Harbours Bill, 1995: Committee Stage (Resumed).
Amendments Nos. 13 to 16, inclusive, not moved.
Section 34 agreed to.
Section 35 and 36, inclusive, agreed to.
SECTION 37.
I move amendment No. 17:
In page 32, subsection (1) (a) (i), line 3, after "master" to insert "who shall have the right to attend Board meetings and enter into discussions but shall not have the right to vote".
I feel strongly about this amendment because I have practical experience in this area. The amendment provides that a harbour master will have the right to attend board meetings and enter into discussions but will not have the right to vote. In every organisation a legal adviser would probably attend board meetings. In this particular case, however, the harbour master is responsible not just for implementing the Harbours Bill but also for implementing other legislation such as the pollution Acts and so forth. He must be up to date on all relevant legislation. No member of the board could possibly be as up to date as the harbour master. He is the person to whom I turn every day in running our little harbour in Dingle and that is only a small harbour. The harbours that will be administered under this Bill are huge and millions of pound will be involved. It is a mistake to omit the harbour master.
The Minister will probably say there is nothing to prevent a harbour master from attending a meeting and that harbour masters at present attend meetings in some cases, but look at the problems that can occur if the harbour master is not at a board meeting. A decision might be made by the board in all sincerity and honesty which might contravene some Act or law. The harbour master is the legal adviser to the board to a certain extent. Jurisdiction of the harbour is under his control — the property, piers and so forth. He must protect the harbour company from making errors and he is responsible for the ships in his jurisdiction, their size, cargo and so forth. If there is an accident the harbour master looks into it. He is the person to whom one turns 24 hours a day.
In the case of Dingle, the harbour master is paid to do a week's work on a 9.30 a.m. to 5.30 p.m. basis. However, he is on call 24 hours a day, every day of the week. On Christmas Day the board members are at home but the harbour master is there doing his job. He is also responsible for the public when they enter the company's property. He is the person we cannot do without. How could the Government run its business without the Attorney General attending Cabinet meetings? The Minister offered the example of the aviation officer not coming to Aer Rianta board meetings. I could name other situations where people equivalent to the harbour master attend meetings.
I want the right of the harbour master to attend meetings to be recognised. If the harbour master in Dingle rang me to say he could not attend our meeting on Saturday I would almost cancel the meeting because his advice on everything is so important. The Cathaoirleach in running the Seanad, for example, from time to time needs the advice of the Clerk and the Clerk Assistant of the Seanad. I hope the Minister will accept the amendment.
I ask the Minister to seriously consider looking at this amendment on Report Stage. Senator Fitzgerald and I have had similar experience — both of us have sat on harbour boards for many years, I for ten years and Senator Fitzgerald probably for longer than that. The Senator makes a cogent point.
The role of the harbour master is unique on a harbour board. His appointment is covered by statute and he is responsible for the safe running of the port. He is the central person around whom the commercial decisions as well as the safety decisions of the port are made. He is the operations manager of the port; he is in charge. His role is both commercial in ensuring the efficiency of the port and statutory in the context of implementing legislation. As Senator Fitzgerald said the harbour master has specific statutory responsibilities under the Harbours Act, 1946, the Dangerous Substances (Amendment) Act, 1979 — which places a heavy responsibility on him — the Safety, Health and Welfare at Work Act, 1989, the Sea Pollution Act, 1991, and the Merchant Shipping (Wreck and Salvage) Act, 1993. He must comply with a recent EU directive which impinges on his duties.
He is responsible for the control of dangerous substances brought into the harbour; he controls the mooring and discharge of all cargo; he is in total control; everybody else has an executive function, his role is operational; he controls pilotage, which encompasses the pilotage master and the superintendent in charge of craft; he is in charge of the safe moorage and transfer of ships in the harbour and he licences the jetty and advises the board on the granting of licences for the installation operation. The harbour master is the pollution officer and the control of and response to pollution in the harbour rests with him. There have been worrying incidents of pollution over the years which caused enormous concern. These are his statutory responsibilities.
He also has a commercial responsibility. He is the commercial operations manager and is responsible for the cost effectiveness of the harbour. Whether the harbour makes or loses money depends a great deal on the decisions he makes. The raison d'être of this Bill is to ensure the commercial survival and success of harbours.
Because he has such a high level of responsibility it is felt that he should automatically attend harbour board meetings. However, this is not the case. I know of a harbour where the harbour master has not been present at meetings and where it was the policy of the board that he should not attend. I will not name the harbour but I can inform the Minister of it later — it is on the east coast.
I know of a harbour master who was asked to leave a meeting even though he had direct responsibility for the issue being discussed. However, because some members of the board said they would leave the meeting if he had to leave, he was allowed stay.
I ask the Minister to look seriously at this issue before Report Stage and to ensure that a harbour master can be present at board meetings. He should be present for both the statutory and commercial areas for which he is responsible. I am asking not that he must be present but that he should have the right to attend. I have no problem with a harbour master deciding whether he should or should not be present. If he sees from the agenda of a meeting that he does not have to be present, this should be catered for, and the board should be able to conduct its duties without him and decisions made in his absence should not be null and void. The same would apply if he was on holidays. We do not want to tie things up too much. From ten years experience on a harbour board, I feel harbour masters should have the right to attend meetings.
