We resume the debate at amendment No. 21. Amendments Nos. 35 and 37 are related to amendment No. 21 and they may be discussed together by agreement.
Aviation Regulation Bill, 2000: Committee Stage (Resumed).
SECTION 32.
I move amendment No. 21:
In page 18, subsection (3), line 23, after "airports." to insert "Where airports which fall to be regulated by the Commission are owned by one and the same person and they operate as a group of airports whose activities are co-ordinated by the airport operator concerned, a determination by the Commission shall be expressed so as to operate by reference to the aggregate of charges levied at such airports."
If section 33(5)(d) was retained it could have serious implications. It is correct that the regulator should have regard to the level of service provided to airport users by the airport authority. The commission has the necessary powers under paragraph (f), but in order for the regulator to provide for the quality and the terms and conditions of services, the regulator would be obliged to be involved in operations that surely are not intended under the Bill.
What amendment is the Senator speaking to?
We are addressing amendment No. 21 to section 32. With amendment No. 21 we are also discussing amendments Nos. 35 and 37.
I have been speaking to the wrong amendment. My apologies. The purpose of amendment No. 21 is to address the question of regional policy. Being a Dublin politician I am naturally biased towards Dublin.
The Senator comes from Limerick.
My colleagues from the regions will acknowledge that we Dublin people are not selfish. In the relevant UK legislation account was taken of the fact that Heathrow could overwhelm other airports and it makes special provisions in determining charges for groups of airports. This was necessary for the balanced utilisation of capacity between the three London airports and to ensure that the airport charges at Stansted and Gatwick were competitive enough to attract traffic and that they were not overwhelmed by a monopoly position at Heathrow.
We have a similar situation with regard to Dublin, Cork and Shannon airports. In the interests of fairness and balance in terms of regional policy, the amendment proposes to regulate these three airports as a unit to ensure that the airport charges at Cork and Shannon are competitive with respect to Dublin. This is required in terms of market stability and regional development policy.
All-embracing people as Dublin people are, Dublin Senators appeal to the Minister to consider seriously the amendment in the interests of the three airports I have mentioned to promote stability and balance and to ensure there is not a monopoly position in Dublin. Legislation introduced by the Minister to date has addressed the question of regional balance. To ensure this legislation is consistent with that approach I appeal to her to accept this amendment in the interests of regional balance and to ensure that Dublin Airport does not have a monopoly over Cork and Shannon airports. I am interested in hearing the comments of my colleagues on the other side of the House.
I welcome Senator Liam Fitzgerald's comments and, as he is a Limerick man, I hope they are conditioned by his concern for the regions. There is a glaring omission in the Bill regarding the failure to take into account that a number of airports might be owned by the same company or group and operate as a unit. This is a relevant and important matter. We discussed earlier the fact that regionality is not incorporated in the Bill in terms of the Minister deciding specific policy and we hope to return to the matter on Report Stage.
Amendment No. 37 is similar to amendment No. 21 tabled by Senator Liam Fitzgerald. The purpose of my amendment is to insert a new section which states:
Where it appears to the Commission that two or more airports are either
(a) managed by the same airport operation, or
(b) that they are owned by the same person, or by members of the same group of companies and they operate as a group of airports whose activities are co-ordinated by the airport operators concerned,
any conditions imposed or modified by the Commission in relation to any one of those airports may be framed so as to prescribe a limit or limits operating by reference to the aggregate of amounts levied by way of airport charges at that airport and amounts so levied at the other airport or airports.
The purpose of the amendment is to ensure that the Aer Rianta operation of the three airports continues because the company has been successful over the years. At various stages in the history of all airports there is a high degree of interdependence and interaction between airports. One airport may support another financially at a particular time and vice versa, depending on the patterns that develop in relation to business and traffic through the airport and restrictions imposed by new legislation and agreements. It is vital that airports that may be in a weaker position are protected.
One might say that the EU has many policies on protectionism but the Minister could not have any difficulty with the amendment. It is in the interests of all airports that they remain viable and are considered functional entities in their areas. They should provide an integral service to the economy, the people and the regions and it is vital that this position is maintained. It is also important that their costs are not prohibitive and that they do not find the situation impossible.
A company will make the best judgments possible within the internal company structure to ensure that all its entities operate to the best advantage of the region. The Minister gave a commitment that the three airports will remain as one unit. Her restatement of that is most welcome but we must go further. Given that a commission and a regulator will be established under the Bill, there is no need for the Minister or the Government to proceed with an IPO. The Minister, who is the main shareholder in the company, will not regulate it. This function will be carried out by the commission. Therefore, any conflict of interest which could have existed heretofore will be removed once the legislation is passed.
A similar section was included in the British Act relating to airports. However, such a section was omitted in this Bill. I presume it was an oversight rather than a deliberate exclusion and I hope the Minister will have no difficulty accepting the amendment.
Mr. Ryan
Although the amendments are a blunt instrument, they are vital. There will be a problem if there is no attempt to allow flexibility and to ensure that the overall way in which regional airports are treated reflects public policy. I suspect the Minster may argue that because of her capacity to give directions under public pol icy, she can deal with this matter without legislation. However, as is often the case, the hypothetical ministerial successor may not be as benevolent as she is.
Precisely.
The Senator is correct.
Mr. Ryan
We are almost certain about that.
I heard the Senator plámásing the Minister of State, Deputy Cullen.
Mr. Ryan
The Minister is one of the few who does not succumb to it. That is one of the problems.
That is a challenge for the Senator.
Mr. Ryan
It is much easier to fight than plámás. However, this important issue should be developed and considered.
The consultants' report on Aer Rianta which the Minister received is an appalling document, full of assumptions about private sector efficiencies that will not survive in the real world. I read the document and, in common with all consultants' documents, it is a clear outline of what they think the customer wants to hear.
Cloud-cuckoo-land.
Mr. Ryan
After that, it puts together a justification for it. This is what most consultants do for most clients. They figure out as carefully as they can what the customer wants and then they put together the most plausible possible case for it. I read the report and I am sceptical of it. For example, the consultants used dubious models to reduce the figures for passenger numbers at Dublin Airport. However, they are using a model to produce projections for figures in Dublin Airport when no model ever projected the growth the country has experienced. As the OECD said, there may be close to double digit economic growth in the foreseeable future. However, the consultants suggested that Aer Rianta was overestimating passenger numbers.
The fundamental issue is that Dublin Airport cannot continue to expand indefinitely. There is a limit on what an airport can handle. Therefore, the issue of making it more attractive for international operators to use regional airports arises. One of those instruments is charges. Some of the more enthusiastic free market economists suggested in Britain that airlines should make commercial bids for slots in Heathrow and that this would deter the eternal demand to go to Heathrow. Every airline appears to believe that it is not really world class unless it has slots in Heathrow. I think it is the worst airport in the world.
It is vicious.
Mr. Ryan
I do not understand why anybody would want to persuade their customers to go there. Gatwick is a much nicer airport and it is much more accessible. However, the issue is regional airports.
There are two ways of looking at development. To a degree, the economics profession believes that there is growth and then infrastructure is provided. It tells the Minister that only 2% of people travel by rail and, therefore, there should no investment in rail. My view is that if there was investment in rail, more people would travel by it.
That is the argument I used and that is how I got the safety money. If a service is provided, people will use it.
Mr. Ryan
We do not want to kill people either. I do not want to praise the Minister too much. We should not go too far.
We should get back to the issue of air transport.
Mr. Ryan
I mentioned that to illustrate the point that regional development does not happen by accident. The economists' theory is that it should level out naturally. However, nobody else believes it and many economists no longer believe it. A package of measures must be put together, including regional infrastructure which will suck development away from Dublin. Senator Liam Fitzgerald would not be too pleased about that, but if there is a possibility of a national unemployment rate of 3% in the next two or three years, we should worry about the quality of development and not employment. Part of the quality of development will relate to a much more even distribution of growth.
I agree with the Senator.
Mr. Ryan
I said we need to suck investment away from Dublin, but I am not sure the Senator would agree with that. Although there are fully developed international airports in Shannon and Cork, it looks like most of the growth that is forecast will take place in Dublin. We must use public policy to redistribute that, not just in the interest of Cork and Shannon but because the country needs more even development.
These three amendments pursue the same objective while using different words. While the advice was to leave it as it is, we came to the conclusion it should be included in some form. I know the intention behind the amendments tabled by Senators Liam Fitzgerald, Taylor-Quinn and Ryan. The word "shall" is too mandatory. The word "may" in the amendments tabled by Senators Taylor-Quinn and Ryan is the best way forward. We must amalgamate the three amendments to produce the desired objective. I will ask the parliamentary draftsman to do so and to come back with an amendment on Report Stage.
This Bill shows the need to have a time lag between Committee Stage and Report Stage. Otherwise, we would refuse to accept amendments or accept wrongly worded ones. If the Senators approve, I will ask the parliamentary draftsman to draft an amendment to insert the word "may" because the objective is the same in the amendments tabled by the three Senators.
I am happy with the Minister's reply but I am a little confused about why the word "shall" is a problem. I am delighted the Minister has endorsed the significance of the three amendments. I am intrigued by the difficulty with the word "shall" but I do not want to make an issue of it.
This is the second group of amendments taken together. The last day we took three amendments together and we agreed to come back on Report Stage.
I appreciate the fact the Minister has accepted the general principle of the three amendments which relates to the viability and maintenance of a regional balance in Cork and Shannon. It is important that this is included in the legislation. I appreciate where the Minister is coming from. However, she may be able to accept my amendment as drafted because it states, "may be framed so as to prescribe".
We will consult with the Senators and the parliamentary draftsman.
