it being under the control of management or such person or persons. What are we saying here? The harbour board naturally will be involved. Probably somebody else within the private sector will handle the customs side of it. Could we see a situation where we may set up a local body to market it, to sell it and to do what they feel is best for a free zone? As Senator Mark Killilea has said, it is the first and something different. We had many arguments last week and I do not wish to go over them. I wonder are we being too stringent and too tightly controlled?

Another situation would be where: "you may do this if I consider it" or "you may not do this because I do not consider it". You are not going to get it moving as you have too many Ministers involved. Are we prepared to say at this stage that there will be a body or local board set up or is it for the Minister to tell the people who are managing to set up the local board? In other words, the harbour board may be told by a Minister to set up a local board with other people. I would not agree with that. I do not agree with the idea of the harbour board getting total control and saying: "we are going to set up something and are going to have a local body here". The Minister should say it. The Minister should be saying: "yes, I want people involved. I want to set up something with people who are prepared to market it as a going concern, with people who have an interest and are involved in the area, from the small to the big man. It must be good for the area.

The word "free" and the words "free zone" are completely different from what we are already handling. Naturally you need in my view, a massive marketing sales job to do it properly. The Minister readily admitted in one of the sections — might I say in a totally despondent attitude — that there are already some free ports in other countries like Great Britain which are not getting off the ground. The question must be asked, why? I hope we are not taking the same line. That is all I am worried about. I get the impression that we are.

Mr. Killilea

It is a copycat.

Mr. Cregan

We do not want that because we mentioned and came up with the idea ever before they did. Even though the Minister says that some of them are not selling, the fact is that two or three are doing quite well and have got yards ahead of us. I do not want a situation where we are going to have a total of three Ministers saying that you may consider this but I must speak to the Minister for Finance, the Minister for Industry and Commerce and the Minister for Communications. In fairness, if we are talking about something new, let us be a little more objective and constructive. Is the Minister prepared to say that the people in that area must set up their own board to sell their goods?

Mr. Nealon

First, in reply to the various depressing statements made by Senator Cregan just now and Senator Killilea on the grounds that there are too many regulations and that we are dampening down rather than trying to stimulate activity for our proposed free ports, I would like to say that this is a new venture. This is an imaginative idea brought in following the examination by the Cork task force. One of the major originators of the concept was a Member of this House, Senator Cregan. I congratulate him on it. Having accepted this idea, the Government or any other Government bringing in this is not going to go around trying to circumvent it with niggly regulations that will damage its possibility of prospering. We want to see it getting off the ground and prospering. Naturally we will try to do everything we possibly can. It is a fact that this whole idea is governed to a great extent by EC Regulations. There are limitations already laid down and there is nothing we can do about it. Talking of the north Cyprus free port, that is outside the EC. It makes its own rules. Turkey makes its own rules as we heard——

Mr. Cregan

Hamburg.

Mr. Nealon

——Senator Cregan say on Second Stage. The fact remains that no one working within the free zone in Turkey pays income tax. That is one of their own particular rules for encouragement there. On the amendment put down by Senator Killilea, which unfortunately we cannot follow, I see precisely what he has in mind. He has in mind local involvement. What this section does is that it gives power to the Minister to designate an area by order. Senator Killilea's amendment is asking that the Minister should have to have the consent of the people who will be participating. This is before they have been made participants at all. It is illogical in that respect. I know what he is after. I considered if there was any Government amendment that might be introduced but a certain degree of Ministerial control is necessary for the operation and management of the free port.

I would like to make the following point. Take a simple example of people seeking licences in that area. Once it has been designated, by order, and once the management of the free port has been designated then it makes commonsense that the free port company would have a role when consideration is being given to applications for licences and for other things. Take Cork as an example. If the Cork Harbour Board get involved, if they involve some of the local authorities, if they involve local commercial interests in a package of that nature, then they are going to have a free port company. They are going to set it up. Once the order has been made designating the area and once the management of the free port has been appointed, the type of body will to a great extent depend on the local company. Of course, the licences have to be given by the Minister because you cannot have a company setting up activities which which would simply divert economic activity already existing from one part of the country to another. There has to be central control in this respect.