It is essential that the harbour master be an ex officio member of the company. Under section 36, the chief executive, who has a somewhat similar role, is an ex officio member. In most cases the harbour master would be the technical and professional adviser to the board of directors on various matters. From time to time there will be some tensions within a board. I am worried about the power of a board of directors to remove a chief executive. I have had the experience of dealing with a chief executive who was constantly harassed by a board of directors and his job was almost impossible to do. Votes of the board determined whether he held his job from one year to the next and this led to terrible confusion and dismay. Senator Fitzgerald and I will try to amend the Bill on Report Stage to prevent this type of situation. It is vital that harbour masters attend board meetings. It would be bad for companies and for the management and development of ports if tensions resulted in harbour masters not attending meetings. There is an unanswerable case for the amendment and I urge the Minister to accept it.
Both sides of the House have argued that it is imperative that harbour masters attend all board meetings. From my experience of 17 years membership of a harbour board, I know that harbour masters' opinions are asked for numerous times during meetings and their expertise is brought into play. The docking and unloading of cargo is their main responsibility. Harbour masters must deal with accidents and with vessels entering ports which do not meet the required standards. It is important that this amendment is agreed to.
This issue was debated at length in the Dáil and amendments similar to the one proposed by Senator Fitzgerald were not accepted. At the same time, I am anxious that none of us should take up fixed positions on this issue, regardless of the merits of the alternative cases and the objectives we all share with regard to the smooth functioning of boards and their giving due recognition to safety of navigation concerns. While I am open to persuasion on this issue, I have serious reservations about the amendment which seems to go far beyond the objective which I understand he has in mind.
At this point I wish to summarise the arguments which have been made on this issue. This Bill establishes commercial semi-State companies. They are not public or local authorities; their directors have a clear commercial mandate. We must have confidence in the boards of these companies to carry out in a dutiful fashion all their functions, including meeting their responsibilities in respect of safety and navigation matters.
For the Legislature to lay down rights to attend board meetings for one servant of the board would be an unwarranted interference by the State into how a board conducts its business. It would, in essence, reflect a basic lack of trust in a board's competence and professionalism. It would give the harbour master a special position far beyond other servants of the board, such as the accountant or engineer, and would create confusion as to the role of the chief executive vis-à-vis the harbour master. It would imply that the harbour master was accountable directly to the board and not to and through the chief executive.
There is no precedent of which I am aware for such a provision in any other legislation. Senator Fitzgerald referred to the example I gave previously of the Irish Aviation Authority which is responsible for all air traffic control where there are enormous safety requirements. The chief air traffic control officer is not a board member and does not have the statutory right to attend board meetings. He is, of course, requested to attend such meetings as required for the purpose of giving technical advice.
It is common practice for public bodies and boards to have their senior professional staff present at their meetings. A local authority would, as a matter of course, have its county engineer present at most of its meetings but this is not provided for in legislation. There are several examples where it is the normal practice that chief professional or technical servants of bodies are present at appropriate meetings without this being provided for in the legislation establishing those bodies. I would expect port companies to act responsibility in this regard and to take due account of any technical advice given by harbour masters as part of their normal deliberations.
Harbour masters do not have a statutory right to attend board meetings under the Harbours Act, 1946, that is, the existing legislative framework. In practice, however, I understand that they do attend and I see no reason that practice should or would be discontinued in so far as it is necessary.
There are some difficulties with Senator Fitzgerald's amendment. It gives the harbour master a statutory right to attend board meetings and to enter all discussions and it seems to give him or her the status of a director, except the right to vote. This gives an extraordinary status and right to the harbour master over and above all other servants of the board.
As I understand it, the Senator's objective is to ensure that the board receives the advice of the harbour master while the harbour master has responsibilities or competencies specifically relating to safety of navigation. If that is the case, why should the harbour master have the unique statutory right to be present for all the business of the board and to enter into all discussions? Even in matters relating to safety of navigation the board might, for example, wish to take independent advice from other experts. It might wish to meet these in the absence of the harbour master so that there could be a full and frank discussion. The Senator's amendment would rule this out. Similarly, the board might wish to discuss these matters with the chief executive without the presence of the harbour master, but this would also be ruled out. Another situation which could arise is that the board might wish to discuss the performance of the harbour master or other senior staff. If Senator Fitzgerald's amendment is accepted in its present form, the harbour master would have the unique right to attend discussions relating to his performance and to his employment conditions and circumstances.
Should the harbour master, for example, have the right to attend all subcommittees of the board? Senator Fitzgerald knows that much of the business of these companies may be delegated to subcommittees. If the harbour master has the right to attend all the meetings of the board, does he also have the right to attend all the meetings of the subcommittees? What would be the legal status of decisions taken by the board if the harbour master was absent? Some boards, depending on their size, may have a lot of meetings if one includes those of the board and the subcommittees. The question arises as to whether the interests of the safety of navigation in a particular harbour might be better served if the harbour master was at his desk controlling the safety and navigational issues for which he is charged, or if he attended all the meetings of the board and subcommittees which, by implication, he would be entitled to attend if the Senator's amendment is passed.
The amendment as tabled would complicate and constrain the normal functioning of the board by giving one servant of the board unique rights which go far beyond his responsibilities and competencies. In my opinion, the arguments for maintaining the status quo are compelling and the amendment is unnecessary. Even if one felt that some safeguard should be included in the Bill to place a statutory right on the board to pay particular attention to safety of navigation and to the views of the harbour master in that regard, Senator Fitzgerald's amendment goes far beyond that objective.
As I said earlier, I am open to debate and persuasion on this issue but they must be based on its merits. Senators must accept that I have been open and flexible in my approach to all aspects of this Bill and I ask them to adopt a similar disposition when pursuing this issue. I will try to meet Senator Fitzgerald's concerns.
