This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil and this is looked upon as a report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For the convenience of Senators, I have arranged for copies of those amendments to be made available. As Members are aware, they may speak only once on this question. I welcome the Minister of State, Deputy Jacob, to the House.
Aviation Regulation Bill, 2000 [ Seanad Bill amended by the Dáil ] : Report and Final Stages.
I will not delay the proceedings unduly as we are in the closing stages of this legislation and I am sure Members who have already contributed a great deal to the debate on the Bill and put considerable time and effort into its deliberations will want to say a few final words on it in the time allowed.
My senior colleague, the Minister, Deputy O'Rourke, would have liked very much to be present to see through this legislation. It was perhaps one of the longest running Bills in recent memory. However, she had to attend an EU Council meeting, hence her absence. Nevertheless, despite the long gestation period, we are very glad to be in the final Stages of the Bill so that the very important work of the Aviation Commission can commence at last.
Before addressing the amendment which the Bill has undergone since being in the House, I pay tribute to the contributions of my colleagues in the other House, especially the members of the Select Committee on Public Enterprise and Transport, who put a great deal of time and thought into this process. As the Minister would say, we had some lively debates on the Bill since Senators saw it last. There may have been times on Second Stage in the other House when one would have been forgiven for thinking it would never be back in the Seanad again. However, I know the Minister was very appreciative of the useful contributions made on Committee Stage and we now have a stronger Bill as a result.
I will not absorb the time allotted in addressing technical or drafting amendments which have arisen, although I am happy to provide an explanation on any of these should any Members require it. I will concentrate instead on outlining those amendments which have added to or enlarged on the policies or procedures underpinning the legislation.
Amendment No. 2 was proposed on Committee Stage and, although it was always the case that any decisions of the commission would be non-discriminatory and transparent, the Minister was happy to accept the amendment and include it in the Bill.
The next significant amendment is amendment No. 12 which addresses the issue of interests in land or property by any member of the commission or anyone employed or engaged by it. It was accepted on Committee Stage. I am aware that there was some discussion in the Seanad on this item and that Senator Taylor-Quinn was anxious to see the measure included. I am sure she will be pleased to see its addition to the existing disclosure provisions in section 18.
On amendment No. 13, we have now added a six month custodial sentence to the existing fine in respect of the offence of the unauthorised disclosure of information. Senators may be aware that there was a request at Committee Stage that the penalties contained in the Air Navigation and Transport (Amendment) Act, 1998 – the Act vesting the airport assets in Aer Rianta and establishing it as a semi-State body as opposed to the agency status it previously enjoyed – be applied to this summary offence. However, the Minister took the view that these penalties provided for indictable offences allowing up to £100,000 in fines and two years imprisonment and it would not be appropriate that they be imposed for an offence such as the disclosure of information. It was pointed that the offences in the 1998 Act address far more serious issues, bringing dangerous articles into the airport, the non-payment of charges etc., than those envisaged in the Bill and the 1998 Act offences therefore merit the status of indictable offences.
It was also noted that, even in the 1998 Act, the offence of the unauthorised disclosure of information is only categorised as a summary offence and does not attract indictable penalties. We did, however, re-examine the issue in conjunction with the Attorney General's office. Given that there was a custodial sentence provided for in respect of this offence in earlier Acts establishing regulatory offices, we have now included a six month custodial sentence in addition to the fine.
Amendment No. 18 was accepted in response to concerns raised on the subject of transparency and accountability. We have, therefore, inserted this amendment in section 23 which deals with the raising of the levy. The amendment requires the commission to be diligent in its approach to its operating costs. We had already very clearly provided for all the necessary measures in terms of accountability in respect of the levy in that the commission is obliged in the first instance to produce regulations to introduce the levy and, secondly, it is only permitted to raise sufficient funds to finance its operating costs. However, we were happy to declare this in the more deliberate terms of the amendment.
