Seanad Éireann debate -
Thursday, 26 Oct 1995

Vol. 144 No. 18

Fisheries (Amendment) Bill, 1995: Committee and Final Stages.

Sections 1 and 2 agreed to.

SECTION 3.

Mr. Daly

I move amendment No. 1:

In page 5, lines 1 to 5, to delete subsection (7).

The purpose of moving this amendment is to clarify the position regarding the continuation in office of a commissioner after the two year period expires. The section states the Minister can appoint a commissioner for only two years without making a new order but it appears he may make such orders a number of times. The Minister's intention may be that the commissioner will not be in place for more than two years but by seeking another order he may extend it for another two years and thus continue doing so indefinitely. This is unwise and I therefore propose we delete the subsection giving the Minister the power to re-appoint the commissioner when the two year period expires.

The Minister may be able to assure us about this because it is desirable that a commissioner should be in place at least until the term of office of the board expires, which may be any time between six months and a year and a half, but the commissioner should not be in place for two years. If the Minister's intention was to re-appoint a commissioner who had not succeeded in completing his or her task in the two year period, a person other than that commissioner should be appointed to that position.

I am anxious for clarification on this and Senator Dardis raised the same point. A commissioner might continue indefinitely in a situation where it might not be possible to resolve a matter. The board would be in the unsatisfactory position of having some functions while the commissioner had others, and he could continue indefinitely even after a new board was elected. This is confusing and I hope the Minister finds a mechanism to resolve it if my amendment is not satisfactory.

Mr. Fitzgerald

I second the amendment.

An Cathaoirleach

Committee Stage amendments do not have to be seconded. I take it the Senator supports the amendment.

Minister of State at the Department of the Marine (Mr. Gilmore)

I assure Senator Daly that the intention of the Bill is not to continue indefinitely the appointment of a commissioner. We want to ensure the term of office of any commissioner is as short as possible and only for the period required to carry out a particular function. The Bill provides for two circumstances. Section 3 (5) provides that the maximum period of time for which a commissioner may be appointed is two years. Section 3 (6) provides for the extension of a commissioner's term of office, provided that is done at least six months before the expiry of the two year period.

Section 3 (7) is inserted on advice from the Office of the Attorney General, to provide for a circumstance where a separate appointment might be required in relation to the same issue. For example, if the appointment of the commissioner was made within months of the expiry of the normal life of a fisheries board, a subsequent board election took place but the circumstances justifying the appointment of a commissioner continued to obtain after that election, it may be necessary to have a separate appointment, so section 3 (7) provides for that.

The safeguard is that there is a requirement on the Minister to bring before the Oireachtas both extensions of time for and separate appointments of commissioners. There is no provision in the Bill enabling the Minister simply to sign an order prolonging the life of the commissioner and the intention is far from that.

Mr. Daly

I am slightly more confused now than I was originally. I am not clear whether the intention is to have a commissioner overlap between elections. Is it intended to use this provision to appoint a commissioner prior to a board election — the elected board not having all its functions — and then allow the commissioner to continue in tandem with the board once elected? The Minister may be endeavouring to clarify the position in this legislation but he is making it more confusing. It would be clearer if he removed this subsection. My fear is that this can continue indefinitely and where new boards are elected commissioners might supersede them, continuing under instruction from the Minister.

At the outset the Minister indicated the intention of the legislation was to put in place a simpler mechanism to do something quickly and effectively which cannot be done under existing legislation. The existing legislation was likely to be challenged in the courts and would have been found to be ineffective in terms of dealing with the situation. However, this measure further complicates an already complicated situation. Rather than helping the Minister, it will create further problems and it too is likely to be challenged in court. I am not sure whether the Minister follows the train of my argument but the position could be clearer and simpler.

Mr. Gilmore

To make it simple, the provision covering the appointment of a commission is intended to arise only in exceptional circumstances. To underline the exceptional nature of those circumstances, a commissioner can only be appointed by the Minister on his own initiative where he has gone before the Houses of the Oireachtas, put his case for such an appointment and the Houses of the Oireachtas have approved it. It is not the case that a Minister can appoint a commission at will.

Two sets of circumstances arise, one of which involves the position when the life of the commission needs to be prolonged. Subsection (6) deals with that case and again the Minister is required to go before the Houses of the Oireachtas. The second circumstance is where a separate appointment of the commission may be required. In this instance also the Minister is required to go before the Houses of the Oireachtas.

Where a commission is being appointed, the Minister must bring the appointment proposal before the Houses of the Oireachtas. This will ensure the provision only comes into play in very confined, limited and exceptional circumstances. Senator Daly's fear that this is some type of vehicle which will enable the Minister to send commissioners here, there and everywhere into fisheries boards is unwarranted. This cannot and will not happen. It applies in very exceptional circumstances and only following approval by the Houses of the Oireachtas. The parts we are dealing with address the circumstances for extension or separate appointments and they must also be brought before the Houses of the Oireachtas.

An Cathaoirleach

Is the amendment being pressed?

Mr. Daly

Before we make a decision in that regard, will the Minister indicate whether the new appointment will involve a different person or the same person?

Mr. Gilmore

It could be either. However, each case must go before the Houses of the Oireachtas.

Mr. Daly

Would that be by way of an order of the House?