I would visualise a major role for the free port company. The Minister was asked in the Dáil on a previous occasion if he saw it playing a role like that of the Shannon Free Airport Development Company. He did not think that it would be necessary or appropriate bearing in mind the small initial scale of the operation at Ringaskiddy and the range of State agencies already there catering for the promotion of such an area as this. We must remember also that we may have free ports in other parts of the country. They need not necessarily be sea ports; they could be airports. Depending on the viability and economic activity generated by Cork for the financial wealth of the country, jobs in particular, obviously we are going to have a look at other areas. Indeed, there are other areas waiting in the queue. I am sure Senator Killilea will probably be mentioning before the end of the debate, his own area, the Connacht Regional Airport, as a possibility. I have heard considerable talk about it in recent times. Perhaps, Galway and Shannon have made their case already in these debates.

On this particular matter I do not think it makes sense to dilute the control the Minister has by making it necessary for him to consult or seek the consent of a person or persons designated in the order. This same amendment was rejected on Committee Stage in the Dáil and the argument advanced then against the amendment still holds good. I see precisely what he has in mind. Once the initial free port has been set up — take the case of Ringaskiddy — the free port company will be the mainstay of the activity and be an important factor, giving a key position to the local interests there.

Mr. Killilea

I listened very carefully to what the Minister said. He can contradict himself at times. I do not envisage an advisory board. This country is poisoned with advisory boards. They have no decision making powers. They make recommendations, they pray they might be listened to, but that is the end of it. Advisory boards should be debarred. I say that with honesty. I have seen so many of them. I have seen them in the Department of Posts and Telegraphs. I have seen them in the health boards today. It is a joke, to say the least of it. You either have the power to do something or you have not. There is nothing in this Bill which states that this board will have the power to grant licences——

Mr. Nealon

No, consulted about it. A consultative role.

Mr. Killilea

"Consultative" is a very nice word. I would not be so alarmed about it but for the Department of Finance. Whether you have a good or bad Minister for Finance, the rule of the masters lies within that Department. Therefore it is not easy to hope that what the Minister says is what you will get at the end of the day, because the Department of Finance is great for decoying. The people in Cork are crying out for work and looking for entrepreneurship. They have been severely let down in the last two years so far as industry is concerned. Industry in Cork was the envy of every person who ever drove along the road from Cork city as far as Cobh because there was nothing but work plant after work plant, thousands and thousands of people at work in the finest industries one could see. It is not the same today. It is a very sad sight. We want to do something positive about it, but in this Bill we are giving power to the Minister, who must have the consent of the Minister for Finance and the consent of the Minister for Industry and Commerce. Any purchaser would want to have a look at the commodity he is buying, but when he sees the restrictive nature of this, he will be reluctant to buy. In my remarks on Second Stage I said that this was a copycat of what went on in Britain. I have made further investigations since and it is a copycat of what is going on in Britain, and that is not successful.

To come in here and tell us that it is EC regulations which tell us what to do is the greatest load of nonsense. Hamburg is in the European Community, but there are no EC directives to tell them what to do: they will do as they feel and dare anybody stand in their way — and, rightly so, because they have been a success. I do not think we can hide under so-called directives. If the directive does not suit us, we should be adjusting it to suit ourselves as a nation. The aim of political life is to achieve the possible and try to achieve the impossible. If we keep that in front of us as a guideline we will be doing well.

I am not saying the Minister should not have the overall power and have people responsible to him. But I will read section 4 for you:

The Minister may, after consultation with the Minister for Finance and the Minister for Industry and Commerce, grant or refuse to grant to any person a licence authorising the carrying on with a free port of any trade, business or manufacture.

Can the Minister explain where he is having consultations on that section of the Bill with anybody other than with the other two Ministers, because it is not there? There is no point in saying, in regard to the granting of licences, that a consultative body has a say in it. You and I know it: Ministers will come and Ministers will go, but the Civil Service will go on forever. I guarantee the Minister that, if he is about to make a decision, it will not be long until the Act is fired at him and his hands will be tied.

I would ask the Minister to accept my amendment in the spirit in which I move it: so that there can be a contribution from local entrepreneurship to provide the marketing expertise so necessary to sell it. It would be a far better Act, and the people in Cork have the ability to prove it so.

Mr. Cregan

On the same point, but I would not go as deep as Senator Killilea. However, I understand the points he has made about other free ports and particularly those in the European Community. I have seen one of them, and I do not understand why we should be standing by the rules. We are in the Community, but there are rules to obey and there are rules to break. I am not going to bring about a situation in Cork where we are going to stand idly by. This Bill provides us with a great opportunity. Are we going to have a situation where somebody somewhere says "You cannot do this because of Community rules" when within the same Community no rules are binding? That is why they are getting the work and they make no apologies to anybody.