I recently met representatives of the harbour masters and I listened carefully to their views on this matter. I outlined to them the reasons I did not accept similar Dáil amendments as that proposed by Senator Fitzgerald. I have since received a submission from the harbour masters which I am considering. I have been asked here to give further consideration to the issue before Report Stage, and that I am prepared to do.
I ask Members to consider the implications of a straightforward amendment such as that proposed by Senator Fitzgerald. There are two options in this regard. One is where the harbour master shall attend all board meetings, which means a board meeting cannot be held without the harbour master. The second option is where the harbour master has the right to attend but he can exercise discretion to attend or not. Members must think through the implications of this for the harbour board, which might want to discuss the competence and employment conditions of the harbour master or get a second opinion in addition to that of its harbour master, or require the presence of the harbour master at a meeting to consider and decide issues but, because he can exercise discretion to attend or not, he might, as the amendment is phrased, exercise his right not to do so.
I do not agree with many of the Minister's arguments. I do not accept that if the harbour master was not available for a meeting it would have to be cancelled. The Minister has already accepted that harbour masters attend most board meetings; therefore, there is no reason that cannot continue. As Senator Neville said, certain boards do not allow the harbour master to attend. If the Minister is satisfied that harbour masters attend meetings and will do so in the future, surely he could table an amendment on Report Stage to satisfy them.
Harbour masters should attend in an advisory capacity but they should not interfere. My harbour master does not interfere; he speaks when he is spoken to and I assume most harbours masters do likewise. Sometimes decisions can be made by the board, but it is not always up-to-date with legislation or with how to run a harbour. Perhaps this is a straightforward amendment but it could be phrased differently and included in the Bill. Harbour masters should be allowed to attend meetings.
We should not look at what other boards do. Perhaps it would be better to allow the aviation officer, for example, to attend meetings of the aviation board. Perhaps it is wrong to exclude the aviation officer from that board. We do not know the problems faced by that board. Meetings may have to be cancelled until the aviation officer is able to attend and explain the situation.
I will back down if the Minister gives me a commitment that he will introduce an amendment on Report Stage which will satisfy the harbour masters. They are great people and I have much respect for them. They are due great credit for the way harbours are run, given that up to now most harbours have been accident free. We should keep it that way. The harbour masters are doing their jobs well and I ask the Minister to accept the principle of the amendment. I will hold fire if he introduces an amendment on Report Stage.
I thank the Minister for agreeing to examine this matter for Report Stage. Whatever the wording, it should contain the spirit and detail of this amendment and ensure the Minister's difficulties are overcome. Harbour masters should never be excluded from meetings they feel they should attend.
As I indicated earlier, I will give this matter further consideration between now and Report Stage and I intend to introduce an amendment on Report Stage. However, we should be clear that responsibility must ultimately rest with the board.
We do not want them to have the powers of directors or anything like that.
Harbour masters should attend board meetings. The practice is that they attend board meetings and that should continue. However, I do not want to include a provision in the Bill which would become nonsensical in an exceptional case. For example, if a board had a piece of property it wished to sell and it decided to set up a property subcommittee, should the harbour master attend all the meetings?
Or it wished to purchase something.
I will work on an amendment between now and Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 32, subsection (1) (b), line 8, after "other" to insert "suitably qualified".
Section 37 (1) (b) states:
A harbour master may from time to time authorise one or more other members of the staff of the company by whom he or she is employed to perform a function...
A harbour master is a highly qualified individual and if he is absent for a couple of days his functions should be conferred on a person who is suitably qualified to a high standard. In fairness, it is not good to confer functions on every Joe Soap working for the company. I am not suggesting that, if a harbour master goes away for a couple of days, he tells his wife to look after the place. However, I am unhappy that he could transfer his functions to any member of staff. These people do not have the necessary qualifications and have little knowledge of the Bill and other legislation.
Does the Bill cover the qualifications required by harbour masters? The qualifications required by pilots, including the class of certificate they must hold, are clearly outlined. The qualifications required by harbour masters should also be included in the Bill. The person left in charge should have some qualifications and these should be spelled out in the Bill.
I will use that number in the national lottery on Saturday.
Amendment agreed to.
Section 37, as amended, agreed to.
Section 38 to 40, inclusive, agreed to.
SECTION 41.
Government amendments Nos. 19, 20, 21 and 22 are related and may be discussed together.
Government amendment No. 19:
In page 34, subsection 1 (a), line 50, and in page 35, line 1, to delete "a member of the staff of the company" and substitute "each person".
It was brought to my attention that the question as to whether section 41 of the Bill as currently drafted covered persons already retired and in receipt of pensions from harbour authorities was unclear. I was of the view that existing harbour authority pensioners were protected by a combination of section 96 and section 12 (1) (a) (i). However, I accepted this combination of sections was vague and unsatisfactory and I undertook to have the matter clarified and put beyond doubt.
The purpose of the amendments is to ensure that the port companies will continue to be liable to pay pensions to former employees who are retired. Amendment No. 20 is a technical amendment which is being inserted on the advice of the parliamentary draftsman.
Amendment agreed to.
Government amendment No. 20:
In page 35, lines 4 to 9, to delete subparagraph (i) and substitute the following subparagraph:
"(i) immediately before the relevant vesting day was a member of the staff of the former harbour authority of the harbour of a company (being a company in relation to which a scheme referred to in subparagraph (i) of paragraph (a) is continued in force under that paragraph) but was not participating in such a scheme, or"
Amendment agreed to.
Government amendment No. 21:
In page 35, subsection (1) (c) (i), line 23, after "its staff" to insert "and other persons".