Mr. Gilmore

No. Perhaps this is where the confusion arises. Section 9 provides that the appointment of the commissioner must be done by way of the Minister bringing the order before the Houses of the Oireachtas and having it approved before it can be given effect. Senator Daly is referring to the normal way in which secondary legislation is laid before the House, which involves a 21 day period. In this case there is a requirement for a positive motion to be put to the Houses of the Oireachtas. The Minister must come before the Houses and get approval.

There is one exception, which provides for a situation if circumstances arose during, for example, a prolonged recess of the other House. There is a provision whereby approval must be secured subsequently. In all cases the specific approval of the Houses of the Oireachtas must be obtained for these appointments.

Mr. Daly

The Minister's response confuses me further because section 9 (5) mentions 28 days. I have not gone into this in great detail but it appears the appointment can be made regardless of whether the Houses of Oireachtas approve. Is that the case? I would prefer this to be deleted and a different mechanism inserted.

An Cathaoirleach

We are dealing with section 3.

Mr. Daly

It is relevant.

Mr. Gilmore

The subsection to which Senator Daly referred is the exception to the rule, which is that the proposal must be brought before the Houses of the Oireachtas and approved. However, if, for example, there was a prolonged recess of the House and circumstances arose where the Minister had to act quickly, there is provision whereby the order can be made, but it still must be brought before the Houses of the Oireachtas. In all circumstances the proposal must be brought before the Houses of the Oireachtas.

Mr. Daly

It can be made regardless of whether the House approves.

Mr. Gilmore

The House must subsequently approve it. If it is made in those circumstances, it must return to the House.

Mr. Dardis

Am I correct in assuming it is 28 calendar days rather than 28 sitting days?

Mr. Gilmore

Yes, 28 calendar days.

Mr. Dardis

It is a big difference.

Amendment, by leave, withdrawn.

Question proposed: "That section 3 stand part of the Bill."

Mr. Dardis

My point relates to a matter I raised on Second Stage regarding section 3 (1) where it states the Minister may by order "... confer on the said commission such one or more of the functions of the board as the Minister determines and specifies in the order,". I am concerned this could be used as a vehicle for allowing departmental control. Will the Minister assure me that will not be used in that way, other than in the very exceptional circumstances it is envisaged the Bill will cover?

Mr. Gilmore

I am quite happy to give Senator Dardis that assurance. The Bill is in no way intended to confer additional control on the Department over the fisheries boards. A number of safeguards have been included to ensure it will only be exercised in exceptional circumstances and subject to scrutiny by the Oireachtas. The functions which it is proposed to transfer to the commission must be specified in the order which would be put before the House.

Mr. Daly

The Minister is aware we have put down an amendment to try to define the functions of the commission. The functions of the board are relatively well defined in legislation but the functions of the commission are not clear. From this legislation I understand the functions will be decided by order and that the order will be of the type about which we have complained so often. Will that be done when the order is moved in the Houses, or will the function be defined and included in the legislation? Will we be left with some further orders which would just require to be laid before the House? The position is not clear.

An Cathaoirleach

I understand the Senator has put down an amendment to section 6, which deals with the functions of the commission.

Mr. Daly

I have but the functions——

An Cathaoirleach

Perhaps we should deal with it when we reach section 6.

Mr. Daly

The functions are also covered in this section. It states the functions of the commission will be defined by order. Will they be laid before the Houses to be debated?

Mr. Gilmore

The functions which it is proposed to transfer to the commission would be put before the House as part of the proposal to appoint the commission. In other words, the Minister would explain the problem, the need for a commissioner and the functions it is proposed to give the commissioner. The functions cannot be greater than the functions of the board. The functions which it is intended to transfer will be specified.

Question put and agreed to.

SECTION 4.

Mr. Daly

I move amendment No. 2:

In page 5, between lines 15 and 16 to add a new subsection as follows:

(3) Where the Minister after having regard to any such representations from a Board proposes to make an order under section 3 of this Act, the Minister shall give notice in writing on that proposal to the Board in question at least fourteen days prior to a proposed order being made.".

We had the opportunity on Second Stage to record our appreciation of the diligent and successful work done by individual board members in the various areas. Their task has been carried out successfully in relation to conservation measures, sometimes under terrible pressures. Under the section the Minister will serve notice on the board of his intention to appoint a commissioner and the board is given an opportunity to make representations to the Minister within 14 days of the Minister notifying the board. There is no provision in the section for notifying the board of any decision the Minister may make arising from its representations. It is afforded the opportunity within 14 days to make its case and I presume boards will give reasons they believe commissioners should not be appointed, at least in the instances where the boards approach the Minister.

Under the section as it stands the Minister will notify a board of his intention to make an order, although the board has not requested him to do so. The board is given 14 days to make representations to the Minister. However, there is no obligation on the Minister to notify the board as to his decision having taken into account their representations. The Minister should notify the board of his decision out of common courtesy 14 days before it is implemented. This would be a recognition of the representations and of the fact that the members of the board had been working diligently — many of them for years, out of pocket and severely criticised, sometimes even threatened because of their conservation actions.

I repeat our support for the work done by board members through the years. It is only reasonable to expect the Minister to treat a board in a responsible way by discussing its representations with it and notifying it of his decision so that the commissioner would not just show up at the door.