In section 3, you are saying that the management and control of free ports can be allocated to a person or persons. If you are giving the control to them, why are you saying that they must then always have the consent of three Ministries? If there was only one it would not be so bad.

Mr. O'Leary

That is not what it says.

Mr. Cregan

Section 3 (2) says:

The Minister may, with the consent of the Minister for Finance and the Minister for Industry and Commerce, by order amend or revoke any order made under the section.

Mr. O'Leary

May I point out to you what it says? It talks about the consent of these people at the time the Minister is making the decision about the control and management, but after that it passes out of the control: it is not the continuous consent of these two people. The Senator should read what it says. It says:

Each free port established under this Act shall be under the control and management or such person or persons as may be designated by order by the Minister with the consent of the Minister for Finance and the Minister for Industry and Commerce.

Imagine the situation when this legislation is passed, the Minister will have to decide to whom he is going to give the control of the Galway — or Ringaskiddy — free port. That is the decision he will have to take. He may decide that he will give the control to a group of individuals or to a company. The Minister will have to get the consent, in writing, of the Minister for Finance and the Minister for Industry and Commerce. When he gets that consent, they have the control and they do not need the consent of the Minister for Finance or the Minister for Industry and Commerce to do anything else.

What Senator Killilea is suggesting is that when the Minister decides to give control to a group — for example, in Ringaskiddy, he is going to have to decide to give the control and management of the free port to some group — that he should look for the consent of the Minister for Finance, the Minister for Industry and Commerce, the consent of local authorities participating in the control and management of each free port and the consent of other persons who represent companies in the free port. In other words, what the Senator is suggesting is that you add to the number of people from whom you must receive consent. This section deals with one particular thing; it is handing over control to a group of individuals, that is all that is covered by the section. The Minister is suggesting that before he makes that decision he must consult with and get the consent of the Ministers for Finance and Industry and Commerce. What Senator Killilea is suggesting is that the Minister must get consent of the Ministers for Finance and Industry and Commerce, of local authorities and of all others who are involved in the management of every freeport, who are not yet picked. What the amendment is proposing to do is to add an additional group of people — a group of people who cannot yet be identified — whose consent is necessary before the decision under the section can be taken.

Mr. Nealon

And theoretically, a rival consortium.

Mr. O'Leary

Exactly. Supposing, for example, that the Minister would have to get the consent of the rivals? It does not make any sense. The amendment is only adding to the difficulties, and not helping.

I understand what Senator Killilea is getting at — that the local authorities should have some say in the matter. I accept that. Unfortunately, the amendment adds to the problem; it does not help the problem. If I had thought of an amendment I would co-operate with any Senator in putting one down to achieve that objective. Unfortunately, the time has gone when we can do that, Perhaps it could be done on Report Stage. The reality of the situation is that at the moment where the Minister wants to designate the control and management to a person or a group of individuals he will have to make up his own mind and he will have to get the consent of the Ministers for Finance and Industry and Commerce to that act — and that is all. There is no more consent necessary after that. He has to get an initial consent. What the amendment suggests is that, in addition to getting the consent from the two other Ministers, that consent will be necessary from the local authorities and other people participating in the ports in the area. That is only adding further confusion to this and it does not solve the problem. This is a genuine problem that is before the House.

Mr. Nealon

And not yet designated. This order is only designating the operation.

Mr. Cregan

Senator O'Leary has now admitted that the Minister is prepared to give control and management to somebody to run the free port. Is the Minister prepared to consider the idea of setting up a local body to run the free port? The management of a free port will naturally go to the harbour board. I presume that they will be the strong contenders. We already have a harbour board in Cork in which there is local authority participation, but I feel we should be doing better with it. The harbour board is composed of business people who are involved in the workings of the port — rightly so, and I have no objections to this. The facts are that if the management and control are granted to this board, can we feel that we are good enough as a marketing body? It is all very well to say that we will manage it and control it, but will we sell it? This is the point. Is the Minister prepared to consider the idea of setting up people to sell it? For instance, there was an argument in Cork in late 1984, when we were involved in trying to sell Cork in 1985. We created the Cork 800, which was a very good idea. We solved our problem. That is marketing. That idea sold very well and a lot of work went into it. Because of Cork 800, we considered the idea of an enterprise board for Cork in 1986 to sell Cork again in the years ahead. We had a lot of people on the board. It was a 32-member one with an executive board of 15 or 16 people. I am not saying that the same thing should happen in regard to the free port, but it must be sold and marketed.