Amendment agreed to.
Government amendment No. 22:
In page 36, line 5, subsection (1) (d), after "staff" to insert "and other persons".
Amendment agreed to.
Question proposed: "That section 41, as amended, stand part of the Bill."
It was pointed out during the Select Committee's deliberations that some ports have huge debts in relation to pension funds. I understand Cork Port is doing well and that the pension fund in Foynes is also up to date.
Everything is up to date in Foynes.
The two Senators involved in those ports are in the House. I am sure they will ask why other ports face such huge debts. Sums of £25 million and £30 million have been mentioned; the situation is ludicrous. I will not labour the point but does the Minister have any figures regarding the ports and how far behind they are lagging? What is the level of debt with regard to pension funds?
I will not harp on this point as I mentioned it on Second Stage. The Minister is aware of my views on the Bill and I am happy with the way matters have progressed. Following discussions with the Minister, I hope by the time the Bill is passed, that those who put their houses in order will receive some recognition. The situation involves the Minister for Finance and there is a danger that those who need assistance will be given recognition and that no recognition will be given to those who rationalised their operations to an extent with which I did not agree. For example, I am a member of the Cork Port Authority and it rationalised several times to eliminate part of the workforce and bring about a situation where the port was a viable proposition. I see no reason we should not be doing that. At the end of the day it proved to be right because over the last seven to ten years the port has made an annual profit. Half the profits, however, were put into a substantial superannuation scheme to cover the remaining workforce.
We put in more than we should. As I said on Second Stage, we might have been better off putting the money into port infrastructure to improve it against competition from other ports that were not putting their house in order. They were probably putting their money into other priority areas like infrastructure.
I do not want to hold up the Bill. The Minister has been very fair and he is certainly on top of his brief. I congratulate him for that. On another day I would ask the Minister — and I have already given him a note on this — to recognise the credibility of those who were prepared to put their house in order. If any moneys are being paid out to ports that did not put themselves in proper order, then that recognition should also be given to ports that did put themselves in order. That would only be fair. How does one go about that? I am not bright enough to think that there is a way through legislation.
However, there is always abuse. We must be fair to those who were prepared to rationalise. When I say rationalise I am talking about eliminating parts of the workforce. It does not go down well with me to think that the physical workforce has to go. People who have made a lot of money now say they are making more money from the port of Cork and other ports. The danger is that a certain group will make it all. I do not want to harp on that any longer because we had it out fairly strongly the other day.
On the next Stage of the Bill we should discuss what can be done by way of assistance. If money is being paid it should be paid out pro rata to all the ports rather than to a few of them. There is no reason why that should not be done. The problem is that we are dealing with the Minister for Finance. These people can bring it about in such a way that some people can get it all and others get nothing. The Minister should consider that point which we can bring up on the final Stages of the Bill.
I was asked to provide certain information and I am happy to do so. Pension arrangements vary from port to port. As Senator Cregan said, some ports established pension funds and put money into them, and I compliment them on having done that. I recognise that they made prudent provision for their employees and for their pensioners. Other ports operated on a pay as you go basis. In other words, they paid their pension liabilities out of their current moneys on a year by year basis and did not establish a pension fund. Of course, at that time they were not required to do so. It is only since the Pensions Act came into force that employers have been required to establish pension funds.
In some of the smaller ports where employee numbers are small there are insurance type pension funds. Under the legislation insurance type schemes, whose benefits are to the public service norm, can continue in existence because the number of employees is small.
Because these new companies were being established and because time limits are set down in the pensions legislation within which time pension funds have to be established, there was a concern that pension entitlements of pensioners or of existing employees might be at risk. In order to put that beyond doubt the Government decided that provision would be made in this legislation so that whatever doomsday scenario might occur the pensions of employees and pensioners would continue to be paid. I want to make it clear, as I did in the Dáil, that there is no question of the Minister for the Marine or the Minister for Finance writing a cheque for the pension funds of the port authorities concerned.
The port authorities concerned will have to establish those pension funds themselves from their own resources and assets. We have undertaken a study of the financial position of all the port companies, looking in detail at their borrowings, liabilities and assets with a view to assisting them to find a way to make provision for pension funds. There is no question, however, of a cheque being put in the post to them.
The present position is as follows. Cork has a pension fund which amounts at present to about £13.6 million. That needs to be built up to about £18.9 million. Dublin port does not have a pension fund and we estimate that it requires a pension fund of approximately £50 million. Limerick has a pension fund of £1.3 million, which needs to be built up to about £2 million. Waterford has no fund and it needs a fund in the order of £4 million.
In the case of Dún Laoghaire the existing staff are employed by the Department of the Marine and are paid under a normal public service formula. A pension fund will have to be established and there is separate provision for that in the legislation. In the case of the other ports there are mainly insurance-type pension schemes in existence for the small numbers of employees involved.
Question put and agreed to.
SECTION 42.
Acting Chairman
Amendments Nos. 23, 24, 25, 29, 30, 31 and 33 are related and all may be discussed together by agreement.
I move amendment No. 23:
In page 39, subsection (1) (a), line 38, after "bye laws", where it firstly occurs, to insert "in so far as they relate to licensed pilots".
I would like to speak to amendment No. 33, in my name, which is being moved with this amendment.
Acting Chairman
Whereas we can take a discussion now, when it comes to amendment No. 33 it can be moved at that point. The content of amendment No. 23 can be discussed now and we will move each amendment individually as we go along.