Mr. Gilmore

There are two sets of circumstances in which a commission may be appointed: one is where a board requests it and the other is where, for example, allegations are made, the Minister wishes to make an inquiry, he sends in somebody to report to him and, on foot of that, he feels it necessary to appoint a commission. In such a case the Minister will notify the board of his intention to appoint a commission. The board has 14 days to respond to that, which is fair and reasonable, is in the interests of natural justice and is a recognition of the board. The Minister then makes a decision on whether to proceed to appoint the commission. If he does proceed, it is inevitable he will notify the board.

In any event, it would not be a case of the commissioner showing up at the door the next morning. The Minister has to put the matter to the Oireachtas. When the Oireachtas has approved the decision the commission is appointed and the board is notified. I see no reason for 14 days notice to be given to the board. The circumstance which this legislation is designed to address is the kind in which quite often time is of the essence. I do not consider it necessary or desirable that the board should be given a 14 day period of notice following the decision to appoint a commission.

Mr. Daly

The Minister of State has said that time may be of the essence but he will be aware that this process will take considerable time. He is providing for a situation where it may take a lot longer than we would expect. If the Minister needs to deal with a problem urgently and effectively through appointing a commissioner he has to give the board 14 days to make representations. However, after that process he still has to come to the Oireachtas. The efficient timeframe the Minister suggests will not apply; it will take some time for the Oireachtas to debate such a matter after which it may well reject it. In the meantime the board would be in limbo and fisheries could suffer.

If the Minister could argue that this is part of a new streamlined means of dealing with difficulties I would go along with it but it will be the opposite. Not only will there be debates in the Houses of the Oireachtas but we will all be subject to pressures from board members as to the order which could lead to even more chaos. I do not wish to be difficult about this; I want to assist the Minister in finding a less cumbersome and more efficient method of meeting his objectives. The legislation is sufficient in general terms. However, where boards have not sought intervention but there is intervention from ministerial level and the matters would be subject to debate in the Oireachtas, the boards would be left in limbo until the commissioner arrives.

Mr. Fitzgerald

Would it not be courteous to let the board know in advance so that it could call a meeting and make this information known to the members? Board members who might be out of the country could come back to find the board no longer in existence. Would it not be easy to include in the section some time period as per the amendment? The section allows a period of 14 days after notice is given for the board to make representations to the Minister. This amendment is looking for courtesy to the board that has served well.

Mr. Daly

Especially when the board has not applied for somebody.

Mr. Gilmore

When he intends to appoint a commission, the Minister will be required, under the legislation, to notify the board and to give it 14 days to respond. Where the Minister has considered the representations or the case made to him by the board, and decides to proceed, in case the idea is encouraged that there is a furtive process whereby the Minister appoints a commission without the board's knowledge, I emphasise this cannot happen because the Minister has to go to the Oireachtas.

On the assumption that members of the board are living on the same planet as everybody else, apart altogether from the normal courtesy of informing them they will know that this process is under way. There is no case whatever for a 14 day statutory period to elapse between the decision to appoint the commission and it taking office. This would not be desirable.

Mr. Daly

Will the Minister give a typical example of a case where he needs to appoint a commissioner without any request from the board? He will notify the board of his intention to make an order. Will this be done after the order has been passed by the Oireachtas, or before? When will the period of 14 days apply?

Mr. Gilmore

The sequence of events would be as follows: In the first instance, if the Minister is presented with serious allegations regarding financial mismanagement and decides to investigate it, he will get a report from the investigator on foot of which he will decide to appoint a commission on the basis that he wants to send somebody in to take over the financial management of the board. In that case, the first thing he will do is notify the board of his intention to appoint a commission, and seek approval from the Oireachtas, to take over the financial management of the board. He will then give the board 14 days within which to respond to that intent.

If the board writes to the Minister advising that all is well and there is no need for a commissioner and having considered the board's request, the Minister decides to proceed in any event, he would then put his proposed order to the Houses of the Oireachtas for approval. There is, therefore, public debate and consideration of the justification for the order.

It is an exceptional measure. If the Minister decides to take from a board its functions regarding the finances of the board and transfer them to a commissioner for a period of time he must go to the Oireachtas, explain it and have it approved. That having been done, the commissioner can be appointed.

The board will be notified of the Minister's decision at the point where he decides to proceed. It is then in the public domain, but there is no case for a period of 14 days to elapse once the decision has been made.

Mr. Daly

The Minister will not be able to pre-judge what the Oireachtas may do. How can the Minister advise the board of his order when he must first get the approval of the Oireachtas for it?

Mr. Gilmore

The Minister would not do that. He would inform the board, as a matter of courtesy, of his intention to seek Oireachtas approval for what he proposes to do.

Mr. Daly

That is not written into the Bill.

Mr. Gilmore

The Senator is seeking an interregnum of 14 days from the making of the decision to the appointment of the commissioner.

Mr. Daly

The Minister anticipates me. It could take 28 days.

Mr. Gilmore

It may well in practice, but there may be circumstances where it may be necessary to have the commissioner take up certain functions of a board much more quickly. It is not necessary to have a provision inserted that 14 days must elapse between the making of a decision and the commissioner taking up duty. In addition, if one thinks of the circumstance where this type of measure may be necessary, for example — I do not base this on any allegation or any information that has been brought to my attention as it is a purely hypothetical example — if there was an allegation regarding financial mismanagement, it would be most undesirable that a period of time should elapse from the time a decision is made to send in a commissioner and the commissioner taking up duty.