My amendment is straightforward. It is important to include it in the legislation and to ensure it is as clear and specific as possible so the commission is not under any illusion as to where it stands on this issue and that it is not operating on a one to one basis but as a unit. The details can be operated by the management of the company in the interest of the sector overall.
I hope the Minister will retain her shareholding in the company and maintain a public policy interest so she will be in a position to give specific directions to the company. Social obligations and policies must be considered in legislation when dealing with a semi-State company. Those will go by the wayside if we consider an IPO. The Minister can have the best of both worlds. Her approach is wise, good and commendable. She is laying down the framework to stay where she is as far as the company is concerned. I know the Minister is an intelligent and sensible woman who will see the common sense and wisdom of doing that.
Mr. Ryan
No plámás.
I am not falling for it.
Tá díomá orm go bhfuil tú ag plámásaíocht arís.
The Senators should shut up.
I am delighted the Minister is accepting the general principle. It must be as clear and specific as possible in the interest of the development of the region. As Senator Ryan said, regions do not develop by accident but because of clear Government policy.
The Senator should give me credit. Did I oppose it?
It could be said that the founding father of the Senator's party established Shannon Airport. There is no doubt that region would not have developed if the airport had not been established at that time as a result of a ministerial decision. It is vital that the Minister has the foresight to maintain ownership of it to ensure it continues to be an economic cornerstone of the Limerick and Clare region and of the west in general.
I recognise that the thrust of the three amendments could buttress and underpin the fact that the airports are seen by successive Governments as a group of airports rather than being valued separately. I also recognise that the regulator will say this is Government policy. This gives the issue legitimacy. The Government will retain maximum share ownership. It is important to include the reference to a group of airports. We should remember who said that he would see the rabbits running over the runways of Rineanna.
Seán Lemass.
No. The Senator should go back to his history books.
He was responding to Seán Lemass.
Mr. Ryan
All the Minister's friends are on this side of the House.
Amendment, by leave, withdrawn.
Amendment No. 22 is a Government amendment. Amendments Nos. 32 and 33 are cognate and amendment No. 31 is related. Amendments Nos. 22, 31, 32 and 33 may be taken together by agreement.
Government amendment No. 22:
In page 18, subsection (4)(b), line 27, to delete “order” and substitute “determination”.
These are technical amendments. The term "determination" is the correct term. The word "order" was inadvertently used. As I said last week, this is twiddling to good effect.
Amendment agreed to.
I move amendment No. 23:
In page 18, subsection (5), lines 40 to 42, to delete paragraph (d).
I mistakenly referred to amendment No. 23 in respect of a previous amendment and I apologise for delaying the proceedings of the Seanad.
It is correct to state that the regulator should have regard to the level of service applied to airport users by an airport authority. When making a determination on airport charges, the commission will, under section 33(f), be obliged to have regard to “the level and quality of services offered at an airport by its airport authority”. However, I am of the view that section 32(5)(d) may be at variance with that.
The regulator's functions relate to the economic regulation of airport charges. However, in order for the regulator to provide for the level and quality of services and the terms and conditions of services supplied by an airport, he or she would be obliged to become involved in the operational management of the airports. I do not believe the Minister intended that this should be the case. The regulator would also have to become involved in determining the standard business contracts between airports and airlines. This would clearly militate against the effective operation of the airports and the regulatory office because the regulator will not have the necessary expertise to fulfil this requirement.
The ground handling directive already requires that service levels should be set out in contracts between airports, airlines and ground handlers. The regulator, who has responsibility for granting licences to ground handlers under a separate part of the Bill, should not be involved in this process. I propose that the Minister accept the amendment for the reasons I have outlined.
Mr. Ryan
I am astonished that this amendment has been tabled. I have a particular complaint about regulators. For example, the telecommunications regulator seems to believe that as long as she creates a commercial market everything else will work perfectly. That is not how the system operates. I am amazed by the idea that the regulator would not be in a position to ensure that airport operators provide a proper quality of service. As stated last week, I am not impressed by the quality of the service currently on offer at Dublin Airport and I am appalled by the idea that the regulator would be responsible for fixing charges without having some input into the quality of service provided.
The suggestion that the regulator would be obliged to agree charges and state that the level of service offered to customers in return for paying those charges was none of his or her business is wrong. I do not know what Senator Fitzgerald intends to achieve with this amendment. I accept that he is familiar with Dublin Airport and its concerns. However, I do not favour a situation where no one other than an airport authority would have a legal responsibility in this area or where such authorities would not be accountable to any public body. Under the Bill, the commission is accountable to the Houses of the Oireachtas and, therefore, is responsible for ensuring that a proper quality of service is provided. I am opposed to the amendment because it would considerably reduce the role the commission should play.
This matter can be viewed in two ways, namely, that section 32(5)(d) is essential or that there is absolutely no need for it. We are familiar with companies such as Aer Rianta which operate to very high standards. Aer Rianta is second to none in terms of the level and quality of service it provides at the airports it operates. It is responsible for servicing aircraft, providing refuelling and ground handling facilities and supplying food for flight kitchens.
A limit should be placed on the extent to which people should be allowed to interfere in any particular business. Does Senator Fitzgerald want the regulator or someone from his or her office to have responsibility for overseeing the operation of flight kitchens or refuelling facilities? Does he believe the regulator's office should be responsible for investigating the day to day operation of an airport authority? Whether this should be the case is a matter of judgment. However, it is my view that a limit should be placed on the extent to which we should allow the regulator to become involved in this area.
I am familiar with Shannon Airport and can attest to the excellent level of service which is provided there, the pride with which workers provide this service and the astuteness exercised by the management in running the airport. The system put in place by Aer Rianta to facilitate the airport's operation is efficient and effective.
This Bill is fundamentally concerned with the landing and taking off of aircraft and there is another item of legislation which deals with air safety issues, etc. I am reluctant to support a suggestion which would allow the regulator's office to scrutinise airport operations in minute detail. The regulator will have a responsibility to consider the aviation sector in general in addition to the airports which will come within his or her remit. Under other sections of the Bill, he or she will be responsible for making decisions on matters involving domestic and international competition and considering regional and national aviation policy.
There is really no need for the inclusion of section 32(5)(d) but I see no reason to delete it because the overall position will remain the same.
In considering the amendments to this Bill we are veering between wanting to give the regulator a stringent role and not wanting to do so. We are trying to achieve a balance.
Amendment No. 23 proposes that section 32(5)(d) be deleted. However, section 33(f) states that the commission “shall have due regard to . . . the level and quality of services offered at an airport by its airport authority and the reasonable interests of the users of these services”, whereas section 32(5)(d) states that “A determination may . . . provide for the level and quality of services including the terms and conditions of such services supplied by an airport authority”. I have no difficulty with deleting paragraph (d) because provision is made in this regard in section 33.
While I am familiar with Shannon Airport, I am more familiar with Dublin Airport at which a multiplicity of services is available. I will not presume to quote Senator Ryan directly but I believe he said that some people may find that the quality of service in the airport is not of an adequate standard.
Mr. Ryan
That is exactly what I said.
I do not agree. I seek high standards just as Senator Ryan does and, for the most part, the quality of service on offer in Dublin Airport is excellent. I find it intriguing, given the primary purpose of this Bill, that a regulator would be given the power to move into, or interfere in, the areas clearly delineated by my colleague on the other side of the House. That could cause chaos.
The regulator's area of expertise, as defined in the Bill, is quite clear and that is obviously the expertise which should be brought to bear to regulate those aspects of the aviation industry which have caused difficulty to date. The Minister has added four additional functions to that to widen the regulator's powers and scope. The regulator's main powers and functions are far too important, domestically and in terms of international competition, to allow a situation in which the regulator would be directed by the legislation to supervise and intrude upon services which, in spite of Senator Ryan's strongly held views, have been provided at top quality in Dublin Airport.
I am less familiar with Shannon Airport although I have passed through it many times and come from an area near the airport. I have never found the services at the airport to be anything other than of a high quality and have found the highest standards of courtesy operate there. I am baffled as to why a regulator should intrude on a variety of operations which, to date, have been performed at a very high standard.
I am accepting the amendment.
The Minister should circulate those comments to the airport employees.
Mr. Ryan
If the Minister wants to accept the amendment, that is entirely her own business. Section 33(f) states that the commission shall have due regard to the level and quality of services offered at an airport by its airport authority. I believe that the users of airport services should have some way of ensuring that what they consider to be reasonable standards are enforced. The Director of Telecommunications Regulation does not believe it is her job to ensure, for instance, that cable television standards are enforced, nor does she believe that complaints about monopolistic behaviour by cable television providers come within her remit. She holds the view that it is her job to facilitate competition and that is supposed to make everything better. That might be all very well in an ideal world but the world is not ideal.
This is only an enabling provision. If we take away the provision that the commission may provide for the level and quality of services, all that will remain is the provision in section 33(f) which states that the commission shall have due regard to the level and quality of services. Having due regard to what the airport provides is not the same as saying that we expect certain minimum standards to be met. This is not a matter of great concern to me but if regulation, as a new concept distinct from the old idea of State ownership, is to function properly, then this is not just a matter of money or cost, rather it is a matter of ensuring that acceptable minimum standards are met. This not only relates to the standard of services provided to airport customers; it also relates to the standard of services provided to people who pay airport charges. We are saying that we are going to take away the commission's right to have some input into what those minimum standards should be. I find that astonishing but it is not my problem.
Amendment agreed to.
Acting Chairman
Amendments Nos. 24 and 26 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 24:
In page 19, subsection (13)(a)(i), line 36, to delete “or” and substitute “and”.
Amendment No. 26 states:
In page 19, subsection (13)(a)(ii), line 37, to delete “user” and substitute “not less than one half in number of its airline users”.