Mr. Killilea

I have one question to put to the Minister. Could he define if it is going to be in a person or persons, if what he said in reply to Senator O'Leary is going to be the case? This is not the way that I interpret it. If it is going to be that way, will the management of the free port or of any other free port to follow — this will be the first example and things will be learned from it — be on a yearly basis, a five yearly basis, or a ten yearly basis? How many persons will be involved in the management? It is not just good enough now to say that the Minister would only have to get the consent once.

Mr. Nealon

In that respect, as designated by section 3, the control and management is granted to a person or persons. This is obviously likely to be a number of interests. To give an example of what is happening now in Ringaskiddy in Cork, what I would hope is that a consortium of local interests would put a detailed package to my Department seeking to be designated under the section. The consortium would also propose the land area to be designated and to be declared the free port area under section 2.

Mr. Killilea

That is fine.

Mr. Nealon

As I said in my earlier remarks, the Cork Harbour Commissioners are seeking local partners in this regard. That is not to suggest that proposals should not be made by other people which would be considered by the Minister. He would see which is the best package coming forward in the interests of Ringaskiddy free port and in the interest of the local Cork community. The Minister would examine that particular situation.

Mr. O'Leary

The county council would need to come into it.

Mr. Nealon

Of course, or the Cork Harbour Commissioners could come in conjunction with the county council.

Mr. Killilea

And the Industrial Development Authority.

Mr. Nealon

I do not envisage the Industrial Development Authority getting involved. I shall deal with that in a moment as regards the packaging of it. The chances are that the person or persons designated under the section will have a significant local involvement. I agree with this and of the absolute necessity and the value of local involvement. This is highly desirable.

On the further point which Senator Killilea has raised, once a person or persons has been designated by order then that remains the case until it is revoked by order and they opt out of the situation. There is no time limit as such. It is only right to say at this stage that, irrespective of what Senator Killilea may say, and perhaps Senator Cregan as well, who brought the Turkish ideas to our attention, the fact remains that, whether we like it or not, we must conform to the EC regulations. There is no way around this. We have got to conform to them. It is not our wish, but they exist, and this is the regulation for any free ports being established. Naturally, there is a considerable similarity between what we have on the ground and what the British have put on the ground for the simple reason that we are both conforming to the existing set of very strict regulations. Naturally, where there is any flexibility, we would be interested in that, where the ingenuity of the Cork people in the Ringaskiddy free port or the people in any other free port around the country in the future can show this. But we will have to conform to the rules as they exist at the moment in the entire customs free zone of the European Community. It is important because the Government, through the Minister for Finance and the Revenue Commissioners, and the Oireachtas, have a responsibility to the EC for the administration of the Community's custom regime and for the effect of VAT concessions on the Exchequer and things of that nature. Therefore, I think it would be inappropriate that powers reserved to the State in this Bill in those particular respects could be exercised with the consent of non-governmental bodies. However, I believe that the local operating company will become the absolute key factor in this. In Cork, as things are emerging, it will have a strong and perhaps total local representation. Naturally the Minister is anxious to see all possible offers that come forward. However I know what Senator Killilea is driving at. I think there is an illogicality about the amendment as put down which was so very clearly delineated by Senator O'Leary in his remarks. This is giving the Minister power to make the order with the consent of the other Ministers. At this stage no person has been designated and I do not see how then you could seek the consent of such person or persons who represent companies or local authorities participating in the local operation of each free port. I have given this a lot of consideration, but I regret it is not possible to accept the amendment.

Amendment, by leave, withdrawn.

Section 3 agreed to.

SECTION 4.

Mr. Killilea

I move amendment No. 4:

In page 3, line 39, after "manufacture." to insert "If a licence is refused to any person, such person shall have the right of appeal to the Courts."

Acting Chairman (Mr. Browne)

This amendment is being discussed with amendment No. 5.