Mr. Daly

The reason for the amendment is to ensure that there is courtesy and some appreciation for the invaluable work being done, largely unpaid, by so many people on the various boards in the conservation area. It is common decency and courtesy for an amendment to be made which will ensure that the boards be kept fully informed of the developments planned for them. If the Minister thinks otherwise, he is mistaken.

Mr. Gilmore

I do not want to let that pass. We are straying from the content of the amendment. I made clear on Second Stage the high regard in which I hold the members of the regional fisheries boards and I have underlined this in the last year by visiting the boards individually, meeting their members and managers and discussing with them at first hand their various concerns. I have a very high regard for the members, management and staffs of the boards.

I assure the House that nothing discourteous will happen under this legislation. Unfortunately, the existing legislation is not adequate to provide us with a quick mechanism for investigating serious allegations or an appropriate mechanism for taking action if that is warranted. This is why the legislation is before the House. I reject any implication that, bringing this legislation before the House reflects on the regional fishery boards, their managers or their members. That is far from the case. I have great respect for them.

Mr. Daly

We are speaking about legislation.

An Cathaoirleach

We have covered the subject fairly well.

Mr. Daly

This is important. We are discussing what is written in the Bill. I have no doubt that the Minister of State has the high regard he expressed for members of fisheries boards. Nevertheless, this Minister of State might not always be the Minister of State and what will be ultimately referred to is what is written in this subsection. It would be better if a provision were inserted whereby the boards would be kept fully informed.

Amendment put and declared lost.

Section 4 agreed to.

SECTION 5.

Mr. Daly

I move amendment No. 3:

In page 5, between lines 24 and 25, to insert a new subsection as follows:

"(4) A person appointed a member of a Commission shall be a person who in the opinion of the Minister, has an interest in or knowledge or experience of or in relation to inland fisheries.".

The purpose of this amendment is to ensure that a commissioner shall be a person who in the opinion of the Minister has an interest in or a knowledge or experience of matters relating to fisheries. I searched the Bill carefully to see if any qualification is specified for such an appointment. It appears to be omitted. I also looked through other legislation that was passed recently and a number of Bills contained a specific provision that the persons appointed to commissions or high office would be people with a knowledge of or experience in the relevant area of responsibility. The Refugee Bill contains two Schedules specifying who could be a commissioner for refugees or an appeals commissioner. These Schedules set down precise terms for qualification. If I recall correctly, the commissioner for refugees must be a person with at least seven years experience as a barrister or as a practising solicitor. The qualifications for appeals commissioner are somewhat similar.

There is nothing in this Bill to indicate that the commissioner cannot be an individual with no knowledge of or interest or expertise in this area. While the Minister of State might intend to provide clarification in the order he will make, it would have been far superior if he had attached a Schedule to the Bill setting out the experience and so forth that would be necessary. My amendment suggests that the person appointed a member of the commission "shall be a person who, in the opinion of the Minister, has an interest in or knowledge or experience of or in relation to inland fisheries". That is a paramount consideration. Anybody else being appointed to a board would have a severe handicap.

Mr. Dardis

I support the amendment. The Bill specifies in a number of areas what the responsibilities of the commissioner will be, the terms under which the commissioner will hold office, how a vacancy will be filled and so forth. It should also specify the qualifications. Senator Daly is right about other legislation. The Bill that most readily comes to mind is the Bill to establish An Bord Bia. The Minister said this morning that a representative of the Department of the Marine sits on that board. On Committee Stage of the An Bord Bia Bill there was a great deal of discussion about the qualifications of a person who would have a knowledge of the food industry and what that meant, because in itself it was not specific.

This amendment is drafted in wide terms. It is standard, certainly in my experience in this House, that in situations of this nature the qualifications required of the person or persons to be appointed commissioners would be specified.

Mr. Gilmore

We must look at the range of circumstances in which a commission might be appointed. There are two types of commission — a single person commission or a commission with more than one member. There are probably two situations in which a commission would be appointed. One is where all the functions of a board are transferred to a commission. In those circumstances it goes without saying that the commission appointed would consist of people who have an interest in and knowledge and experience of inland fisheries.

The second situation is where specific functions are being given to the commission. In such situations I accept that it is desirable that whoever is appointed would have an interest in or knowledge of inland fisheries. However, in certain circumstances the primary qualification being sought might not necessarily be a knowledge of inland fisheries. If the functions that are being transferred are, for example, the personnel functions of the fisheries board, it makes sense that somebody with experience or knowledge of personnel matters would be likely to be appointed. It is all the better if the person is a personnel expert who has a knowledge of or interest in inland fisheries. Similarly, if the function relates to finance the primary qualification might well be in accountancy. It is an additional qualification if that person has a knowledge of or an interest in inland fisheries. The Senator can take it that somebody who is being appointed to interface with a fisheries board would have to have such knowledge.

I understand the intention of the amendment — that the person appointed would be somebody who is at least familiar with what they are dealing with. That makes perfect sense. However, the formula in the amendment is quite wide. Somebody who on one occasion was handed a rod on a river could be supposed to have experience of inland fisheries. If they once read an angling column in a newspaper, do they have an interest in the subject? The formula in the amendment does not necessarily strengthen the qualification. It is fair to say that the persons who will be appointed will be able to satisfy the criterion of being able to interface with the fisheries board. However, it may be that, depending on the particular functions being transferred, the primary qualifications might be to do with accountancy, personnel management or legal matters rather than specifically with inland fisheries.