It may appear perverse to some people but, to some extent, there is a parallel between what we have just been discussing and what is involved here. As it stands, there is the potential for a certain degree of chaos in section 32(13). It is very important that the cost of regulation would be contained. A mid-term review could significantly increase the cost of regulation and could impose a significant administrative burden on the regulator's office and the regulated entity.
I accept that a precedent has been set elsewhere which suggests that, for this reason, an interim review should be avoided where possible. However, I also accept that such reviews may be necessary in exceptional circumstances. As a result, I feel it is worth retaining the option of having a mid-term review and my amendment does not oppose that. That said, the legislation should lay down significant hurdles to this costly option and this is where the parallel, to which I referred earlier, comes into play. I am referring to the type of vexatious, mischievous, costly and unnecessary complaints which could have arisen in the previous instance if the regulator were forced, by legislation, to go down to the shop floor. Structures are already in place to deal with those matters.
The option to hold a mid-term review should be retained although such reviews are frowned upon and discouraged in other jurisdictions. There are exceptional circumstances in which a mid-term review proves necessary and I am calling for the retention of the option to conduct such a review while at the same time calling for the laying down of significant hurdles to such a review.
If a determination were capable of being reviewed at the request of only one airline, as currently stated in the legislation, a situation could arise whereby an airline with a very small percentage of overall traffic could cause a review of the determination arrived at by the regulator. The review process would impose an unfair cost burden on the majority of carriers who might be quite happy with the prevailing position. It is important that the commission would be satisfied that substantial grounds existed for a complaint before a review would be instigated. If the commission were also to receive a complaint from the airport authority or not less than one half of its airline users, it would be in a better position to gauge the level of discontent and could satisfy itself that a strong case existed for reviewing the determination. That is a very important point.
It is crucial that only one review would be allowed within the five year period of the determination. We attempted to catalogue the companies involved in this area – airlines, the airport authority and its users – when we discussed the Bill last week but the Minister, in her wisdom, advised us not to do so. More than one mid-term review would increase the uncertainty about a company's returns on capital, particularly in a capital intensive area such as airport industry. We are all in favour of promoting viability. I listened to the Senator opposite promote the principles of regional investment and viability. If we are to promote it, we must provide the structures. Senator Ryan articulated the need to provide the structures which enable these risk-taking companies to invest with a relative degree of certainty in the short to mid-term. That is one of the points I am making here. No doubt more than one mid-term review would increase the uncertainty about the company's return on capital. That is logical. It is simple fact.
It would also impact negatively on the company's cost structure, irrespective of the company involved and whether it operates from Dublin, Shannon, Cork or any of the other airports. This effect would then feed back to customers through increased airport charges. If one imposes fixed charges in any sphere of industrial, commercial or other activity, it is inevitable that the customer will be asked to carry the can. Given the costs in terms of money and time for the industry, having just one review within a period is the only sensible option. I am not suggesting that we should shackle anybody but the business philosophy of the Bill is to the contrary.
I am a little confused. Senator Fitzgerald made a determined effort to explain exactly where he is coming from. If both of his amendments were accepted, the section would provide that the commission may, on or after the expiration of a period of two years after the making of a determination, if it considers that there are substantial grounds for so doing and at the request of an airport authority or not less than one of its airport users concerned in respect of the determination, review the determination and, if it sees fit, amend the determination. In a sense the amendment restricts the commission's freedom to review its determination and I am not sure it would be wise to do so.
Section 32(13) states that the commission may do so "if it considers that there are substantial grounds". If the commission considers that there are substantial grounds, surely we should allow it proceed to review the determination. If we insert "and" instead of "or", we will provide that the commission can do it if there are substantial grounds and, in addition, there is a request from either an airport authority or not less than one half of the users, that is, the airlines using the airport.
"User" is the word contained in section 32(13)(a)(ii).
Yes. The Senator's amendment seeks to insert "not less than one half in number of its airline users".
A user, by definition, could mean one passenger.
However, the Senator is substituting "airline users" for "users". It would not be enough for the commission to decide that there were substantial grounds. It would also need to bring on board half of the airline users of that particular airport before it could proceed with the review. The Senator's amendment would tie the hands of the commission and restrict it from making a determination if it believes there are substantial grounds. I am not happy that more than half the airline users would need to be brought on board in order to allow the commission to proceed to review the scenario. On balance I would have strong reservations about going down that particular route.
Mr. Ryan
I am a little confused also. Much of this hangs on the definition of user. We had agreed to re-examine the definition.
We had.
Mr. Ryan
It is difficult to debate this since we have not decided what is an airport user.
I do not have a difficulty with the principle that the commission would be able to review the determination where it is so requested but there are perhaps 30 airline users at Dublin Airport, according to the present definition of user alone.
One would need to get 15 of those on board.
Mr. Ryan
As the Bill stands, after two years any one of them could initiate the process of seeking a review.
Any one of the airlines?
Mr. Ryan
Yes.
Why should they not?
Mr. Ryan
Because I am a little concerned about the scale of what could happen here. They are not restricted to doing so once. They could do it again and again. As Senator Fitzgerald stated, I see nothing which states that they can make only one request for a review. I have in mind a certain airline which shall remain nameless which has been vocal to the point of hysteria.
It need not remain nameless. We all know which one it is.
It did come to Shannon eventually.
Mr. Ryan
Yes, indeed. It is now stubbornly and stupidly refusing to provide services for Irish consumers because it took a fit of pique and is providing services to the rest of Europe out of London instead.
That proves my point.
Mr. Ryan
They will be able to continue their guerrilla warfare forever by submitting one request after another. Therefore, I agree with Senator Fitzgerald that there cannot be an open-ended continuous barrage of requests.
The issue of the role of users is conditional on our figuring out what is a user. Senator Taylor-Quinn and I attempted to expand the definition to include customers of the airlines as well as the airlines themselves.
This is singular – user.
Mr. Ryan
The Senator's amendment refers to a majority of users.
Mr. Ryan
I beg the Senator's pardon. It states: "not less than one half in number of its airline users". In most of the regional airports, at least in Farranfore or Knock, that would mean either Aer Lingus or Ryanair, presumably in rotation.
They will not come within the ambit of this legislation.
Mr. Ryan
No doubt there should be provision for review but I am a little worried about the present formulation. Senator Fitzgerald has a point in that there is a need to tighten the provision. If the commission wishes to do so, I presume it can initiate a review at any stage. It should be able to do so, if economic circumstances—
It should be able to do it without restriction.
Mr. Ryan
Yes.
With the permission of the House, I will deal with the amendments separately. Senator Fitzgerald seeks to delete "or" and substitute "and". In this case I agree with Senators Taylor-Quinn and Ryan. If I agree to amendment No. 24, it would combine the two scenarios and the regulator could initiate a review only if requested to do so. This would remove his discretionary powers to do so. It would be better to leave the regulator with the discretionary powers to initiate a review so that he would not need to wait until he was requested to do so.
Amendment No. 26 is tied up, as Senators Ryan and Fitzgerald stated, with the definition section, on which we had a long discussion on the last occasion and to which we will return. I share Senator Ryan's point of view, which is also shared by Senator Liam Fitzgerald and, I am sure, Senator Taylor-Quinn, that a particular airline could continue to take up everyone's time because it was noted for being—
An airport jumper and vexatious complainer.
The Senator has said so, not I. It is, of course, for the House to decide but I will not be accepting amendment No. 24 and I will be requesting that amendment No. 26 be resubmitted on Report Stage with the earlier amendment which refers to airport users.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 25 and 34 are cognate and may be discussed together by agreement.
Government amendment No. 25:
In page 19, subsection (13)(a)(ii), line 37, to delete “user” and substitute “airport user”.
When this matter was debated last week on Committee Stage, the definition of airport user centred on two options, that the definition be amended to encompass a wider variety of user and that the definition be deleted. We did not know which to choose. However, we agreed in general that the term should be deleted. We can delete the definition of airport user and discuss the best way of proceeding with the parliamentary draftsman.
Amendment, by leave, withdrawn.
Amendment No. 26 not moved.
Question proposed: "That section 32, as amended, stand part of the Bill."
Mr. Ryan
I may have misunderstood what the Minister said on the issue of multiple requests for reviews. She mentioned Ryanair.
No. The Senator mentioned Ryanair.
Mr. Ryan
The Minister mentioned the airline we are not allowed to mention.
The Minister did not mention the airline we are not allowed to mention.
Mr. Ryan
The airline which has my name in its name is the one we are not allowed to mention.
I am not sure that we should allow users to make interminable successive requests. There ought to be a period of time within which a request may not be made. If I raise an issue by way of a motion in the House I cannot raise it again until six months have elapsed.
The commissioner should be able to make reviews when he or she sees fit but users should not be able to bog down the commission with endless lists of requests for reviews. Therefore, subsection (13) could be tightened up.
The subsection states that the "Commission may . . . at the request of an airport authority or user concerned in respect of the determination, review the determination and, if it sees fit, amend the determination". The word "shall" is not used. It would not be advisable for the legislation to specify that the regulator cannot entertain vexatious or frequent demands for reviews. The use of the word "may" in the legislation allows discretion.
Sometimes when we draft legislation we forget that it will be applied by reasonable people who are determined to do as good a job as they can. We must try not to be too nit-picking while, at the same time, getting it right. The regulator appears to be a man of good sense. I am sure he will not entertain vexatious reviews. This subsection is to be discussed again on Report Stage.
Mr. Ryan
I do not agree with the Minister but I will not pursue the matter further at this point. There should be a six months' interval between requests by users for reviews. The world will not be so transformed in six months that people cannot wait. Every time a user makes a request the commission will be obliged to devote some time and resources, even to deciding not to entertain the request. Due process will require this. Therefore, there should be a time restriction.