Mr. Killilea

I think the amendment speaks clearly for itself — that if a licence is refused to any person such person shall have the right of an appeal to the courts. I do not have to elaborate on that. That is a reasonable request. I will not get political about it except to say that not too long ago we saw that favouritism could come into certain appointments and certain applications made for certain things. We should guard against such acts by any Government. We are supposed to be living in the era of honesty and integrity, as announced by a certain section of parliamentarians. I have said here on several occasions that I have grown to hate those two words, because those who speak about honesty and integrity are insinuating that other politicians might not have such a sense of honesty and integrity. There is an old phrase — judge not and you shall not be judged. In this instance, since we are in the era of honesty and integrity, we should at least be seen to be impartial about it.

I have faith in the courts in this land. from the District Court upwards. If the lower court is not satisfactory, there is an option within the law to appeal to a higher one. Every person should be given a fair crack of the whip. Whatever Senator O'Leary might have said about giving consent only once, this time, in regard to the granting of licences after consultation, it is slightly different. You can have many consultations about many things, but I would like to see enshrined in all our legislation faith in the fairness of the courts.

Mr. Nealon

Consideration has been given to these two amendments. Amendment No. 4 deals with the power of the Minister for the granting or deciding on applications for licences. It is thought best that this must rest with the Minister responsible for the legislation. It would not be right if control over the type of applicant or business licensed to operate within the free port should rest elsewhere than with a Minister, in view of the implications for the Exchequer, the operations of the Revenue Commissioners for industrial location policy inherent in the licencing function. There is also the question of relocation of industry rather than the generating of new industry.

As regards amendment No. 5, which is on section 7, this is the question of the power of the Minister to revoke a licence at short notice. Normally the Minister would exercise his powers under this section only after the conviction of a licensee of an offence under section 6 (2) of the Bill. However, there is always the possibility of a protracted interval between detection and conviction. As a free port would be an area free from normal customs controls, substantial losses of revenue could occur in the interval. To deal with the relevant points that Senator Killilea has made — the question of an appeal to the courts is the import of both of his amendments — ministerial decisions under these sections may be challenged in the High Court as being not in accordance with natural justice or on other similar grounds. This is the position that obtains generally in law as regards ministerial decisions. In general, the right of appeal is not a feature of legislation, not usually written into it; it would be bad law to provide for a right of appeal where such exists in law generally. Furthermore, if the amendment were accepted it would then tend to undermine the position in relation to other legislation where a similar provision does not specifically exist.

Amendment put.

The Committee divided: Tá, 18; Níl, 24.

Tá

• Cassidy, Donie.
• de Brún, Séamus.
• Ellis, John.
• Fallon, Seán.
• Fitzsimons, Jack.
• Hanafin, Des.
• Hillery, Brian.
• Honan, Tras.
• Hussey, Thomas.
• Kiely, Rory.
• Killilea, Mark.
• Lynch, Michael.
• Mullooly, Brian.
• O'Toole, Martin J.
• Ross, Shane P.N.
• Ryan, Brendan.
• Ryan, William.
• Smith, Michael.

Níl

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Burke, Ulick.
• Connor, John.
• Cregan, Denis (Dino).
• Daly, Jack.
• Deenihan, Jimmy.
• Durcan, Patrick.
• FitzGerald, Alexis J.G.
• Harte, John.
• Higgins, Jim.
• Higgins, Michael D.
• Hourigan, Richard V.
• Howlin, Brendan.
• Kelleher, Peter.
• Lennon, Joseph.
• McDonald, Charlie.
• McMahon, Larry.
• Magner, Pat.
• O'Brien, Andy.
• O'Leary, Seán
• O'Mahony, Flor.
• Quealy, Michael A.

Tellers: Tá, Senators Seámus de Brún and W. Ryan; Níl, Senators Belton and Harte.

Amendment declared lost.

Section 4 agreed to.

Sections 5 and 6 agreed to.

SECTION 7.

Mr. Killilea

I move amendment No. 5:

In page 4, subsection (1) (a), line 20, to delete "or" and substitute "provided always that an appeal may be made to the Courts, or".

Mr. Cregan

I understood we were taking amendments Nos. 4 and 5 together.

Mr. Killilea

As far as I am aware there was only a vote on amendment No. 4, section 4.

An Cathaoirleach

Yes, but there may be two separate decisions, Senator. In fairness to the Senator he raised that matter with me before.

Mr. Killilea

The only reason I am pressing amendment No. 5 is I believe that anybody refused a licence should have the right to appeal to the courts. The rights should not be all on the Minister's side.