Mr. Fitzgerald

Let us assume that this is a different Bill and that this section referred to the appointment of a harbour master — I see a parallel between both. The section would specify that the person would be fully qualified with a master's ticket and would go on to list the qualifications necessary for the job. This is what the amendment is about. What qualifications does the commissioner need? I know the Minister said that if the problem was on the financial side a finance man might be needed, but overall what is needed is a person with a knowledge of fisheries boards and how they are run. I support the amendment. It would ensure that the commissioner appointed is the proper person for the job.

Let us be honest. Over the years I have seen some appalling appointments made to different boards. This has happened under all Governments from time to time. These people would know nothing about what was happening. That day is gone. People are appointed in a different way and they know what they are doing. It is a mistake that the Minister has not specified the minimum qualifications necessary for the job. As the provision stands, the Minister could be devious and pick someone from his own party who would not know how to do the job. I am not saying the Minister will do that; I am just pointing it out. The Minister should accept that amendment.

Mr. Manning

I disagree with Senator Fitzgerald. We have to leave a fair amount to the common sense of a Minister who will want the commission to work and is not going to fill the commission with duds. Senator Fitzgerald and I are members of the governing body of UCD, and a very good governing body it is. There are no conditions laid down there that members should have an interest in, a knowledge of or any proficiency in the sphere of education. It is assumed that anybody who goes for election to that body, who canvasses to be nominated for that body or whom the Government thinks should be on that body is a person who will automatically have these particular interests and so forth. The Minister has a fair point also that there may well occasionally be need for specialist skills and that the person may very well develop an interest in fisheries, may very well acquire a knowledge of it, but their primary reason for being put on the commission is a specialist skill which is not otherwise available to the commission, so I am happy with the proposal as it is.

Mr. Dardis

Senator Manning seems to be preparing the ground for next week's debate on education. I hope he will remember some of those remarks when we come to that debate. There is all the difference in the world between the wide spectrum of interest, opinion and knowledge that one would need to be on the governing body of a university and the spectrum of knowledge and competence that one would need to deal with a matter such as the one before us. The Minister made an interesting point. What he said reinforced me in my belief that the amendment is a good one. He said "it goes without saying". That is the problem; unless these things are specified in legislation, with all the goodwill in the world it can go wrong. That is why it is desirable and why it is in other Bills. I do not see that there cannot be an accountant or a personnel manager with a knowledge of inland fisheries. The amendment is very widely drafted. It is widely drafted so the Minister continues to have a reasonable discretion, but it is a very standard provision and it surprises me that it is not in this Bill.

Mr. Belton

I support the Minister. The amendment creates the problem the Senator claims he is trying to avoid. A commissioner is envisaged to be introduced to sort out a specific problem. Any Minister who wants to sort out a problem does not bring in someone who will create another problem. With due respect to the Senators, they are flogging a dead horse.

Mr. Fitzgerald

I totally agree with Senator Manning when he said that the Minister's own common sense would ensure that the right person was chosen. A few years ago this House, with all the good intentions in the world, passed a wording for an amendment to the Constitution which caused no end of trouble. It was interpreted in a totally different way by the courts from what we intended in the House. If the Minister was to appoint somebody tomorrow I have no doubt that he would do the right thing, but somebody else might come after him who might do the wrong thing. It should be specified for the person who comes after him and for the next 20 years and so on.

In regard to Senator Manning's point, the governing body of UCD specifies so many professors on the governing body, so many elected representatives——

Mr. Dardis

They do not have to be competent in anything.

Mr. Fitzgerald

They are very competent. It specifies what they should be. The point I am trying to make to the Minister, with all his good intentions, is that a couple of years ago all the good intentions of this House were disregarded in the Supreme Court. People will interpret everything in different ways and the amendment should be accepted.

Mr. Gilmore

There is an amendment before us. What does it actually mean? Is this saying that the people who are to be appointed have to be anglers? It does not say that. It is saying they must be people who have an interest in, a knowledge of or experience of inland fisheries. Senator Manning is absolutely right. We have to leave a certain amount to plain common sense. The first thing that will determine the qualifications of the person to be appointed is the circumstances and the functions being transferred to the commission. If financial functions are being transferred, they will be transferred to somebody with a knowledge of accountancy and so on. It is fair to say that any Minister appointing a commission to deal with a fisheries board will appoint people who will be able to interface with that board; so it is obviously preferable to find an accountant, for instance, who has a particular interest in inland fisheries. Sometimes the persons who will be appointed to a commission will depend on availability. While I accept that, the way in which this amendment is phrased is so wide that it could mean anything; it could mean somebody who once read an angling column, in which case it does not really add to what is in the Bill or the common sense approach that would be taken in any event.

This Bill is unique in that it builds in a series of protections: advance notice, matters being brought before the House, a time limit on the appointment. The qualifications of the people to be appointed will have to be left to the judgment of the Minister at the particular time, depending on the circumstances which govern their appointment.

The amendment before us will confuse matters in that, looked at one way, it means nothing and does not in any way strengthen the position, but it could build into the legislation a provision which might subsequently be interpreted as meaning appointees must be anglers or that could be regarded as the primary qualification. This provision is the only thing in the Bill that relates to qualifications for the commission. As I said earlier, the primary qualifications might be in other disciplines or fields.