While the section deals with maximum levels of charges, I am concerned about deals which may be done between airport authorities and individual airlines and the level of transparency which might exist when airlines negotiate deals which involve them paying less than the maximum charges. We must ensure that a level playing field exists, that hard ball operators do not get an advantage or that a publicly owned airline is not forced to subsidise a private airline.
The legislation merely sets maximum charges. I am happy to have airport authorities negotiate charges but there should be a degree of transparency. This is a difficult area because it involves commercial sensitivities but there is no point having maximum charges if nobody pays them. There is a need for more concern about what charges are actually paid, as distinct from setting maximum charges.
The regulator will have the power to set the maximum charges. Aer Rianta, the airport authority, will then deliver on the charges. I cannot understand how cases are made for lowering airport charges. How are the airports to run? Who is to pay for staff, for safety and for all the matters which must be paid for? Aer Rianta recoups only 17% of airport charges for income while airport authorities in the UK recoup 50%. Other activities subsidise airport charges. Until now airport charges were subsidised by duty free sales but that is no longer the case. Nevertheless, some operators appear to think that airports can run on thin air and fancy dreams. They cannot; they must be paid for. The suggestion that the State should subsidise an airline when that airline is making a large profit is mind-boggling. The State cannot contribute from public funds to a private operator's growing profits. I am delighted that companies are profitable but we must remember that airports must be paid for.
I concur with what the Minister has said about the provision of proper airport facilities, particularly with regard to reliable safety measures. The provision of these facilities involves a cost factor. It is important that airports are economically viable and are not obliged to cut back on essential services which deal with safety, fire and aircraft in difficulty. These are vital issues that must be given priority by the airport authority. That can only be done if funding is provided. Some airlines are exceptionally successfully while others are not. Some airlines are simply trying to get off the ground.
I would like the Minister to elaborate further on the overall charges, particularly on section 32(5)(a)(ii) which states:
A determination may–
(a) provide– . . . . .
(ii) for limits to apply to particular categories of such charges, . . . .
I would like to know what is included in this subsection so that the commission will have some idea what the Minister and the Department have in mind. There is also reference to a combination of any such limits. Perhaps the Minister could deal with the "particular categories" and identify what the Department has in mind.
I would like to address the two points raised by Senator Ryan. He is coming a little nearer to what I tried to say in the beginning and perhaps he knows that. I believe, as he does, that there should be a minimum period for reviews and that it should be written into the Bill. As he correctly pointed out – and we will all keep away from names and labels – even though the Bill clearly provides that the regulator must have reasonable grounds, there must as a corollary be a duty on the regulator to investigate the grounds and determine whether they are reasonable. He, she or the three man commission may not always be able to decide with the flip of a coin that the grounds are vexatious. For that reason, and to be fair to the regulator and all of the other users, the Minister should seriously consider Senator Ryan's point and agree to a minimum period of review. This would cut down on the potential for daily requests for reviews.
My officials have explained that point to me. It is after two years. The regulator cannot allow a review until after another two years have passed.
It is in the legislation.
Senator Ryan asked another question about the minimum charge. I too feel strongly about it. The minimum charge can be determined in accordance with the scale of the operation of the applicant for review. It is not up to me to decide how that is done and I cannot articulate how it should be done.
It is not up to me.
There should be a minimum charge. If there is no minimum charge far more opportunistic moves will be made by people who want to milk taxpayers' money. For all of the reasons that the Minister and Senator Taylor-Quinn have so forcefully outlined, airports must operate every day and plan ahead. If every review causes a minimum charge and disruption and turns out to be vexatious – and they will – then they are taking away from the true potential for growth and expansion of those airports and their ongoing viability. The Minister and Senator Taylor-Quinn made the point very forcefully about the need for a minimum charge. I appeal to the Minister to consider providing for this in the Bill on Report Stage.
No, there is no amendment and I will not stipulate a minimum charge because I am not a regulator. The aim of this Bill is to set up a regulator and a commission of regulation. I do not intend to tell the regulator what the minimum or maximum charge should be. I will only tell him that there should be a maximum charge.
Is this enabling legislation?
The Bill allows for the establishment of a regulator, not for stipulating what the charges should be.
We have dealt with section 32(5)(a)(i) which refers to an overall limit on the level of airport charges.
I referred to section 32(5)(a)(ii).
Section 32(5)(a) also states:
(ii) for limits to apply to particular categories of such charges, or
(iii) for a combination of any such limits.
Section 32(5)(a)(i) refers to landing charges, (ii) refers to passenger charges and (iii) refers to the regulator setting limits by putting those two charges together or breaking them down and presenting them as two charges.
Mr. Ryan
I disagree with the Minister's understanding – and it is very presumptious of me to say this—
The Senator can say what he likes.
Mr. Ryan
—of the role of the determination and the two year time lag. I understand that the determination must be made not more than 12 months after the establishment date. It is only when two years have elapsed that people can request a review. After those two years they can make as many requests for reviews as they so wish. I simply ask that this matter be looked at.
I am concerned about section 32(13)(b). I am not trying to trip the Minister up but I have read this provision six times yet I still do not know what it means. On page 19, section 32(13)(f2>b) states: “An amendment made under paragraph (a) shall be in force until the determination is determined under subsection (4).”
Then you must go back to section 32(4).
Mr. Ryan
Section 32(4) states:
A determination shall–
(a) be in force for a period of 5 years, . . .
I do not know what both provisions mean. I am not trying to be smart.
Neither am I. I believe what the Senator is saying to me, though my officials have told me section 32(13)(f2>b) means that a determination can only be revoked. I disagree with both of them. But that is not the nature of an amendment and we are only having a debate on it. I will try to get a legal definition of this provision. I agree that it is not right.
It is unique for a Minister to put her disagreement with her officials on the record.
I do not mind.
I know she does not mind.
I do not want to disagree with them but I just do not think they are right.
Question put and agreed to.
NEW SECTION.
Acting Chairman
Amendments Nos. 29 and 30 are related. Amendments Nos. 27, 29 and 30 may be taken together by agreement.
I move amendment No. 27:
In page 20, before section 33, to insert the following new section:
"33.–(1) The Commission shall perform its functions under sections 10 and 32 in the manner which it considers is best calculated–
(a) to further the reasonable interests of users of airports to which section 31 applies,
(b) to promote the efficient, economic and profitable operation of such airports,
(c) to encourage investment in new facilities at airports in time to satisfy anticipated demands by the users of such airports,
(d) to impose the minimum restrictions that are consistent with the performance by the Commission of its functions under sections 32 and 33, and
(e) to have due regard to other revenue earned by the airport authority at an airport to which Part 3 applies which is derived from services which are not subject to competition.
(2) In performing its functions the Commission shall take into account the international obligations of Ireland.".
The Bill as drafted does not provide for the economic operation or the development of airports. This section is skewed totally in favour of the airlines, particularly given the narrow definition of airport users. That is my personal view and I am sure Senators will express views to the contrary in a few minutes. Perhaps I will have to reconsider. The original definition of airport users, on which there was consensus, should be re-examined. The Minister has made a commitment to do that before Report Stage.
Under this section the development and operation of airports is based solely on the requirements of the airlines and ignores other interested parties such as the State, passengers, tourism interests, business interests and local communities. The section does not take account of the fact that airports require a long-term planning horizon if they are to deliver capacity in time to meet demand – a point made in previous amendments to other sections.
This contrasts with the shorter-term focus of the airlines. Some airlines have such a short-term focus it is as if they are playing leapfrog. Airports must invest in fixed infrastructure while airlines have mobile assets. That is an important distinction on which the Minister and other speakers have elaborated. A reasonable rate of return on capital invested will not provide for the financial viability of the airport.
The British Act was selectively applied to this section but the fundamental provision necessary for the proper determination of airport charges, as set out in the British airports Act, is not included. Section 39 of the British Act sets out four conditions which the regulator must take into account. It must further the reasonable interests of users of airports in Britain; promote the efficient, economic and profitable operation of the airports, encourage investment in new facilities at airports; satisfy anticipated demand by the users of the airports and impose the minimum restrictions consistent with the performance of its functions.
The Bill makes no provision for the regulator to have regard to existing international agree ments, such as bilateral agreements, the Chicago convention, and ICAO and EEA undertakings. The British Act includes a section similar to the proposed new section which takes these issues into account. The Minister knows better than most that we are tied into international and European civil aviation organisations – Ireland signed up to international agreements which deal with safety and security.
The Shannon stopover is an issue which would interest Senator Taylor-Quinn.
The Minister for Foreign Affairs has painted an appalling scenario for that.
The Minister had nothing to do with the stopover, it was Government policy.
It was the decision of the Minister for Foreign Affairs.
It was Government policy, it has nothing to do with the regulator.
I apologise to the Senator for my misinterpretation of the issue and I ask that my statement be erased from the record.
That is not up to me.
It is on the record now.
I acknowledge that I misinterpreted the issue.
The Minister for Foreign Affairs made the decision.
Mr. Ryan
The Senator was not so tolerant two weeks ago when he was shouting at me.
The Bill, as drafted, does not require the regulator to pay any heed to some of the issues I have raised.
This is an extremely important section because it deals with the purposes to which airport charges are put. The commission has specific responsibilities and, in making decisions on airport charges, must bear in mind the objectives. This section clearly outlines those objectives but they are limited. They are tied into the basic economic and accounting realities – economic viability and the provision of efficiency and competitiveness, quality of service, operating and other costs, efficient and effective use of resources, reasonable rate of return on capital and the operating and other costs incurred by an airport authority. All those are related to the tight structural management of the company.
While all the conditions listed in section 33 are necessary, there is a need to broaden the remit. Paragraph (h) in amendment No. 33 would achieve that. It reads: “(h) the encouragement of investment in new facilities at airports in time to satisfy anticipated demand by the users of such airports,”.