An Cathaoirleach

This amendment has already been discussed with amendment No. 4. Is the Senator withdrawing the amendment?

Mr. Killilea

I am not. I am pressing the amendment, Sir.

Question put: "That the words proposed to be deleted stand".

The Committee divided: Tá, 26; Níl, 18.

Tá

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Burke, Ulick.
• Connor, John.
• Conway, Timmy.
• Cregan, Denis (Dino).
• Daly, Jack.
• Deenihan, Jimmy.
• Durcan, Patrick.
• FitzGerald, Alexis J.G.
• Fleming, Brian.
• Harte, John.
• Higgins, Jim.
• Higgins, Michael D.
• Hourigan, Richard V.
• Howlin, Brendan.
• Kelleher, Peter.
• Lennon, Joseph.
• McDonald, Charlie.
• McMahon, Larry.
• Magner, Pat.
• O'Brien, Andy.
• O'Leary, Seán.
• O'Mahony, Flor.
• Quealy, Michael A.

Níl

• Cassidy, Donie.
• de Brún, Séamus.
• Ellis, John.
• Fallon, Seán.
• Fitzsimons, Jack.
• Hanafin, Des.
• Hillery, Brian.
• Honan, Tras.
• Hussey, Thomas.
• Kiely, Rory.
• Killilea, Mark.
• Lynch, Michael.
• Mullooly, Brian.
• O'Toole, Martin J.
• Ross, Shane P.N.
• Ryan, Brendan.
• Ryan, William.
• Smith, Michael.

Tellers: Tá, Senators Belton and Harte; Níl, Senators W. Ryan and Séamus de Brún.

Question declared carried.

Amendment declared lost.

Mr. O'Leary

I move amendment No. 6:

In page 4, between lines 22 and 23, to insert a new paragraph as follows:

"(c) a company of which the licensee is an officer is convicted of an offence against the Customs Acts.".

The purpose of section 7 is to allow the Minister to revoke a licence if he is satisfied that there has been a breach of condition of the licence, or if the licensee is convicted of an offence under the Customs Act.

In considering this section, I noticed that many of the activities carried on by people which give rise to offences under the Customs Act may, from time to time, give rise to a situation where the company itself would be guilty of an offence under the Customs Act. Therefore I propose that we would add to that a subsection with the following effect: that, in addition to the two circumstances in (a) and (b) where the Minister may at his discretion revoke the licence, a third one would be added which would have the effect of ensuring that if a company of which the licensee is an officer — in other words if the company which the person was a director or a secretary of was convicted of an offence under the Customs Acts — then the Minister would be in a similar position, not that he would have to revoke the licence but that he could in the circumstances consider the question of revoking the licence at that stage. It improves the legislation and I am confident that the Minister will accept it.

Mr. Nealon

It is anticipated that, following the pattern that has been established with customs-free airports, licences would invariably be issued in the name of companies rather than of individuals. In these circumstances the type of situation envisaged by the proposed amendment will not arise in practice. In any event, it is considered that legal difficulties could ensue if the amendments were to be accepted. For example, the suggestion that an individual can be penalised in relation to his own separate activities vis-a-vis the free port because a company of which he happens to be an officer is convicted of a customs offence in relation to its activities along a land frontier might be open to challenge in the courts. For this reason it is felt that the amendment might go too far. I believe the amendment is unnecessary in this case. The section, as laid down, clearly covers all eventualities. If we proceeded along the lines suggested by Senator O'Leary we might, in fact, be going too far.

Mr. O'Leary

Nowhere in the Bill does it suggest that a licensee must be a limited liability company. It may well be that the practice might turn out like that. I am seeking to cater for the situation where the licensee would be an individual or would be some other kind of body — for example, harbour commissioners — but that the company or individual involved would be convicted of an offence against the Customs Acts. That is an offence which might not take place within the free port at all. He might be convicted of an offence somewhere else. I do not see any good reason for not accepting the amendment but I am not pressing the amendment.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Section 8 agreed to.

SECTION 9.

Mr. O'Leary

I move amendment No. 7:

In page 5, subsection (2), line 2, after "offence" to insert "against the Customs Acts".