On amendments Nos. 25 and 27, initially the Bill provided in section 32(2) that the commission had a timeframe of up to 12 months to produce a determination on the price cap and this was an appropriate measure at the stage it was included. However, further consideration was given to the implications for the industry if a price cap was not determined for a further year. Given the very long period since airport charges were last reviewed in 1987, and given that due to delays in the legislative process an interim commission has been in place since autumn 1999 which has engaged with the relevant issues, it has been decided that it would be more appropriate at this juncture to reduce the timeframe to six months.
Amendment No. 27 arises by virtue of amendment No. 25 and is designed to reflect the fact that the timeframe for the price cap determination is reduced to six months. We are therefore reducing from two months to one month the consultation period for industry views.
Amendment No. 34 was also accepted at Committee Stage and although the same concept was inserted into section 10 by virtue of the substantial debate on the issue in this House the Minister was agreeable to copperfasten it in section 33 also as part of the list of issues to which the commission must have due regard.
Before coming to the final amendment, I draw the attention of the House to the deletion from the Bill of a provision contained in section 46 which sought, by way of amendment to the Irish Aviation Authority Act, 1993, to remove the impediment in that Act which prevented the IAA from exercising its jurisdiction at military aerodromes. As Senators were aware, the provision was merely enabling in that it paved the way for the IAA to carry out its remit in respect of civil aviation operations at military aerodromes, should a Government decision be taken in the future to allow such civil aviation activity. Although the only issue under consideration, as it were, was the possibility of developing the facilities at Gormanston Aerodrome for use as a flying training school, deep concerns arose on the part of the residents living in the environs of Baldonnel Aerodrome. These concerns centred around the assumption that the Government was intending, without consultation or notice, to open up Baldonnel to civil aircraft. This was not the case and the Minister, Deputy O'Rourke, put this on the record of the Dáil. However, in order to allay the concerns of the residents' groups and given that the question of a flying training school can be addressed in due course, the Minister took the decision to remove section 46 from the Bill.
The last amendment I want to deal with is the best one yet, amendment No. 49, which inserts a new measure in the Bill dealing with an appeals mechanism. Having considered the many contributions made both here and in the Dáil on the subject of the merits of an appeal mechanism, the Minister decided to introduce a Report Stage amendment to provide for an appeal against a price cap determination. In summary, the process provided for is as follows. If Aer Rianta, or the IAA or an airline, is aggrieved by the decision of the commission in respect of the price cap, it may make a request to the Minister in respect of an appeal on that decision. On receipt of that request, the Minister must establish an independent appeal panel comprising three persons or a maximum of five. There is a two-month timeframe provided to the panel within which it must examine the decision of the commission in the context of the regulatory objectives laid down in sections 33 and 36. The panel is empowered to either confirm the decision of the commission or refer it back to the commission for review. There is a further time limit of one month placed on the commission to carry out that review. Following the review, the commission must publish the result in the same way as it would have done in respect of the original decision.
The provision affords a further opportunity, in addition to judicial review, for a person affected by the price cap decision to seek redress. I know that the issue of an appeal mechanism was one which Senators raised early in the debate on the Bill and was an issue on which some Senators felt strongly. I hope we have met those concerns with this new provision.
As I said at the outset, I am happy to explain these amendments, but Senators can see that the vast majority are technical drafting amendments, many consequential on each other or refinements of earlier drafts. I record once again, on behalf of the Minister and myself, our appreciation of the good work done by Senators and their colleagues in the Dáil. We are very anxious to finalise the processing of this Bill so the real work, as it were, can begin. I extend every good wish to the new commissioner, Mr. Bill Prasifka, and to his staff. I am sure it has not been easy to have to wait in the wings for so long. I have no doubt that the commission will find the task ahead both challenging and rewarding and I am hopeful that the new regulatory framework which has been created by virtue of this legislation will bring about a regime in which the needs of all the participants in the industry and of the travelling public are met and fulfilled.
Before I call Senator O'Dowd, I would like to welcome to the Chamber members of the Irish Ex-Service People's Association who have joined us in the Visitors Gallery. I hope they will have an interesting and enjoyable afternoon in Leinster House.