It will expedite the discussion because both Senator Fitzgerald and I are trying to achieve the same purpose. I agree that in circumstances where port companies decide to employ pilots as members of staff there should be no need to follow the protracted procedure for making pilotage by-laws as set out in section 71 of the Bill. My amendment achieves this purpose and in the circumstances I would ask Senator Fitzgerald to withdraw his amendments in favour of amendment No. 33.
Amendment, by leave, withdrawn.
Amendments Nos. 24 and 25 not moved.
Question proposed: "That section 42 stand part of the Bill."
During the course of my Second Stage speech the Minister may have misinterpreted me. I said that a harbour authority should be able to grant licences to small boats plying for hire in its harbour, which could come under a by-law. Section 53 of the 1946 Harbours Act states:
A harbour authority may, at their discretion, issue to the owner of a lighter, ferry-boat or other small boat which such owner proposes to use or ply for hire habitually in the harbour of the harbour authority a licence authorising such use or plying for hire.
There are great merits in that. In Dingle boats regularly ply for hire to bring people to see the dolphin. I have no problem with the Department of the Marine granting the licences. The Department's view is that if a person's boat reaches a certain standard they get a licence. We found that too many licences were being granted by the Department and that it interfered with safety and traffic in and out of the harbour. We received several letters from tourists who used these boats saying that what was going on at the mouth of the harbour was crazy.
We brought in our own by-law in accordance with the 1946 Act. Nobody can ply for hire in our harbour without permission and a licence which costs £10. It is a great idea that a harbour should have a type of secondary licence. The Department looks after safety and the number allowed on a boat, but the local harbour authority issues a licence for a small fee of £10.
The Department grants a licence for one year but there is no regular inspection of boats. However, the harbour master in our harbour checks boats almost weekly and if there is something wrong with a boat it is not allowed leave the harbour until it is repaired, until lifejackets are provided or whatever. That is the purpose of our £10 licence. Is it worthwhile including this provision in the 1946 Act in this legislation?
I was interested to hear about these by-laws which have been made in Dingle. All by-laws made by harbour authorities under the Harbours Act, 1946, are subject to approval by the Minister under section 60 of that Act.
We got the Minister's approval.
They may have been approved but there is no collective recollection of the Dingle by-laws. However, we will make inquiries to see if they have been blessed with the Minister's approval. If not, Senator Fitzgerald and I may have other matters to discuss.
We are dealing with passenger boats. In the Merchant Shipping Act, 1992, there is a requirement on all passenger boats carrying passengers to hold a current and valid passenger boat licence. A passenger boat is any boat used to carry not more than 12 passengers for hire or reward in any capacity, including island transport, transport on rivers, carrying people to and from the Dingle dolphin. A passenger boat licence may only be granted by the Minister for the Marine after a vessel has been inspected by a departmental marine surveyor and is found to be suitable.
All passenger boats if they are to be licensed must comply with minimum standards of safety and seaworthiness. A licence may be granted for a period not exceeding two years and is subject to such limitations or restrictions as may be imposed. Section 53 of the Harbours Act, 1946, has been superseded by the Merchant Shipping Act, 1992, in so far as the licensing of passenger boats is concerned.
Question put and agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
Will the Minister explain the transfer of functions from one company to another? Vast tracts of land along the River Shannon in north Kerry are privately owned by Aran Energy, Toyota, the IDA and so on. Approximately 12,000 to 14,000 acres of development land are located along the Shannon Estuary. Could Kerry County Council develop a port or harbour on that part of the Shannon Estuary?
It is obvious that no order can be made unless there is agreement between both authorities or bodies to make the changes proposed. In many cases that may mean that little may be done. If one authority has a minor objection to putting arrangements in place, the order cannot be made. I suggest that the Minister provide a mechanism for arbitration.
In the event of an authority raising a minor objection which would prohibit the making of an order, there should be a mechanism which would allow for arbitration. Perhaps the Minister might arbitrate to find a solution to the problem. We may find that for a minor technical reason a desirable arrangement may not be provided for because of the necessity to have agreement between both parties. Will the provision in section 43 which applies to the transfer of functions from one company to another also apply to the transfer of functions from one subsidiary company to another?
The purpose of this section is to empower the Minister to amalgamate ports if he or she is of the opinion that for sound business reasons the ports concerned should be amalgamated. However, an order under this section can only be made with the consent of each of the companies to which the order relates. It would not be possible under this section to do as Senator Dan Kiely suggested and set up a separate new port authority. This section relates only to the port companies being established under this legislation. It anticipates a stage in the future when two of the port companies may want to amalgamate. This can be done by order but only if the port companies concerned agree to it.
The question of arbitration would not arise because it is not a matter that can be arbitrated. The companies either agree or they do not. If one company withholds agreement, as it will have the right to do, the only way in which the port companies could be amalgamated would be through the introduction of new legislation. It is not intended to cover subsidiaries but the port companies themselves. For example, at some stage in the future Dún Laoghaire and Dublin, Foynes and Limerick, New Ross and Waterford, Arklow and Wicklow might want to amalgamate and form single port authorities. This could be done by order if the port companies concerned agree to it.
I understand the Minister's point about this section. However, if part of an estuary could be developed with the help of a local authority, could a new company be formed under section 88?
An Leas-Chathaoirleach
We will deal with section 88 when we come to it. We are dealing with section 43 at the moment. The points the Senator wishes to raise under section 88 may be raised when we deal with that section.
Question put and agreed to.
Section 44 agreed to.
SECTION 45.
An Leas-Chathaoirleach
Amendment Nos. 25a and 26 are related and may be discussed together.
