Harbours (Amendment) Bill 2008: Committee Stage.

Sections 1 and 2 agreed to.
SECTION 3.

I move amendment No. 1:

In page 5, between lines 29 and 30, to insert the following:

"(iv) county and city development plans and relevant local area plans.".

This sensible amendment calls on the Minister to have regard to county and city development plans and relevant local area plans when he or she is deciding whether to make an order under this section of the Bill. Widespread consultation takes place when development plans and local area plans are being drawn up. It is important that the Minister would have regard to such plans. I ask the Minister of State to accept this amendment.

The principles and policies to which the Minister shall have regard are listed in the Bill. When the Minister is making his or her decision, he or she may consider applications for planning which have been submitted, planning permissions which have been granted under the Planning and Development Acts and environmental impact assessments which have been carried out. Any such applications, permissions or assessments would have regard to the relevant county and city development plan. I do not think it is necessary to include the reference suggested by Senator Cummins. If planning permission has been granted in an area, the relevant plan will already have been consulted as part of that framework. I do not think it is necessary to accept the amendment.

I beg to differ. The Minister of State mentioned environmental impact assessments and planning permissions, but my amendment calls on the relevant Minister to have specific regard to county and city development plans and local area plans. If such a reference is not included in the Bill, there will be no obligation on the Minister to consider the plans, which have been drawn up on foot of consultation with local representatives and local people, when he or she is making a decision under this section. I do not agree with the Minister of State's assertion that there is no need for this amendment to be made. The reference I have proposed should be included in the Bill.

There is some merit in what my colleague on the other side of the House has said. I am interested in the extent to which the remit of the new coastal zone management authority will apply to bays and harbours. Kenmare Bay is one of the special areas of conservation around our coast. I understand that it is proposed to zone much of Bantry Bay in such a manner, which would limit the scope for development in the area. I am concerned that the exclusion of any reference to local area plans, county development plans and regional plans would be dangerous, as Senator Cummins has said. The Minister of State might argue that this legislation has to take account of the various plans and coastal zone management strategies. While I am subject to his decision on this matter, I remind him that it could have serious repercussions.

My own local bay, Bantry Bay, is the subject of amendments later in this debate. It is an unusual bay. It has been described as the second finest bay in the world. The biggest oil tankers that were ever built were able to navigate within Bantry Bay as they travelled towards the terminal at Whiddy Island. When super tankers move through Bantry Bay's fine shipping lane, there is more than 85 feet of water below them. That shows how safe a channel it is. Before the French invasion of 1796, the entire British fleet was able to seek shelter and anchor in Bantry Bay. That gives one an idea of the expanse of the bay.

When we think about a port, we think about the pier and landing areas in the inner harbour. That is important in the context of this section, about which my colleague, Senator Cummins, is kind enough to let me talk. There is an intrinsic variety of issues in this regard. It is important, from a social perspective, that the people of Whiddy Island are able to get to and from the island. That is important on every island. The former Gulf Oil terminal on the island, which is now owned by ConocoPhillips, is a commercial shipping area that is used regularly. It creates employment and revenue for what is now and is hoped will be the Bantry Harbour Board authority. Going further along the line we have the beautiful Garnish Island, close to Glengarriff, which is one of the greatest gems among our tourist attractions and attracts nearly 200,000 visitors per year. Occasionally an ocean liner comes into Bantry, although not as often as I would like, to let its passengers off to enjoy the beauty of west Cork, Kerry and further. This is in the scope of this amendment as we discuss coastal zone management and local area plans.

Bantry Bay has a big mariculture industry and I would argue it is the capital of mariculture in Ireland. We have four or five seafood factories that have won awards. Bantry Bay Seafoods exports all over the world, we have Shellfish de la Mer in Castletownbere, Fastnet Irish Seafood and a thriving rope mussel industry throughout the bay. Licensing of the mussel lines is a serious issue. Licensing areas of sea for setting out the lines is the same as licensing areas of land. We have had discussions on how mussel line and salmon net farmers must have cognisance of shipping and sailing lanes and respect other people's rights, but the bay is large so that can be achieved. This is relevant here. At last week's meeting of the Joint Committee on Agriculture, Fisheries and Food I spoke on the 70 month delay for the application for an aquaculture licence. This applies not just to Bantry Bay but to Roaring Water Bay, Kenmare Bay, Killala or in Donegal the Foyle or the Swilly, or anywhere. Along with many of my colleagues, Deputies and Senators, I asked why there is such a delay.