I ask Senator Daly to accept that, when the commission is being appointed, common sense would dictate that the appointees would have a knowledge of or interest in inland fisheries. I ask him not to insist that the sole reference to qualifications in the Bill be the amendment he has proposed, which could lead to a great deal of misinterpretation at a later stage.

Mr. Daly

I agree with the Minister of State that we are dealing with unique and difficult situations that have not been possible to resolve, but we have to keep in mind that it is important that there be confidence in a commissioner who is to resolve a problem and that he or she will have some knowledge or experience in fisheries affairs.

I fully endorse the view expressed by Senator Manning that there will be a necessity for specialist skills and expertise. It would be my understanding that any commissioner going in to resolve a problem would have to avail himself or herself of that kind of specialist expertise. I am sure the commissioner when it comes to dealing with specific affairs will not be deterred from providing himself or herself with specialist advice. I expect it would be part of a commissioner's remit that they have the availability of such services. That too should be written into the Bill. If I were in the Minister's shoes I would ask my officials to redraft the Bill so that the people involved in this particular area of fishery related activities would be assured that the basic investigation would be carried out by a commissioner who has some knowledge, limited as it may be, of the whole fishery area.

I deliberately drafted the amendment broadly so that I would not close off the Minister's options. I could have drafted it tightly and specifically, but that might close off some options for the Minister. I deliberately drafted it broadly to allow the Minister latitude in determining who should or should not be appointed as a commissioner. I believe the Minister of State has given all the reasons we should have this provision. It was an oversight on the part of the draftsmen in the Department.

I admit that there was much haste in putting this legislation together. Perhaps if the draftsmen had it back, they might think differently about it. It is deficient by not having a provision which has been inserted in many other Bills which I have already quoted, including the Refugee Bill, 1995, in which it is specifically set down that the chairman of the proposed appeals board will be a barrister of ten years' standing and that the proposed commissioner for refugee appeals will be a barrister of seven years' standing. We will be debating that Bill on another occasion. If the Minister refers to the Heritage Act, 1994, he will see that the amendment I have tabled is almost identical to a provision in that legislation.

The Minister will undermine confidence in the appointee if the legislation is deficient because the person appointed may be totally divorced from and have no knowledge or experience, or even the remotest idea, of what is involved in this area.

Mr. Gilmore

I do not want to engage in repetition, but again — and Senator Daly will accept this — the intention is to appoint people who know something about inland fisheries and would have some knowledge of it. A number of speakers said we should set down the qualifications of people who will be appointed. We cannot do that in this legislation because different circumstances require different qualifications. Hopefully, this legislation will not have to be used often.

It is out of context and would be open to misinterpretation if the sole qualification written into the legislation was in the form Senator Daly is proposing. One possible interpretation of the amendment is that an appointee must first be an angler. There is the other possibility, in which case the amendment does not add anything to the Bill, and that is that it is interpreted as a loose aspiration which can be met in virtually every circumstance. I want to assure Senator Daly that, in so far as any appointments I would have to make under this legislation are concerned, I intend to appoint people who will be able to interface with the fisheries boards and will know what they are about.

An Cathaoirleach

Is amendment No. 3 being pressed?

Mr. Daly

Yes; it is fundamental.

Amendment put and declared lost.

Question proposed: "That section 5 stand part of the Bill."

Mr. Dardis

I want to return to a point raised on Second Stage to do with the number of members. Everything the Minister said has indicated that his thinking is along the lines of a one member commission. Can he suggest where it might be required to have more than one member of the commission? Why was it decided not to put an upper limit on the number? It seems to be a standard provision that there be an upper limit on the number of members. We do not want large commissions descending upon fisheries boards, that would not be the Minister's intention either.

Mr. Gilmore

The size of the commission will vary depending on the circumstances. If the matter to be addressed in a fisheries board is an individual function for a limited period, it may be appropriate to have a single person deal with that. If, for example, there were a clearly identified personnel problem, it may be appropriate to have somebody effectively act for a period as the personnel manager of the board and have the personnel functions assigned to him or her.

A second situation might be where there are problems relating to the wider management of the board and where a number of skills might be required. There might be separate problems relating to personnel management and to finance. There may be allegations in relation to fishery management or conservation where it might be necessary to have people with a range of skills and requirements.

A third case might be where the entire functions of a board are being transferred to a commission in which case it would be likely that a commission of more than one person might be considered to be the best way of dealing with the situation.

Why is there no upper limit? The intention is that any such commission would be small. It is desirable that a commission appointed to do a particular job should be small. The danger in providing for an upper limit, such as five members, is that it almost creates an expectation that every time a commission is appointed it must have five members. I do not see more than three or four people being appointed to a commission. In cases where the appointment of a commission might arise, there may be only one commissioner. The precedent for this legislation is the Regional Technical Colleges (Amendment) Act, 1994. A single member commission was appointed in that case.

Question put and agreed to.

NEW SECTION.

Mr. Daly

I move amendment No. 4:

In page 6, before section 6, to insert a new section as follows:

6. (1) The functions of the Commission shall be

(a) to propose policies and priorities for the identification, protection, conservation and development of the inland fisheries within the area of jurisdiction of the Board in question.