Mr. O'Leary

This is an amendment which I have no doubt the Minister is going to accept. In view of the positive nature he has adopted towards all the remainder of the amendments I have no doubt he will adopt exactly the same attitude towards this amendment. The purpose of the amendment is to make the offence of carrying on business within the port area without a licence an offence under the Customs Acts. The effect of that is that it would in itself become an offence in respect of which the Minister might revoke a licence, if a licence existed, or at least would be a strong indication to the Minister of the person's unwillingness to obey the rules and regulations which are necessary for the official running of these free ports. There is no new offence being created by my amendment. It is merely ensuring that the offence which is being created by section 9 is for the purpose of this Act considered an offence under the Customs Acts with the corresponding obligations and opportunities which that gives to the Minister.

Mr. Nealon

The offence provided for in section 9 is prima facie an offence against the Free Ports Bill when enacted. The offence in question is not one against the Customs Acts and so the amendment here would not be appropriate. Section 17 (2) provides that the Act so far as relating to customs, shall be construed together into the Customs Acts. In the normal course, however, section 9 would not normally fall to be construed with the Customs Acts.

Mr. O'Leary

Because it is to be construed with the Customs Act, is it, in fact, an offence under section 9? Will that be an offence against the Customs Act, yes or no?

Mr. Nealon

This one would not normally fall to be construed with the Customs Acts. The purpose of section 9 is to prevent the carrying on of an unlicensed business within a free port. This offence provided for in section 9 is an offence against the Free Ports Bill when enacted.

Amendment, by leave, withdrawn.

Section 9 agreed to.

Section 10 agreed to.

SECTION 11.

Mr. O'Leary

I move amendment No. 8:

In page 6, between lines 19 and 20, to insert a new subsection as follows:

"(2) An officer of customs and excise must, before exercising any powers under subsections (3), (4) or (5) of this section, inform the person in control of the vehicle, ship, boat, hovercraft or aircraft of his wish to exercise such power."

This is an amendment which I am quite sure the Minister will have no difficulty whatsoever in accepting in view of the constructive attitude he has adopted in regard to all the remaining amendments. I have no doubt he will adopt the same constructive attitude in this regard. The purpose of this amendment is to fetter in some small way the most extraordinary power which is given under section 11. The power given under section 11 is that any person in that area "driving or in control of, a vehicle in motion within 32 kilometres of a free port shall stop the vehicle on being required to do so by an officer of the customs and excise". In other words, I could be coming out of my house on a Tuesday morning, because I am within 32 kilometres of where the free port will be, and a customs officer can hold his hand up and say "You must stop. I want to search your car". The thing is asinine. First of all, the 32 kilometres in distance is crazy. The power is obscene and the manner in which it is drafted is grotesque. The purpose of my amendment is in some way to ameliorate that problem by introducing a similar subsection. I am still allowing him to stop you under subsection (1):

The person driving or in control of, a vehicle in motion within 32 kilometres of a free port shall stop the vehicle on being required to do by an officer of customs and excise.

That would not be affected by my amendment. But what he would have to do then would be covered by my amendment. "An officer of customs and excise must, before exercising any powers under subsection (3), (4) or (5) of this section, inform the person in control of the vehicle, ship, boat or hovercraft or aircraft of his wish to exercise such power". He must tell the man what he is about. He cannot just say "I am from the customs and excise and I want to search your car". He must say "I am from the customs and excise. You are within 32 kilometres of a free port. Under section 11 of the Act I have the power to stop you and under the succeeding sections I have the power to search you, and I want you to do that". The only thing my amendment is doing is imposing on him a statutory obligation to explain to the person what he is doing and why he is doing it. It may well be that he already will have that implicit obligation in any case. I am not satisfied with that. All I am saying is that, before giving officers of the customs and excise the power to stop me when I come out my front gate in the morning, if they do stop me they have to tell me why they are stopping me. If they want to search my vehicle, if they want me to truthfully answer all the questions put to me — in other words, what age is your wife? — in relation to the journey or the goods of the vehicle, where did you go to and where are you coming from, I think it is reasonable that before that you would find out that they are talking about the free ports legislation and that you would not be confronted with a situation where an officer of the customs and excise would stop you, that you would be asked questions and put under a statutory obligation to answer them, ignorant of the fact that you were under an obligation because you did not know which section or which Act was obliging you to answer the questions.