Senator Liam Fitzgerald's amendment would insert a similar provision. It is important that the idea be taken on board because, unlike airlines, airports must make policy decisions in relation to infrastructural development years in advance of when it will be required. They must anticipate requirements and be in a position to forecast the infrastructural facilities which will be needed at the airport. Unlike airlines, which can change airports, airports are not mobile assets – they are fixed in one place and can only develop in that place. Consideration must be given to the airport authority in this matter. That is why it is so important to encourage investment in new facilities at airports in time to satisfy anticipated demand by the user. The airport cannot suddenly provide the capacity for an airline which might want to use it, it must be provided in advance. That involves forward planning and strategic thinking on the part of the airport management.
This section ignores the importance of regional airports. Airports outside Dublin, such as Shannon and Cork, are hugely important to those regions. They are the cornerstones to economic development in tourism and manufacturing in those areas. They have been the means by which communities have promoted their tourism product and manufacturing incentives. Shannon Airport was a major factor in selling areas such as Limerick, Ennis and Shannon and was a huge attraction for drawing investment into the region. It is important these matters are considered when discussing the objectives of airports. That is why I include in the amendment the wording "the specific requirements and needs of the regions and the communities where such airports are located".
There is a cost for airports in providing special facilities for different groupings, especially for the disabled. It is important proper facilities are included in all airports, not just on a token basis but on a much broader basis than has happened heretofore. That should be seen as normal practice. A cost is involved so it is important that the regulator would have the provision of these facilities as an objective. It is very important that airports remain as viable economic entities. The Minister took on board an earlier amendment which dealt with two or more airports being treated as a group rather than singly. That will lend to paragraph (k) of my amendment.
There is nothing unusual in what I propose. I am sure the Minister and most Members would agree with the thrust of my amendment and I hope she will take it on board. Many of the paragraphs are similar to the paragraphs in the new section proposed by Senator Fitzgerald. The Bill will be improved and strengthened if my amendment is included. The airports and the regions in which they are located will be improved by the inclusion of this amendment.
Mr. Ryan
I had best lay down a marker because there is a difference of view between myself and the Minister and, perhaps, other Members. I do not believe airports should be sinks for public money.
Neither do I and I agreed with the Senator on that last week.
Mr. Ryan
However, they should not be excessively constrained by a commercial definition of profitability. The Minister's amendment No. 29 states: "in the context of a sustainable and profitable operation of an airport". One could almost believe that sustainable and profitable were the same thing. It is sometimes good to invest in airports, even when the short-term prospects are not good, much the same as it is good to invest in road infrastructure in a recession to encourage expansion from the recession.
I understand the Government has asserted that the EU prevents the State from investing in airports. The Government and the Minister are wrong to say that it is now difficult under EU regulations to invest in airports. I am at a loss to understand why we are going through considerable contortions when a large amount of public money is available which could be used to develop airports. We are trying to figure out what to do with them when what they need most are large injections of capital. There are limited understandings – Department of Finance understandings – of what is regarded as an acceptable rate of return and these are very narrow. There are social rates of return on many investments which cannot be measured. It should be remembered that the Department of Finance still believes that education is a social service to help the poor whereas I regard it as an economic investment which produces a vast return to society. There is a fundamental difference of opinion between myself, the Department and, I suspect, the Minister, and it is a similar case as regards this legislation.
Commercial criteria should be used to adjudicate on airport performance because the bottom line is one of a number of effective ways of examining how people use resources. However, that is not to say that profitability and commercial viability ought to be the dominant criteria for the development of regional or other airports. Therefore, I am concerned by the Minister's definition. One of the reasons I support Senator Taylor-Quinn's amendment is that the concern, especially for disabled passengers, must be moved beyond definitions of commercial performance and must be separated from that. One of the most welcome sights I have seen recently was a front page advertisement from Aer Rianta regarding a certain airline – we cannot name it – which distinguished itself by humiliating people by charging £15 for the use of a wheelchair. It has finally been told to behave itself, and not before time.
We need to be careful and it is a matter of how we measure things. I have no problem saying that, most of the time and under most circumstances, airports should be self-financing. However, I would be concerned about that because, whatever the Government or I may say, the good times will not last forever. Some time this country will experience another recession. That is an inevitability and the way market economics and the world work. I would not like us to be constrained by either narrow interpretations of EU regulations or narrowly defined legislation from sustaining regional airports which are and should be instruments to get us out of a recession as well as facilities we provide to assist successful industry. The Minister's amendment further tightens the limited horizon of the commercial focus of the Bill.
I listened to some of the debate, especially Senator Ryan's contribution. Airports should be sustainable and they should be profitable, especially given the number of people travelling at present and which will certainly increase. That has been aided by competition between airlines. Senator Ryan earlier decried the ethos which applies to business in general. What makes it competitive and efficient is competition. I could not believe it when I heard him decrying it. In section 33, the regulatory authority will have to take into account the cost competitiveness and operational efficiency of airports. I can think of nothing which will give more impetus to that than competition between the various airports. If the Minister can inject that into the system, it will facilitate cost competitiveness and efficiency and will also facilitate the travelling public by ensuring people can travel in a cost competitive way. It is essential that we who live on an island on the west coast of Europe and are a peripheral nation of the EU have competitive transport rates for goods and passengers as compared with the rest of the European Union and the wider world. Rather than decrying competition, we should ask the Minister, where possible – I know it is difficult – to ensure maximum levels of competition.
There is another point on which I disagree with the previous speaker. Regional airports are essential to the economic—
If the Senator is referring to airports such as Kerry, they are not included in this legislation.
Knock Airport, which is not a regional airport, is seeking investment at present to facilitate economic development at the airport, and that is similar to what Shannon Airport did many decades ago. That is a sensible economic approach to take because it will relieve investment in other areas of infrastructure where the State will not receive a return. It can be argued that there are instances where normal commercial criteria should be set aside in favour of regional development.
It is a complex issue but my main point is that competition is the life of trade and it will also be the life of efficiency and economies of travel in the future as well.
Here we are again and we still are not through it. We needed the injection of debate from Senator Walsh. The four of us had become a cosy club and we needed the cold douche of reason.
A good capitalist contribution.
Yes, but then he went back on it and said we should be putting money into Knock and Farranfore. He debated the two sides of the story as well. We cannot look at these amendments without looking at section 33, which we seem to have ignored. Section 33 lays out that the commission shall aim to facilitate in making its determination the development and operation of cost effective airports which meet the requirements of users and shall have due regard to the various factors laid out there. The amendments are down as if there was not a section 33. I and my colleagues have put forward in section 33 the matters to which the commission should have regard. I will go though the three of them now. Both Senator Liam Fitzgerald and Senator Taylor-Quinn have included in their amendments much of what is in section 33 as if it was not already there.
Senator Fitzgerald's amendment refers to furthering "the reasonable interests of users of airports to which section 31 applies”. If one were to accept that, one would have to take out section 33 because section 33 states the legislative requirements which more or less equate with what both of the Opposition amendments are about, except perhaps the wording would be slightly different in some cases. I will go through some of the others now. We will leave amendment No. 29 for the moment because that is my own amendment.
Amendment No. 30, in the names of Senator Madeleine Taylor-Quinn and Senator Fergus O'Dowd proposes the same matters as are already in section 33, not perhaps in exactly the same words but in much of what is there. On paragraph (j) which proposes the provision of adequate and proper facilities for disabled persons using the airport, Aer Rianta already has by-laws which enabled it to make provision for wheelchair users and access. Like Senator Ryan, I was delighted to see the quarter page advertisement in the Irish Examiner, The Irish Times and the Irish Independent and in all of the newspapers, which I think were repeated on Sunday, whereby they set out the by-laws allowing not just for that but making it mandatory that all airlines should provide for that. It is a disgrace that people travelling with airlines were refused wheelchairs for getting on or getting off purposes except where they could pay a charge of £12, or £15 now. In this era of acceptability and equality, if one has special needs then the special needs should become mainstream, not the other way around. They have the power to do that and they have taken it in hand. The Senators will have seen the advertisements as we all did. They have these by-laws to make proper provision and they have already invoked them which is very good. I am delighted they have done so.
I will return to Senator Liam Fitzgerald's amendment but paragraphs (h) and (k) of amendment No. 30, as I said, are already catered for. On paragraph (i) concerning regional development, Aer Rianta has never had a regional remit as such. It has adopted it but it has not had it in law. The regulator will need to understand what he is to take into account in terms of regional development. Perhaps we could have due regard to the reasonable aviation interests of the regions in which the airports are located or perhaps the contribution of the airports to balanced regional development.
On paragraph (j) I have spoken about the provisions for disability. They have recently adopted a by-law, statutory instrument 469 of 99. They have requested all airline service providers and other agencies to do all that is reasonable to accommodate the needs of person with a disability by providing special treatment or facilities. We all agree they are right in that.
Senator Fitzgerald's amendment on the commission's international obligations in performing its functions proposes that "the Commission shall take into account the international obligations of Ireland". It is very proper that this be accepted because the Senator listed all the obligations to which we subscribe or to which we are members or partners. That section is acceptable and proper. Paragraph (d) of the Senator's amendment states: “to impose the minimum restrictions that are consistent with the performance by the Commission of its functions under which sections 32 and 33”.On Senator Madeleine Taylor-Quinn's amendment, we should do something about the regional remit, whatever way we could incorporate it. Section 33 is reasonable in that it lays down in the legislation what the regulator and the commission should have due regard to and lists those items. We will not be involved in repeating items that are already in the list. Of Senator Fitzgerald's amendment, we would be glad to take paragraph (d) and subsection (2) and in Senator Taylor-Quinn's and Senator O'Dowd's amendments, we wish to examine the regional remit section. It would read something like, “the contribution of the airports to balanced regional development”. It is particularly important in Shannon and in Cork too because they are pivotal to their regions and to sustained growth and development. An airport is quite central to all that goes on in a huge region. I am thinking particularly of the ongoing march of Shannon airport and its continuation.