Government amendment No. 25a
In page 41, lines 36 and 37, to insert after "considers"",after consultation with the Commissioners of Irish Lights,".
I will not move amendment No. 26 in favour of the Minister's amendment. We are in agreement.
I am essentially accepting Senator Fitzgerald's proposal to consult with the Commissioners of Irish Lights. There is a little tidying up in my amendment.
Amendment agreed to.
Amendment No. 26 not moved.
Question proposed: "That section 45, as amended, stand part of the Bill."
The Minister is aware that there is some question about the powers of the Commissioners of Irish Lights in relation to radio signals. Can he indicate what the present situation is in that regard because it could have some importance here?
That issue does not arise under the Harbours Bill. I know Senator Daly is referring to the outcome of the court case on the Loran C mast in Loop Head.
It does cover the Commissioners of Irish Lights.
It does not impact on this legislation.
Question put and agreed to.
Sections 46 to 51, inclusive, agreed to.
SECTION 52.
I move amendment No. 27:
In page 44, subsection (1) (a), line 10, to delete "may" and substitute "shall".
In a way amendments Nos. 27 and 28 are related. I propose that the provision should read "shall refuse entry". I want any boat carrying nuclear waste which arrives at a port to be refused entry into the harbour. There should be no ifs or buts about it. The word "may" is very weak and I would like it to read "shall refuse entry". I would be interested to hear what the Minister has to say.
As I mentioned on Second Stage, I share Senator Fitzgerald's concern and I am also anxious to prohibit the entry into Irish commercial seaports of nuclear material and nuclear powered ships and other conveyances. However, were I to accept the Senator's amendment as proposed it could mean that harbour masters would be statutorily required to refuse entry into their harbours of all sorts of dangerous goods.
For example, a ship carrying acrylo-nitrile, which is classified as a dangerous substance, calls to Dublin port about once a month. Approximately 2,000 tonnes of acrylo-nitrile is unloaded and transported by rail under strict control and safety measures to the Asahi plant in County Mayo. The amendment, if accepted, could mean that this cargo could no longer be unloaded at Dublin port and the jobs of the Asahi employees could be put at risk.
With a view to catering for cargoes such as this and prohibiting entry of nuclear materials into Irish ports, I propose to split section 52 (1) (a) into two separate paragraphs. The first would empower the harbour master to refuse entry into the harbour of dangerous goods, as classified in the INDG code, which in his or her opinion would be likely to endanger persons or property. The other would statutorily require the harbour master to refuse entry into the harbour of a ship or vehicle or other conveyance that is powered by or carrying nuclear material. Exemptions will have to be granted under this proposed new section in respect of certain medical supplies and materials involving background radiation levels. It is proposed that these exemptions will be set out in a ministerial order to be made under the section and following consultations with the Radiological Protection Institute of Ireland. If the Senator is agreeable, I will have amendments along those lines ready for circulation on Report Stage.
I have no problem with the Minister's proposal. I am happy and proud that I have brought this to the attention of both the Minister and his Department. Over the years we have complained about Sellafield, THORP and nuclear testing in the South Pacific. However, successive Governments, regardless of their composition, have just paid lip service to it. This is a chance to say that we will prevent all nuclear powered ships or submarines from coming into our ports. We will also ensure that, as the Minister outlined, nuclear substances will not enter our ports.
In a way it is a pity that we could not go a lot further in this regard. I am even considering introducing a small Private Members' Bill to declare all our coastal waters to be a nuclear free zone. I do not mean as far out as the Porcupine bank, but that a three, five, nine or 12 mile limit would be set, inside which would be a nuclear free zone. If there is no speed limit in a town, people can drive through it at 40, 50 or 60 miles an hour. As soon as a speed limit of, say, 30 miles has been set, people driving at higher speeds are breaking the law. We can never accuse England or Sellafield or THORP of breaking any law, because there is no law to break. However, if we declare our coastal waters to be a nuclear free zone, and others then break our laws by polluting our sea which we have declared to be a nuclear free zone, we can then take them to the highest court in the land or to the European court. I could be wrong about this but I checked it out and that was what I was told.
I know the way the Minister and the Members of both Houses feel about nuclear power and Chernobyl, the diseases it has caused and the damage it has done. Of all the amendments, I hope Members will forgive me, this is the one that makes me happiest. It is a step in the right direction and for accepting it the Minister has a special place in history because it is the first time as far as I know that any Government Minister has put into writing that nuclear powered ships and nuclear waste will not come into our country or be allowed into our ports. There is a small difficulty which the Minister will probably tidy up later on. The Bill only covers the 12 ports referred to. There are many other ports. I doubt if we will ever get a submarine into Dingle——
That will not stop the Senator trying.
——but all ports should be covered, because I saw a programme on television one night about what can only be described as a time bomb out in Russia. It is a submarine which is rusting away and which cannot be controlled. The nuclear reactor inside it is going out of control. It is ready to explode and do the same damage as Chernobyl. I am proud of the Minister.
I fully concur with everything that Senator Fitzgerald has said. I congratulate the Minister for taking this on board and creating some legal history in establishing this very important precedent. I will not repeat everything Senator Fitzgerald has said, but I am also proud of the Minister.
I join my colleagues in complimenting the Minister on taking this enlightened approach to these amendments, which are very welcome indeed and which will send a very strong signal out that we in Ireland are not prepared to tolerate nuclear waste and nuclear powered vessels in Irish ports and harbours.
An Leas-Chathaoirleach
I am proud to be in the Chair on this historic occasion.
Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
Section 52 agreed to.
Sections 53 to 55, inclusive, agreed to.
