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Seanad Éireann debate -
Tuesday, 28 Mar 2006

Vol. 183 No. 4

Aviation Bill 2005 [Seanad Bill amended by the Dáil]: Report and Final Stages.

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 may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. A Senator may contribute once on each group. I remind Senators that only the amendments made by the Dáil may be discussed. In the first group, the definition of the Eurocontrol Convention is the subject matter of amendments Nos. 1 and 8.

Question proposed: "That the Bill be received for final consideration."

Amendment No. 1 is grouped with amendment No. 8. This amendment is necessary to clarify the protocol on the accession of the European Community to the European Convention. It is not an amendment to the European Convention.

Amendment No. 8 was proposed in the Dáil by Deputy Shortall and accepted by me as it is considered prudent to include the text of the EU protocol as a Schedule to the Bill. Ireland will be required to provide separate instruments of ratification for the revised convention and the EU accession protocol.

I welcome the Minister of State to the House and hope that we can give a speedy passage to the final phase of this Bill. Broadly speaking, Fine Gael has supported this Bill and its passage through the Dáil and this House. Nonetheless, there was and is room for improvement in this, as in most Bills. When it was going through this House I highlighted specific areas where it fell short of what it could and should achieve, as did my colleague, Deputy Olivia Mitchell, in the other House.

Both Fine Gael and the Labour Party have expressed reservations about some of the powers conferred by the Bill on Eurocontrol, notwithstanding the valuable and crucial work the organisation undertakes on behalf of the other 34 countries involved. Unfortunately, these concerns, as expressed to us by the industry and by the Irish companies in Ireland, fell on deaf ears and the Minister of State did not accept the amendments I tabled.

This Bill will pass with a fundamental flaw, despite the important things it will enact. I wish to highlight again five issues which I raised on Second and Committee Stages. One is that it will discourage Eurocontrol from expeditiously collecting moneys owing to it. It will create an easy target for Eurocontrol to pursue for debts accrued and remove the obligation on Eurocontrol to pursue the entity that incurred the charges. It will impose disproportionate burdens on aircraft owners and leasers and identify the wrong party as the legal wrongdoer in situations where Eurocontrol fees have not been paid.

The Senator should speak to the contents of amendments Nos. 1 and 8.

I am almost finished and my only other comments are on the third group of amendments which are intertwined with this group so I could finish on this point.

I spoke on this issue on Second and Committee Stages.

The Senator should speak to the grouping, as he knows himself.

Very well. I have no objections to amendments Nos. 1 and 8.

The Senator was referring to the detention and sale which is not part of the amendments. With respect to him, I know he and his colleagues were concerned about that issue. With the Cathaoirleach's permission, and I hope I am not speaking out of order, I wish to reassure him that I have introduced nothing new into this Bill. Several leasing companies have voiced their concerns on this point. We took advice from the Irish Aviation Authority, Eurocontrol and the Dublin Airport Authority, all of which said we should maintain the status quo since 1998. There is nothing new here.

The second group comprises drafting and technical amendments Nos. 2, 3 and 6.

Amendments Nos. 2 and 3 refer to typographical errors which were identified in the Dáil. Amendment No. 6 is a technical amendment relating to a matter also highlighted in the Dáil.

I have no objection to those amendments.

In the third group the amendment of the Aer Lingus Act 2004, and the Aviation Regulation Act 2001, is the subject matter of amendments Nos. 4, 5, 7 and 9.

Amendment No. 4 is a technical amendment intended to avoid doubt. It stems from an administrative oversight concerning the commencement of certain sections of the Aer Lingus Act 2004, which provides, among other things, for the establishment of the employee share ownership schemes. Based on the authority provided for in the Act, shares representing 9.9% of the issued share capital of Aer Lingus were transferred to the employees' share ownership trust on 20 August 2004. The establishment of the scheme formed part of the agreement with trade unions on radical transformation measures provided for in the company's survival plan in the aftermath of the terrorist attacks in the United States on 9 September 2001, and the ensuing crisis in the aviation industry.

These share transfers took place in the context of an agreement between the Ministers for Transport and for Finance, the company, the trustee for the employees' share ownership programme and the trade unions. It came to light only a year later that the relevant provisions of the Aer Lingus Act 2004 had not been commenced before the transfer of the shares took place.

The Minister signed the commencement of provisions order 2005 on 28 September 2005, which provided for the coming into operation of section 7 of the Aer Lingus Act 2004, and section 2 of the Act concerning the repeal of section 5(2) of the Air Companies (Amendment) Act 1993, which proposed a cap of 5% on the proportion of company shares which could be held by employee share ownership schemes. In practical terms nothing has changed but for the fact that we were advised that it would be important to have this embodied in primary legislation. That is what we are doing now. No one is losing anything as a result of this. The amendment provides for the relevant parts of the Aer Lingus Act 2004 to be deemed to be commenced on 19 August 2004, the day prior to the transfer of the shares.

Amendment No. 5 designates the Commission for Aviation Regulation, CAR, as the body to enforce the denied boarding regulation. CAR's role is to enforce the EU regulation and to receive complaints from passengers in cases where an airline fails to meet its obligations under the regulation.