I welcome the Minister of State to the House. While there are many amendments to the Bill, the Minister of State has pointed out that most of them are technical and substitutions for the word "or", the deletion of the word "and" and so on. I spent three hours this morning going through the Bill parsing, analysing and marking out all the changes. From a housekeeping point of view, in this modern age where we have word processors and the ability to print drafts and redrafts, it should be a simple matter for us to get a copy of the Bill, as amended. That is not a criticism of anyone but, as a housekeeping exercise in all Departments, Bills to which there are amendments – there are 56 amendments to this Bill – should reprinted as amended. This would enable us to proceed with the business in ten minutes.
The time I spent going through the Bill was not wasted in that I went over all aspects of it. Having also read the Official Report, I appreciate that the Bill occupied a good deal of Members' time in both Houses. In particular, I commend the contribution of Senator Taylor-Quinn, which the Minister of State acknowledged. Many of her points have been taken on board.
I am aware the rules are that we should go through each amendment in turn. I approached this exercise by marking the additions on the Bill as passed by Dáil Éireann.
With regard to the Long Title of the Bill, the Minister provided for amending the Freedom of Information Act. That is to ensure that all the activities of the commission will be open, transparent and available for FOI requests. That is an important and welcome provision. I ask the Minister of State to acknowledge that is the position, that any decision made and or appealed can be referred to through the FOI process.
I welcome, in particular, the changes the Minister of State spoke about. If Members will bear with me, it is not good teaching practice not to have the necessary words at one's fingertips. A major point has been included under section 18(2). It states that for the purposes of this section, but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if he or she or any member of his or her household, or any nominee of his or her's, has an interest in a property or anything that is material to the decisions of the commission. The subsection also covers the position where he or she or any member of his or her household is in the process of acquiring land or property to which such a matter relates. That is one of the points Senator Quinn made. That is an important and welcome addition to the Bill. It is part of the openness and transparency that is provided for in this legislation and that, hopefully, will apply to all future legislation.
I agree with the Minister of State on section 19(2). It states that a person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500. The words "or to imprisonment for a term not exceeding 6 months, or to both" have been added to the subsection, which make it stronger. The debate on the Bill in this House was important in that it constructively influenced and changed the legislation.
Section 23(7) states that the commission shall ensure its own costs of operations are kept to a minimum and are not excessive. I am not sure how that provision will operate and initially I wondered if it made sense. Good and prudent management of a commission or any public body would require that, but given that provision is mandatory in that it is included in the Bill, how will it be put into effect? Will it conjure up auditors' questions as to why the chairs purchased were more luxurious than they ought to have been, that the office should have been painted once every four years rather than every two years, or whatever? In terms of prudent, modern management, what is provided for in that paragraph should happen anyway, but given that it is included in the Bill, what, if any, will be its implications?
Many of the amendments provide for the substitution of words. Section 33, which deals with regulatory objectives in respect of airport changes, provides that in making a determination the commission shall aim to facilitate the development and operation of cost effective airports which meet the requirements of users and shall have due regard to a number of points, to which has been added the contribution of the airport to the region in which it is located. That is a welcome addition which acknowledges that airports do not have only a local or county impact but also an important regional one.
The Minister of State added a new section 40 which deals with the appeal panel. It is an important addition which provides that an aggrieved party can avail of an appeals process rather than having to go directly to the courts, although that is an option a party can exercise if he or she so wishes. This is a beneficial and constructive addition to the Bill.
I hope the Minister of State will be able to answer a few questions regarding the appeals process. If one has gone to the commission and is aggrieved at its decision, one can appeal it to a ministerial body made up of at least three but not more than five people who will re-examine one's case. I acknowledge that any decisions and submissions made to that body will be transparent and open to FOI requests. Who will be the members of that panel? What skills does the Minister of State consider they ought to have? Why did he opt for a panel of at least three and not more than five persons? Does he envisage different appeal panels will be set up for different situations, or will the five people or whatever number he decides be on the panel for the dur ation? Will a different panel be set up specifically for each appeal?