(b) to co-operate with Public Authorities and other organisations and persons in the promotion, conservation and development of the inland fisheries within the area of jurisdiction of the Board in question.

(c) to take all reasonable steps to ensure harmony and good working relations between personnel employed by the Board and Board Members and

(d) to make recommendations to the Minister on any matters relating to the Board's functions which would secure and enhance the inland fisheries in the area of jurisdiction of the Board.

(2) The Commission may make recommendations to the Minister on any matter relating to the Commission's function, and may make such recommendations public.

(3) The Minister shall respond to a recommendation referred in subsection (5) within three months of receipt thereof.".

On another section we dealt in some detail with the functions of the commissioner. As in the case of my arguments about knowledge and experience of fisheries, it is desirable to write into the Bill the functions of the commissioner. In view of the absence of any such definition, I have drafted some functions on which I seek clarification from the Minister.

The amendment proposes that the commission may make recommendations to which the Minister will respond within a given period. It is desirable that the functions of the commission should be clearly defined. The Minister may intend to do this by order which may or may not be debated here. The position relating to the making of recommendations by the commission should be set down clearly and the Minister should respond to them. Departments are cluttered with recommendations which have not been acted on.

The amendment proposes that the Minister should respond to recommendations within three months. If the commissioner finds serious anomalies in, say, the Shannon board, he should make recommendations to the Minister on how these anomalies should be addressed. There is nothing in the Bill which states that the Minister should do anything about such recommendations. It should be set out in the Bill that the Minister should act on recommendations within three months of receiving them.

Mr. Gilmore

I find this amendment from Senator Daly to be ironic. I understood the position he has articulated all day as being that the role and function of the commission should be as limited as possible. This amendment would confer on the commission a role far beyond the purpose of this legislation.

The reason for appointing a commission arises in two circumstances. One is where the entire functions of a board are being transferred to the commission, in which case the functions of the commission are those of the board, which are already set down in legislation. The second circumstance is where part of the functions of a board are being transferred, in which case the part of the functions being transferred would be specified and clearly defined in the order establishing the commission.

To have in the primary legislation a list of functions as suggested here would in circumstances where the commission is being asked to carry out part of the functions of a board create total confusion between the role of the board and that of the commission. If, for example, a commission is appointed to take over the financial management of a board, it is possible that the elected board might continue in place if it was established that it was not at fault for whatever financial problems might have arisen and it would continue to deal with fishery management and policy. It would be totally confusing if the board was in place dealing with its normal fishery functions and a commission appointed to deal with financial management, had in the primary legislation functions set down for it relating to the making of policy, recommendations to the Minister and so on, which would be the normal functions of the board and which it would be able to carry on in any event.

The entire functions of a board may be transferred to the commission; these functions are already set down in the primary legislation. If some of a board's functions are transferred to the commission, these will be set out in the order.

Mr. Daly

This is a confused situation anyway. The fact that the Minister has to write into the legislation a co-ordination procedure relating to the commissioner and boards indicates that even before the Bill is passed the Minister anticipates that problems will arise.

Mr. Gilmore

No. I am trying to avoid the problems the Senator's amendment will create.

Mr. Daly

Section 6 deals with coordination. The Minister has anticipated there will be problems between the commissioner and boards regarding responsibilities. A situation may easily arise where there is a difference of opinion with regard to responsibilities and the management and conservation policies of a board may be suspended for two or three years while a commissioner is in place. Neither the board nor the commissioner would have a clear mandate unless this is defined.

I admit that improvements could be made to the amendment. If we had more discussion prior to this we might have been able to frame a more specific amendment. The Minister is already creating a confused situation which is a recipe for chaos. There will be a commission and boards with no clear definition of the responsibilities of either. In such a situation development may not take place and there may not be fisheries protection. There could be organised chaos in the fisheries area while a commissioner investigates something.

Imagine the chaotic situation a commissioner on the Shannon Regional Fisheries Board would cause in the middle of July when there are drift nets on the Shannon, nets at the mouth of the estuary and Spanish boats on the horizon, as will happen on 1 January. There would be an argument about responsibility because nobody would be clear about their function. The drive towards conservation, management or protection could be put in jeopardy.

I refer to the two final provisions on the recommendations of the commissioner, which were not really addressed. I saw nothing in this legislation which says the commissioners shall make recommendations to the Minister to deal with a particular problem, or about the response we will get from the Minister. I hope it will be this Minister, but it may not be. We could find that after two years of difficult negotiations the future of fisheries is threatened because there is nobody to deal with the situation. The commissioner may make recommendations as to how something should be done, but there is no compulsion on the Minister to respond. This legislation is most unsatisfactory. We are trying to deal with problems in an effective way, but this will create more confusion than the original situation.

Mr. Gilmore

On the question of recommendations if a commission takes over the functions of a fisheries board — it could a regional or a central board — it will have the same powers, rights and responsibilities as the board. In so far as the transfer of functions is concerned, the commissioner will be able to advise and make recommendations because he will follow what is already in the primary legislation.

On the question of proposing policies and priorities for identification and protection where the commission is being given the entire functions of the board, it simply carries out the functions of the board, which includes advice, recommendations, proposing policies and priorities, etc. The commission will have the same power that a fisheries board has to do those things.

If, for example, there is a problem in personnel management in a board and a commissioner is sent in solely to carry out the personnel management function, it would be absurd for the commissioner to duplicate and second guess the board in proposing policies and priorities for protection of fish and so on which would be outside his remit.