Going beyond the remit of Senator Cummins's amendment, the question is how it will affect aquaculture. We have problems with a contracting economy. Unfortunately, we are losing jobs. Back in 1985, when I was a councillor and much younger, we had a proposal that we would reach a mussel production target of 30,000 tonnes. We have reached only 10,000 tonnes. We have stagnated. In the same year Chile produced no mussels and did not know what mussels were about. Now Chile produces 300,000 tonnes. The Chilean aquaculture industry is centred around Puerto Montt, which is approximately 300 miles south of Santiago and has its own airport. Chile saw the light in the last 20 years and now employs 40,000 people in aquaculture.

We are failing to expand our aquaculture industry. There is great potential. People are harvesting the mussels and using the sea beds. The potential is broader than mussels and includes salmon and scallops. The Minister may not be aware that the biggest abalone factory in the northern hemisphere — which includes not just Ireland or the UK but North America, Canada, the Russian Federation and all of Asia — is on the shores of Bantry Bay, out near Cahermore, Lehanmore and the peninsula. Abalone is a wonderful seafood product. The Chinese and Indians love it and Europeans are getting fond of it. I visited the factory and it is a wonderful achievement. With respect, Government agencies such as BIM are fully on board on this issue.

Senator O'Donovan is going outside the scope of the amendment.

We are discussing licensing and I beg the Leas-Chathaoirleach's indulgence to wade with me a little further into deeper waters because the issue all comes back to licensing. I should have adverted to the introduction by my colleague, Senator Cummins. I grew up with this and have seen the difficulty of licensing and coastal zone management. If we want to discuss the wider area of planning permissions in rural Ireland, of which my colleague Senator McCarthy will be well aware, coastal zone management affects not just the sea and how we develop it, but the land too. A planning application was once refused because the development would be seen from Garnish Island. There are major issues here.

To go beyond that there is the question of where we go in the future. There is an aquaculture and mariculture licensing authority but there are so many layers that I am worried that unintentionally we might have a problem with the development and expansion of mariculture, not alone in Bantry Bay but throughout the area, wherever licensing is required. I am very concerned that without the appropriate amendment proposed by Senator Cummins, we might lose the run of ourselves and have unintentional consequences in future. I might ask the Minister to elaborate on this later. I have serious worries about that. I must apologise for being, as we say in West Cork, beagánín leadránach, but I have a great interest in this area. There is some merit in what my good friend and colleague Senator Cummins has proposed.

We are discussing ports and port companies, not smaller harbours around the country such as Bantry Bay. This section amends the power of a Minister to alter the limits of a company's harbour. It sets out the principles and policies to which the Minister should adhere when extending the harbour limits. Previously this was done by ministerial order and there have been a few court cases about this sort of issue, not specifically referring to harbour limits or ports but to the sort of judgments given under the Cityview Press action and the McCreevy court rulings. It is decided that this is being put into legislation and the principles by which the Minister should consider a request are being amplified here. The guiding principles that are being put in for the first time would outline what has to be considered. If Senator Cummins likes, I will consider his amendment further before the next Stage but I do not think it is necessary to accept it and I cannot make any commitment. We are putting many principles and guidelines in place for the Minister to consider this in the future. However we are discussing port areas, not the smaller places. I do not know whether the amendment does any harm but I do not know if it is necessary.

I am pleased the Minister will examine it and that is all I will ask him to do. Perhaps it could be resubmitted on Report Stage. It is necessary. If the Minister does not have regard to these plans, it will be a negation of local democracy. I am glad the Minister has agreed to examine it although I realise he has not given any commitment. We will raise it again on Report Stage.

May I comment on the Minister's graciousness in saying he will consider it? He has failed to address the issues raised regarding the Chilean mussel industry.