That means we will return with it on Report Stage but at last we will have refined it. We are working through the various points put to us and trying to winnow them into manageable proportions and still incorporate them in keeping with the integrity of the Bill. To return to those two amendments, in Senator Fitzgerald's amendment, we are examining paragraph (d) and subsection (2) and in Senator Taylor-Quinn's amendment, we are examining paragraph (i) and trying to achieve a proper wording for that.
I will go on to the Government amendment, about which there was some concern. I advise Senator Taylor-Quinn that paragraphs (h) and (k) are already in section 33. Paragraph (i) is the regional remit one and the one on which we will try to put a wording. Paragraph (j) is the one they already have concerning the legislative powers to enable them to respond properly to the needs of the disabled or any other group and they have shown good faith of that quite recently in the past week in their ads.
My amendment No. 29 states:
In page 20, paragraph (b), line 16, after “investment,” to insert “in the context of the sustainable and profitable operation of an airport,”.
We should be quite clear. Aer Rianta is keen that this would come from it. Members have a right to know if a draftsman put an amendment forward or if I did. Aer Rianta feels it should receive the level of charges which would allow it to run an airport in a sustainable and profitable operation. I agree with everything the Members said about the need for infrastructure.
A commercial State company is meant to be able to pay its way – that is the ethos of a commercial State company – and not be reliant on hand-outs or payments from the Exchequer. As Senator Ryan said with regard to the growth factor, no matter what the OECD may say about it being in double figures for many more years – more years than many of us will be around – there will be a down turn, of that we can all be assured. It will be better for a commercial State company to be used to paying its way and being viable in case the bad times come, although we hope they will not. With regard to amendments Nos. 27 and 30, I will come back with a composite amendment embracing paragraph (i) in Senator Taylor-Quinn's amendment and subsections (1)(d) and (2) in Senator Fitzgerald's.
Amendment, by leave, withdrawn.
SECTION 33.
Government amendment No. 28:
In page 20, paragraph (a), lines 13 and 14, to delete “the airline industry” and substitute “those on whom the airport charges may be levied.”.
This amendment proposes to delete "the airline industry" and substitute "those on whom the airport charges may be levied". It is considered that that phrase more accurately reflects the objective of regulation. The term "airline industry" is a very wide concept and it could be construed as encompassing all elements, including manufacturing, parks and so on. The amendment relates to the precision of the words.
Amendment agreed to.
Government amendment No. 29:
In page 20, paragraph (b), line 16, after “investment”, to insert “in the context of the sustainable and profitable operation of an airport,”.
Amendment put and declared carried.
I move amendment No. 30:
In page 20, between lines 29 and 30 to insert the following new paragraphs:
"(h) the encouragement of investment in new facilities at airports in time to satisfy anticipated demands by the users of such airports,
(i) the specific requirements and needs of the regions and the communities where such airports are located, and
(j) the provision of adequate and proper facilities for disabled passengers using the airport, and
(k) the continuance of the airport or airports as viable economic entities.”.
I am pleased the Minister—
We cannot reopen the discussion.
I thought I could come back in after—
I was not allowed either.
Acting Chairman
Is the amendment being pressed in view of what the Minister said?
In view of what the Minister said, I am particularly concerned that she has not taken on board paragraph (h) in my amendment and subsection (1)(c) in Senator Fitzgerald's amendment on encouraging investment in new facilities.
Acting Chairman
Senator Fitzgerald's amendment has been withdrawn.
I realise that but—
Acting Chairman
In view of what the Minister said—
I thought I would be able to come back on it and that is why—
Acting Chairman
It was discussed with amendment No. 27.
Can the Minister come back on this amendment? This is very important and Senator Fitzgerald and I tabled almost identical amendments to that subsection. I thought we could come back in once the Minister had responded.
Acting Chairman
The Minister has responded and she said she will look at it—
Not at paragraph (h) in my amendment and subsection (1)(c) of amendment No. 27. The Minister will look at paragraph (i) in my amendment and subsection 1(d) in Senator Fitzgerald's amendment. May I deal with paragraph (h) in my amendment?
My amendment included subsection (1)(c) – to encourage investment in new facilities.
That is right. My amendment included paragraph (h) – the encouragement of investment in new facilities at airports.
Acting Chairman
Is the House agreeable to have a further discussion on amendment No. 30? Agreed.
This is a particularly important amendment and it should be included in the objectives of the commission because of the anticipatory element of the amendment. We are talking about pre-planning, strategic planning, in terms of putting in place infrastructure which would be ready and available for future development within the airport. We are talking about forecasting and projecting figures in terms of the number of users of and numbers going through the airport and the required facilities to cater for them.
It is important that the commission encourages the airports to provide and encourage investment in these facilities well in advance of when they are required. It is vital to the amendment tabled by the Minister which reads "in the context of the sustainable and profitable operation of the airport" to which we have just agreed. The airports can only be sustainable and profitable if investment in new facilities is encouraged in those airports in time to satisfy the demands which will arise. One amendment feeds very easily into the other – in fact, one depends on the other. They all work in work in tandem. It is in the interests of the Bill to include the amendment.
I point out that paragraph (a) refers to “a necessary level of investment in airport facilities at an airport to which the determination relates, in line with safety requirements and commercial operations in order to meet current and prospective needs of the airline industry”.
I know I am out of order, but I fully accepted that when the Minister explained it.
Acting Chairman
I cannot run a disorderly House.
I do not wish to be disorderly.
Mr. Ryan
One could never accuse the Acting Chairman of running a disorderly House.
I think the Acting Chairman has a lovely influence. I found myself lowering my voice too.
Acting Chairman
Thank you.
I am totally satisfied this is included in section 33(a).
Acting Chairman
Senator Taylor-Quinn, are you agreeable to withdrawing your amendment in view of what the Minister has said?
I will withdraw the amendment considering that the Minister said she will come back on Report Stage.
Amendment, by leave, withdrawn.
Section 33, as amended, agreed to.
Section 34 agreed to.
SECTION 35.
Government amendment No. 31:
In page 20, subsection (3)(b), line 42, to delete “order by the Commission” and substitute “determination”.
Amendment agreed to.
Government amendment No. 32:
In page 21, subsection (7), line 29, to delete "order" and substitute "determination".
Amendment agreed to.
Government amendment No. 33:
In page 21, subsection (7), line 30, to delete "order" and substitute "determination".
Amendment agreed to.
Government amendment No. 34:
In page 22, subsection (12)(a)(ii), line 13, to delete “user” and substitute “airport user”.
Mr. Ryan
The Minister withdrew amendment No. 25 which involved the substitution of "airport user" for "user". I presume the Minister will withdraw amendment No. 34 which involves the same change of phraseology.
Acting Chairman
Does the Minister intend to withdraw amendment No. 34?
Yes.
Amendment, by leave, withdrawn.
Question proposed: "That section 35, as amended, stand part of the Bill."
Mr. Ryan
Section 35 relates to aviation terminal service charges, as the Minister well knows, whereas section 32 relates to airport charges. There is an almost identical provision under section 35(12) for a review of a determination. Without going into it again, I suggest to the Minister that all the issues which arose in regard to the determination and the review of determinations of airport charges ought to be looked at in terms of the determination of aviation terminal service charges as well. Everything that was said would apply here as well and, perhaps, even more so because it would be the airlines—
The Irish Aviation Authority.
Mr. Ryan
I suggest that if the question of multiple appeals should arise and there are delays when people appeal or seek a review, there ought to be some way to prevent them.
I do not like to be pernickety – I suppose I have been in the House too long. I asked the Minister about the precise meaning of a little phrase in section 32(13)(b) which I do not understand. However, the equivalent phrase is missing from section 35(12) and I draw the Minister's attention to that. Could that be examined before Report Stage because I do not understand what it means in section 32 nor do I understand why it is left out of section 35?
We will examine that.
I concur with Senator Ryan regarding the deep discussion we had on airport charges on section 32. The realities are that they almost apply identically because airports refer to airport terminals and I wonder why there was even a need to include the section. Will the Minister elaborate on the specific differences between aviation terminal charges and airport charges? What are the two different categories? What could the commission expect to consider? Will the Minister identify clearly the difference between the two charges?
The section deals with the regulation of aviation terminal service charges. These are charges for air navigation services provided by the Irish Aviation Authority to aircraft taking off from or landing at Irish airports. Procedures, durations and applicability of charges for determination are similar. The statutory basis for the terminal charges currently levied by the IAA is contained in section 43 of the Irish Aviation Authority Act, 1993, and associated statutory instruments. The section deals with the IAA and the charges it imposes and I presume the other charges are imposed by Aer Rianta.
Will the commission be responsible for imposing charges on airlines using Irish airspace while the IAA controls Irish airspace? Will it have responsibility for airlines flying in Irish airspace which are provided with navigational facilities by the IAA?
No, the commissioner will not have that responsibility as it is controlled by Europe but he will set the maximum aviation terminal charge to be imposed by the IAA. Flying in Irish airspace is controlled by Europe, not the commission.
Will he have an input to the formulation of those charges?
No.
Question put and agreed to.
Section 36 agreed to.
Amendment No. 35 not moved.
Section 37 agreed to.
NEW SECTION.