Will the Minister of State consider giving representatives of users of the airports, be they airlines or other users, the right to nominate people to the appeal panel, given that a similar provision is included in employment legislation? It would be helpful if he were to reply to that request in the affirmative. Obviously a potential nominee could not be a member of a company directly involved in a particular appeal. If the Minister of State decided to nominate five persons to the panel, perhaps the representatives of the users of the airports could nominate two members. Such a provision is included in the employment appeals process, although I appreciate it is a different situation where an employer and an employee are represented and there is a neutral chairman. I do not suggest that must the case but there should be recognition of the importance of the employees' point of view. Ryanair's chief executive appeared on the "Late Late Show" recently and it is clear how aggrieved he was by decisions at airports out of which his company operates. He has a deep and strong conviction in this regard and, whether or not we agree with him, he is making a strong case.
I hope airport users are involved in this process. I welcome the changes to the Bill.
Mr. Ryan
Cuirim fáilte roimh an Aire. Bhí, mar a duirt se, an-phlé againn leis an mBille seo nuair a tháinig sé chun an tSeanaid don chéad uair agus caithfidh mé a rá ar dtús báire go gceapaim go bhfuil na rialacha faoina phléimid ceist cosúil le seo, nuair atá 57, 's é mo thuairim, leasuithe á gcur ós ár gcomhair, go bhfuil an t-ord atá againn – go gcaithfimid iad a phlé mar cheist amháin – go bhfuil sé as dáta ar fad agus go bhfuil sé in am dúinn réiteach eile a chur le chéile tríd an gCoiste Procedures agus Privileges. Ní dóigh liom b'fhéidir go bhfuil Gaeilge an tSeanadóra MacGearailt agam. Ach tá sé in am dúinn an cheist a phlé mar tá an saol athraithe.
The introduction of Bills in the Seanad was a rare event in the past and, therefore, they were rarely returned to the House with significant amendment. It a simple procedure but 57 amendments on a variety of topics deserve a better procedure than this. Nobody wishes to take up time and, as the Minister of State said, many of the amendments are technical but a couple of points should be made.
I would like to know more about the context in which a basic public policy decision was reversed. The intention in the original legislation was to enable the Government to permit Baldonnel aerodrome to be used for civilian purposes. That was a major public policy decision. The Bill contained a provision to enable the Government to do so but it has been deleted. I did not hear a chorus of objection to the provision.
Electoral boundaries have changed and Baldonnel is in the Tánaiste's constituency. She is a great advocate of competition and the right of people to choose. I do not recall a large chorus of dissent in this House about this Bill because it was only enabling legislation which had to go through a political process. However, suddenly one section, the merits of which could not be debated because it simply provided that Baldonnel could be used for civilian purposes if a Government wished it, was deleted.
Governments are subject to public opinion but it is nice to go back to one's cantankerous constituents and say one was responsible for the removal of that section and received a categorical assurance that the people of north Dublin are the only ones who will have civilian aircraft imposed upon them in greater numbers. It will look well on election literature during the next campaign. Who represents that area?
I undertake to pursue this issue following the passage of the legislation. I will write to the Minister of State's Department under the Freedom of Information Act seeking correspondence in connection with the deletion of section 46 because I would like to know who made representations and the process under which this decision was made. Whatever its merits. it is interesting that something that was peripheral to enabling legislation has been deleted.
I am not sure about the notion of locking people up for disclosing unauthorised information. I wonder about our sense of our own importance, particularly in the public sector, whereby an amendment is made which provides for the possibility of six months in jail for unauthorised disclosure of information. This leads us into a world of wonderful contradictions because the classic old phrase, "confidential information means that which is expressed by the commission to be confidential", which was inserted in every Act for a long time, has been inserted in section 19. That is straight out of Alice in Wonderland. As the Queen of Hearts said, “Words mean what I say they mean.” If the commission says that the colour of the toilet paper in the bathroom is confidential, then it can make it confidential.