I am glad to hear what the Minister has said, but I am also confused. This is what I have been talking about. I could expand on what Senator Cummins has said. I will not discuss Chile, but I could discuss France and Spain which have done equally well and have generated a lot of employment in the mussel sector. I could quote facts and figures all day.

Senator Cummins spoke about the parameters and limits of ports. There is an unintended consequence here which is connected to section 18, which I will not go into right now. It has been suggested that Cork Port should take over Bantry. In that context, people want to know the extent of such a takeover. As it stands, Bantry Harbour board covers approximately 95% of Bantry Bay. The small area that is excluded is in the inner harbour of Bere Island which has a separate authority. If one were just discussing the inner harbour, one could argue that it concerns a railway pier, the existing pier and the very valuable foreshore which was once owned by Bantry House and was bought out by the harbour board. It might also concern parts of Whiddy Island. However, we are not clear whether it concerns, for example, the 20 trawlers which come trawling down the bay when the herring or sprat is in, or in pursuit of the very valuable prawns. The mussel industry has moved to a place called Gort na Cille where I was born and raised. Would that area be affected?

Bantry Bay extends inland for 23 miles and has an average width of eight miles, which is a phenomenal size. At the centre, its channel is 60 fathoms deep, a fathom being 6 ft. or approximately 2 m. Where are the controls over that area? It has been suggested that the rules would apply only to the inner harbour with a limit of Rabbit Island on one side and the bank between Whiddy Island and the mainland on the other side. I am quite certain, however, that the rules will not just apply to that area. The issue is much broader than it first appears, which is why I am glad the Minister of State has agreed to revisit it.

I do not wish to be in anyway derogatory towards the Minister of State who has a grá for west Cork. However, somebody in an office somewhere has decided that it would be a nice thing to organise a shotgun wedding between Bantry and Cork Port without thinking of the possible consequences. This relates to the issue of planning, to which Senator Cummins referred. Area plans and coastal zone management plans are important issues. There was an office in Bantry that was dedicated to dealing with the coastal zone management of the peninsulas, including Sheep's Head, Mizen Head, Bantry Bay, Bere Island and so forth, although I am not sure it is still operational.

There are proposals here which might have unintended consequences. We all have seen the unintended consequences in recent days of a very simple proposal that was made a week ago. Had the Cabinet members and others involved seen the future, the matter would have been dealt with very differently. I am concerned that we could have a fiasco on our hands with regard to Bantry Bay. I do not wish to be overly parochial as I am aware there are other areas of the country that might be affected, and indeed Fenit has already been mentioned in that regard.

I am glad the Minister of State has agreed to re-examine this issue, although he has not made any firm promises. I am seeking clarity and an assurance that the issues I have raised, including fish farming, salmon cages off Gearhies, the mussel industry, the abalone industry, scallop and clam farming are taken into account. We must not kill the goose that laid the golden egg. This Bill raises issues of enormous concern, not just the question of the shotgun wedding that is being proposed. I am concerned that someone will ask me in the future if I was asleep when this Bill was going through the Seanad and how come I did not realise the consequences of the proposals. I am not saying the proposals are malignant in their content, but I am not convinced they are benign either.

I have already said we will look at the matter again although having read my notes in more detail, I may have been rash in saying that. However, I have said it so I will stick by my promise.

This is about providing for the principles and policies that a Minister shall have regard to when making an order to extend a company's harbour limits. I have a feeling that the amendment which Senator Cummins addressed and the matters raised by Senator O'Donovan are not related. The amendment tabled by Senator Paschal Donohoe probably relates to Dublin Bay, Drogheda Harbour or the Bremore harbour area, whereas Senator O'Donovan is talking about a different issue entirely.

Section 3 outlines that the Minister, in deciding whether to make an order under this section, shall have regard to various issues. This legislation is much more advanced than that currently in place. It specifically details the principles and policies to which the Minister must commit. Section 9(3)(c)(i) as inserted by section 3 refers to: “leases made under section 2, licences granted under section 3, approvals under section 10 or consents given under section 13 of the Foreshore Act 1933”. This deals with much of what Senator O’Donovan raised, including mariculture and so forth. Coastal zone management and foreshore licences are matters for the Department of Agriculture, Fisheries and Food, although it has been suggested that some responsibility for coastal zone management will be transferred to the Department of the Environment, Heritage and Local Government. The aforementioned paragraph provides for taking into account foreshore licences or consents granted under those licences. Much of that which concerns Senator O’Donovan is covered specifically in the new section 9(3)(c)(i) as inserted by the Bill.