Acting Chairman
Amendments Nos. 38 and 40 are related to amendment No. 36 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 36:
In page 23, before section 38, to insert the following new section:
"38.–(1) The persons specified in subsection (2) may appeal to the High Court against a determination or an amendment to a determination made by the Commission pursuant to section 32 or section 35, either in whole or in respect of one or more parts thereof, or a request for information made by the Commission pursuant to section 32 or section 35, either in whole or in respect of one or more parts, and the High Court may confirm or modify the determination or amendment or request for information either in whole or in respect of one or more parts making any consequential amendments to the determination or amendment to a determination or a request for information, as the High Court may think fit, or prohibit the Commission from implementing either in whole or in respect of one or more parts thereof, the determination or amendment to a determination or request for information.
(2) The following persons shall be entitled to take an appeal referred to in subsection (1) above:
(a) an airport authority, in respect of a determination pursuant to section 32(2), or in respect of an amendment to a determination pursuant to section 32(13), or in respect of a request pursuant to section 32(12);
(b) a person subject to airport charges, in respect of a determination pursuant to section 32(2) or in respect of an amendment to a determination pursuant to section 32(13);
(c) the Authority in respect of a determination pursuant to section 35(2) or in respect of an amendment to a determination pursuant to section 35(12) or in respect of a request pursuant to section 35(11); and
(d) a person subject to airport terminal services charges, in respect of a determination pursuant to section 35(2) or in respect of an amendment to a determination pursuant to section 35(12).(3) A person entitled to take an appeal pursuant to subsection (2) above shall take any such appeal within the following periods:
(a) in respect of persons referred to in subsection (2)(a) above, the period of 28 days following the date of receipt of notice pursuant to section 32(10) or the date of receipt of a request pursuant to section 32(12), as the case may be;
(b) in respect of persons referred to in subsection (2)(b) above, the period of 28 days following the date of publication of the notice referred to in section 32(10)(a);
(c) in respect of persons referred to in subsection (2)(c) above, the period of 28 days following the date of receipt of notice pursuant to section 35(9)(a) or the date of receipt of a request pursuant to section 35(11); and
(d) in respect of persons referred to in subsection (2)(d) above, the period of 28 days following the date of publication of the notice referred to in section 35(9)(a).(4) Notwithstanding an appeal under subsection (1) above by a person specified in subsection (2) and within the time specified in subsection (3), the appeal shall not affect the validity of the determination or amendment to a determination, and its operation unless, upon an application to the High Court, that Court suspends the determination or amendment to a determination until the appeal is determined or withdrawn.
(5) The hearing by the High Court shall be a hearing on the merits of the case and the parties shall be entitled to introduce all relevant matters whether or not those matters were presented to the Commission in relation to its determination, amendment or request.".
The Bill only provides for judicial review, which is considered to be quite limited. Both judicial reviews on legal matters and an appeal on factual matters are provided in other regulated areas, such as telecommunications and electricity and I do not understand why there should be different provisions for aviation regulation because of the importance of economic regulation and its impact on the airport authority's income.
The provision of a statutory appeal will help the commission to determine the airport charges and will provide the affected parties with a forum to resolve any issues in regard to its representations if they feel, for example, that they have not been addressed adequately. Consistent with the Minister's recommendations in the White Paper on Governance and Accountability in the Regulatory Process the section provides that the determination will be effective during any appeal. I propose an appeal process for a rehearing of merits and it should be examined on a much wider basis.
Another obvious deficit in the legislation is the lack of an appeals mechanism. While a judicial review is a form of appeal, it is laborious, costly and time consuming and is, therefore, not an immediate process. There is a need for something more specific, clear and urgent. An appeals mechanism has been clearly defined in legislation relating to all other semi-State sectors and there is no good reason for not providing a proper appeals mechanism in this legislation. Apart from the opportunity to obtain a judicial review, there is a need to provide an opportunity to appeal to the High Court if an applicant is not satisfied with the commission's determination. The right and freedom to appeal to the courts should be provided for in the legislation. Senator Fitzgerald and I concur in this regard and our amendment proposes such a facility. The Minister should not have a problem with it.
Mr. Ryan
Our amendment relates to a specific and wrong tightening up of the rules in the section. It deals with the attempt to restrict the grounds under which leave to appeal a judicial review may not be granted, which is possible under the Constitution. Section 38(5)(a) currently states: “The determination of the High Court of an application for leave to appeal for a judicial review. . . shall be final and no appeal shall lie from the decision of the High Court or the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies. . . ”. Our amendment proposes that the Supreme Court should also certify so as to allow for the possibility of the Supreme Court examining the High Court's decision to refuse a judicial review. The Bill provides that if the High Court says “no” there is no further recourse.
That is a bad principle, which is envisaged in the Constitution for exceptional circumstances provided for by legislation. It is not the standard position and if the State's attempts to restrict judicial review become standard practice, there will be a restriction on the rights of the citizen in general and section 38(5)(a) is a particular example of it. An attempt to restrict the application of judicial review and to appeal to the Supreme Court is also contained in the Planning and Development Bill, 1999.
It is an important amendment in terms of the way we deal with judicial review in general. I do not agree with the amendment tabled by Senators Fitzgerald and Taylor-Quinn. There may well be a case for an appeals mechanism against the determination of the commission. That is always interesting but I do not agree with the notion that people could keep going back to the High Court. The list of people set out includes a person subject to airport terminal services charges and a person subject to airport charges. Does that include individual customers, because they sometimes pay? It is wrong that each of those could appeal to the High Court in perpetual motion. That is not what the High Court is for.
It is not for the High Court to decide prices. If that was the case every time the Minister allowed the ESB to increase its prices – I am not sure if she still has that power – I could have appealed to the High Court. That cannot be allowed. It is not the function of the courts to determine such things and to allow that would create an endless quagmire. It must also be borne in mind that at least one of the bodies will be a State organisation, which will use resources that would otherwise be part of the profits it would pay back the State for its investment to continue the process of a merry-go-round of High Court actions. I do not agree with amendment No. 36, nor do I agree with the restriction in section 38 on the right of appeal to the Supreme Court, which is what the amendment in my name is concerned with.
I am astounded at the approach of Senator Ryan to amendment No. 36. I thought he was a social democrat.
Mr. Ryan
I am not; I am a socialist.
He is in transition.
Acting Chairman
Senator Taylor-Quinn without interruption.
We may at some stage establish whether Senator Ryan is a social democrat or a social anarchist because I was amazed at his suggestion that the right of citizens to appeal to the High Court should be refused. People and companies do not make appeals to the High Court lightly. However, as a democracy we have basic democratic institutions, principles and rights. I do not see why any group should be discriminated against with regard to their right to appeal to the higher courts. It would be wrong for this House to seek to constrain anybody's right to appeal to the courts.
The courts are there to administer justice. They are vital in a democracy. Legislation should make it easier for companies and people to appeal to the courts. It would be extraordinary to inhibit or restrict them. The suggestion that powerful companies, such as airport companies, should be restricted in their access to the courts is also extraordinary. All traders, whether they are shopkeepers, grocers or whatever have the right to make appeals to the courts on matters such as over or under charging. Individual owners of airlines should not be discriminated against because of their supposed privileged or unique position. That is normal democratic procedure and it is wrong for legislation to inhibit that right. I urge Senator Ryan to reconsider his views on this fundamental principle of freedom in a democracy.
I am aware that Senator Ryan is on a political odyssey.
Mr. Ryan
The Senator is being very helpful this afternoon.
The point he has reached will cause him much grief and the reasons why have been cogently argued by my colleague, Senator Taylor-Quinn. I am aghast at the principle espoused by Senator Ryan and the reasons he has given for opposing the use of the High Court for appeals and for restricting the rights of people to go to court.
Mr. Ryan
I am referring to the High Court.
Acting Chairman
Senator Fitzgerald without interruption. Senator Fitzgerald, we are dealing with the Aviation Regulation Bill, not the odyssey of Senator Ryan, interesting though it is.
The Senator opposes our amendments.
I agree with the views expressed by Senator Taylor-Quinn. Will the Minister explain why if a private citizen, individual or company has a right in law to go to the High Court and fails there, they do not have an automatic constitutional right to appeal to the Supreme Court?
Under the law there is a right to appeal to the Supreme Court, but section 38 does not provide for it. The amendment in Senator Ryan's name is correct and I accept it. It reinforces rather than dilutes the citizens' rights.
We have obtained oral advice from the Attorney General on amendments Nos. 36 and 38 dealing with judicial review, an appeals procedure and litigation. We are awaiting written advice, which I will have for Report Stage. There is a need for an appeals system, but it should not be heavyhanded. I believe there is a way forward. The Attorney General's office has said that amendment No. 36 should not be accepted—
Coming events cast their shadows.
—as the court is not competent to substitute its decision for that of the regulator. We are awaiting that advice in writing. We have provided for judicial review measures, which according to the Attorney General is the appropriate course in the case of decisions by public bodies.
It appears that amendment No. 38 seeks to provide for an appeal on the merits and for judicial review. It would be bad to provide for an appeal to the courts. What is required is a way of appeal that is not heavily regulated. I accept amendment No. 40 and I await the written advice of the Attorney General with regard to amendments Nos. 36 and 38.
Is the Minister obtaining additional advice from the Attorney General on the amendments tabled by Senator Liam Fitzgerald and me in so far as they relate to the appeal mechanism?
Yes.
When seeking that advice will she ask the Attorney General to reflect on the fact that appeal mechanisms have been applied to Eircom and in legislation on other semi-State bodies presented to the Oireachtas?
No. It applies only to electricity, not to telecommunications.
My understanding is that in all the recent legislation on semi-State bodies enacted by the Oireachtas an appeal mechanism was provided.
It was provided for in respect of electricity and telecommunications.
The Senators are incorrect. Judicial review is provided for in the telecommunications regulation legislation while an appeals mechanism is provided for in the case of electricity.
Why are there appeals in the case of electricity and not in the case of airlines? An appeal mechanism must be put in place given the basic principle of natural justice and fair play. If one applies for unemployment assistance or benefit and one's application is refused, one has the basic right to appeal.