The Commission for Aviation Regulation was already designated as the denied boarding enforcement body under the European Communities compensation and assistance of air passengers denied boarding, cancellation or long delay of flights regulation, SI 274 of 2005, made by the Minister for Transport, Deputy Cullen, on 31 May 2005. After making the statutory instrument, which was done in consultation with CAR and the Office of the Attorney General, it emerged there may be some doubt as to whether CAR's levy, which is provided for in the aviation regulation 2001, could provide for any expenses incurred by CAR in enforcing the denied boarding regulations. The Department, CAR and the Office of the Attorney General concluded that formally restating now in the Act which sets up CAR that the commission is formally responsible for the enforcement of the denied boarding regulations will clarify beyond all doubt that CAR's levy, provided for under the 2001 Act, can include any expenses incurred by CAR in carrying out that enforcement.

Since the statutory instrument was made under the European Communities Act, it only allowed for summary offences and associated penalties for infringements. CAR and the Department have now reached the view that this opportunity should be taken to recast the commission's enforcement role in primary legislation by amending the Aviation Regulation Act of 2001 which will allow the commission to pursue prosecutions on indictment in the event of serious breaches of the legislation. This amendment simply inserts a new section into the Aviation Regulation Act of 2001 to provide for a sanctions regime for CAR so that it can enforce the denied boarding regulation. The CAR can therefore issue directions directly to airlines if they are not complying with the denied boarding regulations, instructing them to comply. Non-compliance is then deemed an offence which can be pursued as either a summary or an indictable offence. CAR can take summary prosecutions while it will be a matter for the DPP to pursue indictable offences if CAR refers serious cases to the DPP.

Also included are technical amendments made in the Dáil to sections 13 and 40 of the Aviation Act 2001. The amendment to section 40 of the Act will extend the maximum time available on an appeals panel established by the Minister under that section from two months to three months. It also extends from one month to two months the time given to the CAR to consider any matter referred back to it from the appeals panel. There is a related amendment to section 13 of the Aviation Regulation 2001 Act. Currently, section 13 allows for the appointment of a member of the staff of CAR as deputy commissioner to carry out the functions of the commission when the membership of the commission is vacant, including any referral that may be made to CAR by the appeals panel. While the explanation is quite long, this is short and technical and we are advised it is necessary to take the opportunity to introduce these amendments at this stage.

I thank the Minister of State and welcome this section. With regard to amendment No. 4, can the Minister of State say if it is retrospective legislation? Does this make everything retrospective back to 2004? On amendments Nos. 7 and 9, does the power to detain or stop people from boarding also extend to the other 34 countries? Have other countries and airlines the same powers as we are putting in place by means of this legislation, or will they be taking initiatives to put such powers in place?

Yesterday, the Minister for Transport said Aer Lingus could be privatised by means of a public flotation later on in the year. I hoped this evening would provide an ideal opportunity for the Minister of State to comment here, rather than outside the House, as to how he views progress on the privatisation of Aer Lingus or the additional funds going towards it.

I doubt if that is relevant.

It is relevant. Senator Burke raised the question of retrospection. Even if we had not amended the legislation, things would not change for those who will own the shares in the trust. When we took advice from the Attorney General and the officials in my Department, it was felt this should be written into primary legislation. It provides for the relevant parts of the Aer Lingus Act 2004 to be deemed to have commenced on 19 August of that year, the day before the transfer of the shares to the trust. It will confirm that all those who expect to receive shares in Aer Lingus under the scheme will have their expectations fulfilled in accordance with the agreement reached between the Ministers of Transport and of Finance, along with Aer Lingus and the trade unions. It was the officials in my Department who rightly raised this issue, and we can now convince those who might have had any fears that they should not have any.

There will be another opportunity to discuss Aer Lingus and I do not want to transgress as the Cathaoirleach is not giving me the right to address the issue.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I thank the Minister of State for taking the Bill through the House although I have reservations about one aspect of it. I made my point well on Second and Committee Stages in this House. I thank Mr. Seán Hehir from the AIG group in Dublin whose company put a lot of work, worldwide and especially in America, into the financing and leasing of aircraft and insuring aircraft throughout the world. AIG was a little worried about that aspect of the Bill and I thank the company for highlighting the issue and bringing it to the attention of the Opposition and the Government.

I thank the Minister of State and wish him well with the Bill. I also thank his officials for coming to the House.

I welcome the Minister of State to the House. This is the first opportunity I have had to publicly wish him well in his new role as Minister of State at the Department of Transport. I know he will carry out his duties as efficiently as he did in the other Departments in which he served. I thank my colleague, Senator Paddy Burke, for facilitating the speedy passage of these amendments through the House this evening. We are aware the Minister of State is under pressure to get to another engagement. As Senator Paddy Burke said, this Bill was well debated last October in this House and there were many fine contributions as well as suggestions for change. I wish the Bill well.

I thank the House for taking the Bill this evening and for accepting the amendments. I am particularly grateful to Senators for their support and understanding, and for accepting the amendments put forward concerning the employee share ownership scheme for Aer Lingus, and the appeals process regarding decisions of the Commission for Aviation Regulation. As some Members of the Opposition noted, nobody is waiting with bated breath for the enactment of the Bill when it is signed by the President, but it is important legislation. It will allow us to ratify the revised Eurocontrol Convention which, in turn, will provide for the necessary institutional reforms required to achieve a uniform European air traffic management system for the control of general air traffic in European airspace at and around airports.

Gabhaim mo bhuíochas leis na Seanadóirí as ucht an deis a thabhairt domh an reachtaíocht thábhachtach seo a bhaineann leis an Roinn Iompair a chur tríd an Seanad.

Question put and agreed to.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.