SECTION 56.
Question proposed: "That section 56 stand part of the Bill."
I have very little to say, but on Part IV of the Bill, which covers pilotage, perhaps the Minister should have considered introducing two separate Bills. This Bill covers many areas and one could get confused. My interest is mainly in the harbours but I am interested in the pilots as well and provisions for both are contained here.
Somewhere in the Bill there is the use of the word "regular". Where ships regularly use a harbour, they will get the exemption certificates. What does "regular" mean to the Minister? I go on holidays regularly, once a year. If a master comes up the Shannon, for example, once a year, does that mean that he is a regular visitor and that he or his company can obtain an exemption certificate? This is the beginning of the end for pilots. The provisions in regard to pilotage are far too loose altogether. The Minister is giving plenty of power to ship owners, agents and all the rest of them. I do not know whether I am in order but I am generally raising the whole issue of pilotage.
An Leas-Chathaoirleach
You are raising them under section 56, so you are in order.
The Minister should curtail a lot of this. It takes me about five hours to drive from Dingle to Dublin. I would love to hand over to somebody else when I get as far as Newlands Cross and let that person drive through the city. The master of a ship comes across the oceans of the world and arrives at the mouth of the Shannon. Regardless of whether he is a regular visitor, after his journey, in the course of which he has often endured storms and bad weather, he breathes a sigh of relief and hands over to the pilot. The currents of the river will change and unless he goes up there almost every week, he will not know the currents of the river or how strong the tide is.
A tide can be strong even though there is a new moon or a full moon and one would not know it. The Shannon is different to all the other estuaries, because there is a dam on the river upstream. If a lot of water is released there is an unnatural flood of water coming down the Shannon and anyone going up and down the Shannon without a pilot would have to be doing so on a regular basis, say at least once a month. The pilots have served us well and should continue to serve us.
I would like the Minister to look at the exemptions again because ship owners and agents want to get out of all this as cheaply as possible. The cheaper they can bring in their cargo the better. Many of the ships come from third world countries. On one ship which berthed in Dingle, crew were paid £9 per week. They do not have the same knowledge as locals. Other countries totally flout the law of the sea. Their laws in relation to their ships, masters and qualifications and so on are very poor.
I would hate to see the pilots disappear but this Bill will make them disappear very quickly. They serve a very good purpose. Their presence assures the port authority that while they are there, there will be no accidents and that things are all right. For example, a harbour master will worry a lot when he finds out that a particular master of a ship has received an exemption order to come up the Shannon without a pilot.
The harbour master is responsible for a harbour to the extent of its limits. The harbour masters and pilots enjoy a good relationship. I believe the harbour masters would prefer that the pilots remain. It is a different matter when a ship enters Waterford harbour with the same master on board each week. I would like the Minister to define the term "regular" because its meaning is ambiguous.
These sections of the Bill do not spell the end of pilotage. Pilotage will continue. Some of the sections in this part of the Bill make it clear that pilotage will continue to be compulsory in certain waters. Section 72 provides for the issue of pilotage exemption certificates in certain limited cases. The decision as to when a pilotage certificate will be issued will be made by the port company. Harbour masters have extensive responsibilities for navigation, etc, and I cannot envisage a situation where a port company would issue a pilotage exemption certificate if the harbour master stated that one should not be issued.
Would the harbour master have the power to recommend that an exemption should not be granted?
Yes, he would. If a harbour master recommends that a pilotage exemption certificate should not be issued, I cannot imagine that the port company would decide against such advice. The circumstances and rules governing the issue of pilotage exemption certificates will be covered by regulations to be made following the passage of this legislation.
With regard to what is a regular visit to a port, this will depend to some extent on the circumstances involved. The term "regular" means that a ship would have to make 12 visits per year to a particular port. The situation to which Senator Fitzgerald referred, where a ship visits a port once a year and its master possesses limited knowledge of the area, will not arise. A ship sailing under a flag of convenience, with a master and crew from God knows where, would not be issued a pilotage exemption certificate. The legislation sets out that such certificates may be issued only to Irish and EU citizens and people from countries with a reciprocal arrangement.
There are also a number of conditions which must be complied with before a pilotage exemption certificate is issued. They deal with the cognisance which must be taken in relation to dangerous cargo. The issuing of pilotage exemption certificates will ultimately amount to matters of judgment. In situations where ships visit ports on a regular basis, the port company, having taken account of the harbour master's opinion, may decide that such ships can enter the port without the assistance of a pilot. In such circumstances pilotage exemption certificates can be issued. However, this will happen on a limited basis and applications will be carefully assessed. The duration of a certificate is one year only. It must be renewed thereafter. A regular visitor to a port will not be issued with a certificate and never have to apply for one again. This area of the legislation is very heavily supervised.
I am quite happy with the Minister's explanation.
Question put and agreed to.
Sections 57 to 59, inclusive, agreed to.
SECTION 60.
Question proposed: "That section 60 stand part of the Bill."
I am concerned that a change is proposed in relation to piloting. A situation may arise where a ship must travel through the jurisdiction of one harbour to reach another harbour. The pilot of the first harbour must be put on board the ship in that case. In my own locality of Limerick and Foynes, the Limerick harbour master must ensure that pilotage is provided to ships travelling through his jurisdiction on their way to Foynes. If a pilot is not available, the ship may be delayed. This may happen as a result of the negligence of the harbour master involved. The harbour with which the ship intends to trade has no control over the situation. This would interfere with the commercial viability of the second harbour. I am sure it does not occur, but a situation might arise where two harbour authorities experienced difficulties in their dealings with each other. In such circumstances one harbour authority might interfere with the passage of ships to the harbour in which they intend to dock.