Mr. Ryan
One does not go to the High Court.
There should be natural justice.
It is a principle of natural justice. The vehicles of natural justice should not be impeded or restricted—
Or diluted.
—in any way or at any level particularly in legislation passed by the Houses of the Oireachtas. I am sure the Minister will have a reasonable response. I hope it will not be an ultra-right wing reactionary response on her part or the part of the Attorney General's office.
Would it ever?
Mr. Ryan
Between my odyssey, my politics and my colour of pink or red—
I understand the Senator went from green to neutral to red.
Acting Chairman
Senator Ryan without interruption please.
The odyssey is not terminated yet.
Mr. Ryan
I love it when they interrupt me. It makes life much more interesting. The Acting Chairman should not worry about me. There should be an appeals mechanism but the idea that the High Court, which is already swamped with work with consequent delays of 18 months to two years, would be the vehicle for appealing aviation service charges or airport charges generally is ludicrous. Only people who assume that those who would go there have lots of money would see it as the natural route.
It is possible to have simpler mechanisms which would allow everybody, including very small airline operators who could not afford the costs of the High Court, to appeal via an arbitrator or some other method. The idea that people who are aggrieved about levels of charges would head for the High Court to have the charges reviewed is ludicrous. It is anti-egalitarian and it serves no purpose.
It serves a purpose in that all the lawyers get pots of money.
Mr. Ryan
We all know who most of them vote for anyway. I am glad the Minister accepted my amendment and I thank her for doing so.
Acting Chairman
We have not yet reached amendment No. 40.
Mr. Ryan
I will not be able to speak on it when we reach it so I must speak about it now.
Acting Chairman
We are moving along swiftly now.
Mr. Ryan
I will not be able to speak on it because the amendments are being discussed together. If I do not speak now, I will have to forever hold my peace. Amendment No. 40 restores the right of a person to appeal to the Supreme Court. This is a fundamental right which should not be tampered with and I thank the Minister for accepting the amendment.
Amendment, by leave, withdrawn.
SECTION 38.
Amendments Nos. 37 and 38 not moved.
Government amendment No. 39:
In page 23, subsection (1), line 3, after "apply" to insert "for".
This amendment corrects a typographical error.
Amendment agreed to.
Mr. Ryan
I move amendment No. 40:
In page 23, subsection 5(a), line 35, to delete “certifies that its” and substitute “or the Supreme Court certifies that the”.
Amendment agreed to.
Section 38, as amended, agreed to.
Sections 39 and 40 agreed to.
SECTION 41.
Government amendment No. 41:
In page 25, subsection (4), lines 30 and 31, to delete "tour operators or travel agents," and substitute "a tour operator or travel agent".
The amendment is technical because the reference should be singular and not plural.
Amendment agreed to.
Question proposed: "That section 41, as amended, stand part of the Bill."
This section is extremely important. Authorised officers must be in a position to do the work required by the commission and the section deals in great detail with this area. The powers provided in it are similar to those given to the CAB and perhaps they are too strong. In the process of selecting those officers, regard must be had to the suitability of the applicants. They should not operate as a type of Gestapo force and behave in a manner which is totally over the top. A certain amount of common sense and balance in terms of how the legislation is applied is extremely important. For example, the section gives an authorised officer the power to enter a premises or place owned or occupied by a person at any reasonable time. Who will determine what is reasonable?
There is a need for common sense. In the process of carrying out their duty, the authorised officers should take an approach that is reasonable and fair. It should not be heavy handed as in other instances. Much depends on the type of person selected for the job and there should be an in-house training course on how the officers should deal with their respective clients.
Mr. Ryan
A friend of mine, of whom I have learned to be wary, uses the phrase "maybe I am stupid". However, perhaps somebody can explain to me why an authorised officer would exert these powers? What is the purpose?
He may need them in carrying out his functions and duties. He may need to get documentation or information. There are authorised officers under most regulatory Bills.
Mr. Ryan
This body will set up a commission whose function will be to set charges.
Overall, yes.
Mr. Ryan
Why would a body, which has a function of setting charges, need the power to enter any premises, require people to produce books or documents and secure for later inspection any premises or part thereof in which books, documents or records are kept, etc.? They are similar powers to those attached to a search warrant, although the section states later that an officer cannot enter a private dwelling. These are not powers to investigate an offence. They appear to be powers that the commission can exercise when it wishes.
Perhaps it should include a reasonable ground such as where it believed it had been refused information which it needed or believed information had been withheld. I may have missed something in the section but it appears the commission can do it if it wishes. However, to take such action, an agent of the State should at least have reasonable cause based on some suspicion of some wrongdoing. It should not be the case that officers of any State agency can enter premises and take such action simply as a way of gathering information for their own convenience. They can ask for the information and if they believe information has been withheld, then they can use these powers. As it stands, there is no caveat that there must be a reason for the action other than inclination.
There is no inclination. How could that be the case? The House passed the Food Safety Authority of Ireland Act, 1998, which allowed for authorised officers. If officers feel that information is being withheld, they can act. I am sure such a situation will not arise, but provision must be made for it. If there is a suspicion that information is being withheld, an officer should be able to get it.
Question put and agreed to.
Section 42 agreed to.
SECTION 43.
Government amendment No. 42:
In page 26, line 20, to delete "authorised officer of the Commission" and substitute "authorised officer".
It should be "authorised officer" because that is already defined in the interpretation section.
Amendment agreed to.
Question proposed: "That section 43, as amended, stand part of the Bill."
Mr. Ryan
Is this form of indemnification standard in legislation because I do not remember seeing it before?
Is the Senator talking about the authorised officer?
Mr. Ryan
No. I am talking about the indemnification of an officer who carries out his duties in pursuance of the functions of the commission in a bona fide manner. The section states that the "Commission shall indemnify such member of staff or authorised officer". Is that standard in legislation because I do not remember seeing it before?
Does the Senator mean where it covers its staff?
Mr. Ryan
Yes.
It is interesting that the Senator should raise that issue because a chief executive officer in another semi-State company recently asked his board to indemnify him in an upcoming case and the board did so. Legal advice was then taken on the bona fide performance of his duties and the advice was that the board had the right to indemnify him. That was the opinion of one senior counsel. I only received the news this morning and that is why it is on my mind.
I assume that departmental officials would be indemnified if the need arose in the course of their work and this is a follow on to cover people who will work for the commission.
I do not know but I will find out for the Senator. The same provision is in the Electricity Regulation Act which was passed last year. This issue arose this morning and that is why it is on my mind.
It clarifies the situation without the need to pay a barrister.
Question put and agreed to.
Sections 44 to 46, inclusive, agreed to.
SECTION 47.
Mr. Ryan
I move amendment No. 43:
In page 27, line 1, after "amended" to insert "in paragraph 1(2) of the First Schedule, by the addition of ‘the Commission for Aviation Regulation' ".
The Bill amends the Third Schedule of the Freedom of Information Act which states that clauses on confidentiality in legislation shall not be regarded as interfering with the operation of the Freedom of Information Act. There is a list of legislation where such clauses arise and it states that for the purpose of the Freedom of Information Act the clauses on confidentiality shall not apply in those cases. It would be better to also mention the commission in the Freedom of Information Act.
The amendment proposes to insert "in paragraph 1(2) of the First Schedule, by the addition of ‘the Commission for Aviation Regulation' ". This means the commission for aviation regulation would be referred to in the First Schedule as a body covered by the Freedom of Information Act, like many other bodies, and in the Third Schedule of this Bill and its provisions for confidentiality would not be regarded as preventing the operation of the Freedom of Information Act. It seems inconsistent to refer to the legislation in the Third Schedule and not to refer to the commission in the First Schedule. It is complicated so I will understand if the Minister wants to think about it.
I understand what the Senator is saying because it arose in the Electricity Regulation Act. The Department of Finance lays down the law in this regard. The Minister of State at the Department of Finance, Deputy Cullen, spoke about it here recently.
Mr. Ryan
The irony of the Department of Finance dealing with freedom of information does not escape me.
It is the function of the Department of Finance to make the necessary amendments by way of regulation to the Act. The drafting of those regulations is in hand. The three regulators for aviation, electricity and telecommunications will be public bodies by the autumn, subject to freedom of information.
Amendment, by leave, withdrawn.
Section 47 agreed to.
Section 48 agreed to.
SECTION 49.
Government amendment No. 44:
In page 27, lines 7 and 8, to delete "Air Navigation and Transport (Amendment) Act, 1998" and substitute "Act of 1998".
This came up in the interpretation section.
Amendment agreed to.
Section 49, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 7 June 2000.
I thank you, a Leas-Chathaoirligh, for having such an uplifting and tranquillising effect on us when you took the Chair which helped us to do our work quickly. I enjoyed the two days on Committee Stage. We will have as lively and good a debate on Report Stage next Wednesday. I thank Members and my officials for the work they have done.
While the Minister did not accept all our amendments, we appreciate that she took the principle of most of them on board. We will be in contact with her between now and Report Stage with a view to agreeing amendments.
Mr. Ryan
I thank the Minister for dealing with all the amendments, which is always pleasant. Unfortunately, I will not be here next week so she will have a quieter week.
I am sure it will not be as the Senator's colleagues will be here.
I join with my colleagues in commending the Minister for being so open and willing to listen to our arguments and for taking on board anything she found reasonable and important to include on Report Stage. We had an interesting debate. I disagree with Senator Ryan because the Minister will not get as easy a run next week as she thinks she will.
My officials, Matt Benville and Pat O'Connor, will make contact with Senators to discuss the amendments.
Acting Chairman
I thank the Minister for her kind words.
Sitting suspended at 5.21 p.m. and resumed at 6 p.m.