The thing is asinine in the extreme. All I am trying to do is make it slightly less asinine. I am trying to ensure that the officer of the customs and excise who is exercising the power is under an obligation to explain it to the person. An officer of the customs and excise, before exercising any of the powers, must inform the person in control of his wish to exercise such powers. In other words, he has to say to him "I have powers under section 11 (3), (4), (5) of the Free Ports Act to search your vehicle and I want to do that". At least you know what the man is doing. He is not just stopping you, telling you get out of your car and to tell him where you are coming from and where you are going to and did you sleep with your wife last night or did you sleep with someone else's wife, in so far as that is relevant to the operation of free ports.

Mr. Killilea

It is a good job all the Senators are not here.

Mr. O'Leary

Indeed. That is all I want, and I am confident that the Minister will see the wisdom of what I am proposing. I am confident he will accept the amendment. I am confident that he will go back to the other House and persuade the Members that it is a good amendment made by the Seanad, that it should not be abolished and that as a result of that the Minister will have made a friend for life and the House itself will have shown the importance it attaches to the freedom of the individual because this is what we are talking about under this section — the freedom of the individual.

These things must be exercised in a reasonable fashion. We had day upon day of discussion. We were talking about the Criminal Justice Act. It was right and proper that we should have these days of discussion. We are giving similar powers, even bigger powers to an officer of the customs and excise who is not a member of the Garda Síochána at all. He is just an ordinary man like you or me dressed up in a little bit of gold braid and we are giving him the power to stop a person within 32 kilometres of the free port and ask him if he was sleeping with his own or someone else's wife last night, if that is a relevant question under the free ports legislation, or any other question he considers relevant. It can be made relevant with the ingenuity of customs and excise men, for which they are rightly famous.

For all those reasons I am confident of the support of the Minister in this amendment. Indeed, if the Minister thinks that my amendment is not strong enough, and if he wants to take the section out altogether, or to amend the section, I will give him every support and help in doing that. I am not stuck up at all. I do not mind whether these individual words are used or other words. Some control on the exercise of these powers should be written into the legislation. I am sure the Minister will wave his hand grandly now and tell us that that is all catered for under our constitutional rights. It may well be, but not only should it be catered for under our constitutional rights it should be catered for in black and white. At the same time as you are giving the person the power, you should indicate to them that they must exercise that power reasonably. For that reason, I am confident of the Minister's support on this amendment.

Mr. Nealon

There are two points before I start answering specifically. The Senator seems to be giving the impression that I take some pleasure in not accepting, or in refusing his thoroughly researched amendments. Quite the contrary——

Mr. O'Leary

Not only one, any amendment. It does not matter——

Mr. Nealon

I gave a lot of thought to all of these. I regretfully had to reject them. I would have been very pleased if it were possible to incorporate them because I believe in this constructive input during the course of debates in either House. I also must commend the Senator for having succeeded in introducing a sex element into the Free Ports Bill. It is the only possibility that this piece of legislation will ever get on page 3. Senator O'Leary has succeeded in doing that now.

But regarding the specifics, I would like to point out that precisely the same regulation as is in this section operates in the Customs (Free Airport) Act, 1947, which is 40 years on the ground. The Leas-Chathaoirleach, Senator Tras Honan will be able to verify that that has caused no undue difficulties in the Clare area and within 20 miles or 32 kilometers of the free airport zone.

To deal with the argument involved, in so far as the present subsection is concerned it would normally — admittedly, not written into it — be the practice of an officer of the customs and excise to tell the person in charge of the vehicle of his intention to carry out a search and examine and take account of the goods in the vehicle. Of course, the customs officer as such has certain powers vested in him by virtue of his commission and under the various Acts. But the problem that arises here is that if Senator O'Leary's amendment was accepted the officer would not be in a position to search the vehicle if it were unattended. This would be most undesirable and would create difficulties. That is the difficulty that we found about this particular amendment. It is appropriate that the officer should have reasonable powers of search, even while a vehicle is unattended. Then there is the other difficulty, which anyone who ever listened to or sat through court cases on customs offences along the Border is aware of, of a vehicle being abandoned very quickly once stopped by a customs officer. If the particular amendment went through and the person in charge had left, then the customs officer would naturally not have the opportunity of stating his intentions about this and searching the vehicle.

Mr. O'Leary

I do not care what happened in 1947. I was not here in 1947. I am here in 1986 and I have got to make sure that the legislation passed in 1986 is right. The year 1947 does not wash with me at all.

Amendment, by leave, withdrawn.

Section 11 agreed to.

Sections 12 to 17, inclusive, agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.