To localise the answer, the Shannon Estuary Ports Company will be the pilotage authority for the Shannon Estuary. This matter must be put in perspective. I have no reason to believe that the pilotage authority in the Shannon Estuary will not carry out its duties in a fair and professional manner. I also have no reason to believe that it could be used in pursuit of some agenda other than providing safe navigation in the estuary. I am not aware of any occasion where such circumstances have arisen.
At present, if the harbour master cannot provide a pilot, the ship can proceed into the harbour of its destination. However, under the legislation, if the harbour master is negligent and fails to provide a pilot, the ship may be delayed. Changes are involved under the section and I am querying whether new restrictions will be placed on harbours in such circumstances.
I draw the Senator's attention to section 60 (3) (a) which states:
If the master of a ship cannot comply with paragraph (a) of subsection (1) because the services of appropriately qualified pilots are, for whatever reason, unavailable he or she may, notwithstanding that subsection, navigate the ship in the pilotage district provided the harbour master for the pilotage district, being satisfied that it is safe in all the circumstances for the ship to be so navigated, authorises such navigation.
It will continue to be possible for the ship to proceed to the port of destination provided the harbour master of the pilotage district — in this case it would be the Shannon Estuary harbour master — is satisfied it is safe to do so.
The decision is made. It is a material change in that at present the ship can proceed if the pilot is not available. The harbour master of the jurisdiction must give the decision to allow that ship through now and that is a material change about which some concern has been expressed.
Question put and agreed to.
Sections 61 to 70, inclusive, agreed to.
SECTION 71.
Amendments Nos. 29 to 31, inclusive, not moved.
Government amendment No. 32:
In page 57, subsection (5), line 11, to delete "are" and substitute "is".
Amendment agreed to.
Government amendment No. 33:
In page 57, lines 20 and 21, to delete subsection (6) and substitute the following subsection:
"(6) (a) Subsections (2) to (5) shall not apply to a company that organises and ensures the provision of pilotage services in its pilotage district by the means specified in paragraph (a) of section 56 (1).
(b) Subsections (2) to (5) are subject to paragraph (b) of section 80 (1).".
Amendment agreed to.
Section 71, as amended, agreed to.
Sections 72 to 77, inclusive, agreed to.
SECTION 78.
Government amendment No. 34:
In page 66, paragraph (b), line 21, to delete "if the pilot is" and substitute "being".
This is a minor drafting amendment which does not affect the overall provisions of the section.
Amendment agreed to.
Section 78, as amended, agreed to.
Sections 79 to 85, inclusive, agreed to.
SECTION 86.
Question proposed: "That section 86 stand part of the Bill."
I want to thank all concerned. I have been waiting for this section for about four years.
It is only an enabling section which could make Dingle a fishery harbour centre. Indeed, I was speaking with Senator O'Toole the other day and he said we must warn the Minister that motions will be put down if Dingle does not become a fishery harbour centre. I felt it was a pity two or three years ago that the Government of the day did not publish a short Bill to deal with that.
The Minister knows I speak the truth. Dingle is a success story. The money invested there has created over 300 extra jobs, about which there is no doubt, and the marina and the fishing boats get along well together.
The job is not finished, and I might as well say that in the presence of the Minister, as it would take about £600,000 to complete the end of Dingle pier. The Government must have a few pounds somewhere which could be used to complete the job.
It is a strange world. I thank Senator Brendan Daly, who signed the agreement. He remembers the day well. I do not think he ever meant the end of the pier to be left unfinished and we may find out in a moment whether that is the kind of job he wanted. From our point of view, it is quite dangerous and I hope some day to have the honour of showing the Minister around the harbour so that he might see the difficulties.
He has done that already.
Was that when he went out to see Fungi?
He has probably. The pier is quite dangerous. There are two foul berths in Dingle — a foul berth is where you cannot berth the boat.
The Minister mentioned that all the harbour authorities were consulted, but they never came near us in Dingle. We would have a great contribution to make to this Bill and we are constructive.
I ask the Minister to declare Dingle a fishery harbour centre as soon as possible. I do not agree with what is going on in other harbours and with this review group, but fishery harbour centres are a good development.
I lay the blame for harbours which are not generating enough income to clear their debts on the Minister's Department, because other harbours which have been completed for years have been trading and their charges are clearly not sufficient compared to the amount of money coming into those harbours. If they charged a percentage of the total landings of any port, it would be a huge amount of money. This is what is being done in Northern Ireland, as far as I know. If Dingle, for example, where £5 million worth of fish is landed every year, received 2 or 3 per cent of that figure, it would only be a small amount of money.
I know my head will be blown off for saying this, but we must make ends meet. The Minister should take this matter in hand and increase the boats' charges. Irrespective of the harbour, I pay more in parking fines every year than a 60 foot boat pays tied to the pier. The sum of £800 for a 60 foot boat in this day and age is not a lot when it includes the use of all the harbour facilities.
There is definitely a problem in Dingle with regard to making ends meet. According to the fishermen, only when the harbour is finished and the same level of facilities are provided as are available in all the other fishery ports will they agree to increased charges.
This has nothing to do with the Harbours Bill, 1995, but I want to see the job finished. It is a strange stroke that the man who, along with the Taoiseach of the day, former Deputy Charles Haughey, signed the contract to allocate the money, Senator Brendan Daly, happens to be sitting beside me today in the Seanad.
Question put and agreed to.
Progress reported; Committee to sit again.