That is one side of the argument but an amendment to the Freedom of Information Act introduced later in the legislation provides that the commission cannot do so because the definition of "confidentiality" cannot be used to frustrate the intent of that Act. That is welcome but it is time that instead of inserting contradictory phrases in legislation, the parliamentary counsel recognised we are operating in the world of freedom of information. Legislation should be drafted differently so that information that is not covered by the provisions of the Freedom of Information Act shall be deemed to be confidential. Any other phraseology is meaningless and contradictory, as evidenced by the provision of a penalty of six months in jail for disclosing information which might be covered by the Freedom of Information Act.
Responses to FOI requests must be made within three weeks to discover such information. My experience is that Government Departments are expeditious and efficient at doing so and the three week limit is observed conscientiously. If one seeks an internal review it is carried out efficiently and quickly and in a transparent manner.
However, we are presented with legislation such as this which contains contradictory phrases that turn the entire process upside down and a provision for six months imprisonment for revealing information which might turn out to be legal under the FOI Act is added. This is a message for those in the Office of the Parliamentary Counsel who are still drafting legislation in a form that predates the FOI Act, one of Labour Party's great legacies to public discourse. I was not a member of the party at the time and therefore I can say that without any strings attached.
I am glad there will be an appeals panel but I am still a little wary of the criteria under which charges are to be made. I am not sure yet that regional airports will be properly supported. It is an absolute nonsense to maintain that an airport should only be built where there is a commercial demand. The construction of an airport creates demand and industrial development. It is similar to saying roads should only be built where there is already traffic. We should examine ways to use the road infrastructure to change the patterns of development and that is similarly true of air traffic and all other infrastructure. Infrastructure is not only a service to existing development but is an attempt to change it.
I am glad there is an attempt to put together an independent appeals system and that the Bill is finally about to be passed. Let us be wary about fashion. There is a great fashion for commissions to regulate things nowadays. That fashion will change as sure as night follows day. The Californians have discovered that deregulation and commissions produce their own negative consequences. The idea that what would be the sixth richest state in the world could have permanent threats of blackouts or else exorbitant prices for electricity is a lesson to us all to be wary of fashion and of rigid ideology.
I would first like to address the points raised by Senator O'Dowd. The Senator suggested that the original Bill with the amendments contained therein might be presented to facilitate preparation for the debate. I certainly consider that suggestion meritorious and I will ask my officials to take note so that it can be considered.
The Senator also lauded my good friend, Senator Taylor-Quinn. I referred to her excellent work and I totally concur with those remarks. Senator O'Dowd asked whether the activities of the commission would be amenable to the Freedom of Information Act, 1997. I can confirm that it will be so.
Senators O'Dowd and Ryan welcomed the appeals mechanism in the legislation. The members of the panel will be appointed by the Minister for Public Enterprise. There will be a separate one for each appeal. Consideration will be given in due course to the nature of the expertise needed. Aviation and economic expertise would be obvious requirements. It will be important to avoid conflicts of interest in choosing the members of the panel.
Senator O'Dowd referred to amendment No. 18. This amendment to section 23 was accepted in response to concerns raised over transparency and accountability. This is the section dealing with the raising of the levy. The amendment requires the commission to be prudent in its approach to its operating costs.
Accountability measures in respect of the levy have been provided for. The commission is obliged in the first instance to produce regulations in order to introduce the levy. It is only permitted to raise sufficient funds to finance its operating costs. We are happy to specifically adopt the wording of that amendment. It puts expressly into the Bill the onus that all expenditure be subject to due and proper consideration.
Senator Ryan then raised the matter of Baldonnel which I referred to earlier. With regard to who represents the area, I have always had difficulty with Dublin constituencies. I cannot help the Senator to find out but I am sure he will find some way of eliciting the information. The Minister took the view, given the concerns raised regarding Baldonnel, that the issue contained in section 46 could be addressed at a later date. Hence the removal of that measure.
I once again thank Members on behalf of the Minister for Public Enterprise, Deputy O'Rourke, who has had a very particular personal interest in this legislation. She has had a lot of interaction with the Senators in this House and with colleagues in the Dáil during its lengthy preparation. On her behalf I thank Senators for their valuable input and on my own behalf I thank them for their co-operation and forbearance today.