The confusion does not arise in the legislation, which is clear. The functions will be clearly set down in the order and they will be covered by existing legislation. I suggest that confusion would arise if I accepted this amendment because we would then have a parallel arrangement where the board would be responsible for policy, while a commissioner, who might only be appointed to do a particular job for a limited time, would also be given a duplicating role in relation to policy and other matters.

Mr. Daly

If there were financial irregularities in a board and this necessitated the appointment of a commissioner, would the commissioner be able to call in the fraud squad or notify the Minister to do so? Where does the line of responsibility between the commissioner and the Minister lie?

Mr. Gilmore

This is an important question because Senator Daly seems to be under the impression that the function of the commissioner is to investigate, advise and make recommendations to the Minister. The commissioner will be given some or all the functions of the board. The job of the commissioner, as long as the commission is in place will be to carry out delegated functions. For example, if there is a problem as regards financial management and a commissioner is appointed, the commission's job will be to exercise the boards functions in relation to the financial management of that board. The commission might decide to make certain recommendations to the Minister, but its primary function would be to carry out the board's job in relation to that function. This only arises where a deficiency in the way the board is carrying out that function has been identified.

Mr. Daly

Would the commissioner have the same power as the chief executive of the board to take legal proceedings against staff and to call in the fraud squad?

Mr. Gilmore

Yes.

Amendment, by leave, withdrawn.

Sections 6 to 8, inclusive, agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. Dardis

I would like to register a concern. The Minister confirmed earlier that the 28 days during which the order would be laid before the House were 28 calendar days not sitting days. I envisage circumstances where the use of this legislation could be highly controversial. From my reading of the legislation, it is possible that the order could be before the House at the beginning of the summer when there would not be any sitting days within the 28 day period. At the end the 28 days, without a Dáil sitting the order would become law without debate. That is a major deficiency and I remain to be convinced that it is not there.

Mr. Daly

I suggest this section be deleted and the Minister substitute other ways of dealing with this. Perhaps he could give us a broad outline of the content and objective of this section. It seeks to give power to make orders which do not need to be discussed here because people can be appointed before the orders come back to the House to be approved. This is a recipe for courts and part of the reason for this legislation was to avoid the need for litigation. What will be the position now of section 24 of the 1980 Act which gave the power to move boats? Will section 9 affect the existing power under sections 24 and 65 of the 1980 Act and section 50 of the 1959 Act? We debated those Acts here. I was here during the debate on the 1980 Act and it was envisaged then that that legislation would deal with some of the situations we are discussing now. Is it the intention to repeal sections 24 and 65 of the 1980 Act and section 50 of the 1959 Act? Or will they be used in combination with this section to deal with particular situations?

Mr. Gilmore

This section is intended to give the Oireachtas the right to either approve or annul an order made under this legislation. The section is deliberately intended to give the Oireachtas control of this provision and is designed to ensure that this provision, which is designed for exceptional circumstances, will not be used by a Minister to unnecessarily or indiscriminately involve himself or herself in the affairs of a fishery board.

There are two ways in which this will be dealt with by the Oireachtas. The first is the normal, primary way, which is that if the Minister wishes to make one of these orders he puts the proposed order before the Houses of the Oireachtas which have to approve it. That is very straightforward and in that case the order is made. The second way is designed for situations, for example, when the Houses are in recess and action is required to be taken reasonably quickly. The provision is that the order would be laid before the House for 28 days and then the order is made. The order then has to be laid before the House for a further period of 21 sitting days — under subsection (6) — within which time a resolution may be made to annul it. If such a resolution is not made, it stands. The Oireachtas is guaranteed that it has to scrutinise the order.

With regard to the points raised by Senator Daly in relation to various sections of earlier legislation, I understand that he was talking about the provisions of the 1959 and 1980 Acts whereby a public inquiry can be instituted and where a Minister can remove a board from office. Those provisions still stand and are not repealed or affected by this legislation. This is an additional measure.

Question put and agreed to.

Sections 10 to 12, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

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

Minister of State at the Department of the Marine (Mr. Gilmore)

I thank the Members for the very positive and constructive debate on this Bill. It got much closer scrutiny here than in the other House, which I welcome.

Mr. Daly

He got away with murder.

Mr. Gilmore

I was here for much longer than I was in the other House — I did not break any time records here.

Acting Chairman (Mr. Maloney)

There is more expertise in this House.

Mr. Gilmore

I thank the Members and I appreciate the very positive and sometimes searching and lively discussion we had on the subject.

Mr. Fitzgerald

I thank the Minister for his handling of the Bill and his answering of all our questions. I was very impressed today by Senator Daly's speech and his commitment over a long number of years to fishery boards and fisheries in general. I commend him on his sincerity and emotion. All of the amendments were tabled in order to make it a better Bill. I was very disappointed with the Bill's passage through the other House. I thought that there would have been more debate but very little was said about the actual Bill. Perhaps, we are raising the level of the Upper House.

Mr. Manning

Even higher.

Mr. Fitzgerald

I thank the Minister. It is great to see him in the Seanad and I hope he comes more often with more Fisheries Bills.

Question put and agreed to.

Acting Chairman

When is it proposed to sit again?

Mr. Manning

At 2.30 p.m. on Wednesday, 1 November 1995.