The original amendment may have been set in an entirely different context, that of Dublin-Drogheda or perhaps Waterford. While I do not think the amendment is strictly necessary, I will look at the matter again before Report Stage. I stress again that Senator O'Donovan's concerns are adequately dealt with by the Bill.

While I do not doubt the Minister of State's sincerity when he says the issue of licensing is amply covered in the Bill, I have grave doubts whether that is the case. While I do not want to be parochial in talking about Bantry Bay, Dunmanus Bay, the Sheep's Head, Bere Island and other areas I represent, my concerns stem from the fact that a week ago in this House, Senators expressed their concerns that there is a 17-month delay in issuing aquaculture licences for whatever location, be it Bantry, Lough Swilly or wherever. If there is currently a 17-month delay, what will happen when this Bill is enacted? While I recognise the issues come under the remit of different Departments with some degree of overlap, I am not convinced the provisions in this Bill will allay my fears regarding the area I represent.

The sea fishing industry as we have known it is contracting and there are less fish in the sea. However, there are enormous possibilities for development of aquaculture and mariculture. I would be failing the people I represent, not only this generation but future generations, if we are stymied because of over-zoning, over-managment or plans like the SACs which are sometimes done without thought. We had a rumble in Cromane where they can no longer harvest mussels. It is another matter, but it is the same principle. That is why I am worried and concerned, and I ask the Minister of State to take these concerns on board, because the people in Cromane in Kerry can no longer harvest mussels — we do it with suspended ropes and they have a ground harvesting system — and the industry has been stifled. A small industry in a small part of Kerry has been destroyed. I do not doubt the authenticity of the Minister of State, but I have grave concerns about moving forward with the development of areas such as aquaculture and mariculture.

I will be blunt. I am being asked to accept that a port company in Cork — a commercial company with a different remit and agenda — will take over Bantry Bay and Harbour entirely. If that is the case, the issues Senator Cummins has raised concerning licences, coastal area management, coastal zone management and county council plans and developments are relevant. We have a wonderful asset. Bantry Bay is the second finest bay in the world. It is one of the finest in Europe. We are giving control of this asset to someone else.

Let us take another angle, that of zoning, planning and over-regulation. People in the mussel industry are depending on tides and so on at certain times of the year. They pick spat, which are the mussel seeds from the rocks. These are collected by small farmers who make a few bob doing this. Traditionally the spat, in my grandfather's time, was used for fertilising land, in the same manner as seaweed. We have a new proposal which believes this was something historic. The spat was a foundation stone and the seed that acts as a catalyst for the mussel industry. They are put into stocking which are suspended out at sea, and because we have a very rich bay with wonderful vitamins in the water, they can grow and expand, and eventually they are harvested and sold. We have created an industry out of it.

I am passionate about this because this never happened in Bantry Bay when I was a young fellow. We had Whiddy Oil, which was thriving, and Gulf Oil which created many jobs in the area. The biggest single disaster was the Betelgeuse disaster at Whiddy terminal on the 8th January 1979 when 50 people lost their lives. I knew many of the people who died on that occasion. Arsing from that, we formed an action committee and the locals asked if they could do something. They set up a mussel industry, which now comprises of two factories in the bay and employees 300 to 400 people, directly or indirectly. I am concerned that some of this legislation may adversely affect what we have created. I do not want people to say to me in five years time, “We sent Senator O’Donovan from west Cork; he was blind and did not avert what was happening here”.

I understand what the Minister of State is saying, but it was confirmed at a committee last week — I am not a member of the Joint Committee on Agriculture, Fisheries and Food, but I attended the meeting — that it now takes 17 months to process an aquaculture licence. I do not know why it takes so long. There must be some reason. Are they being delayed until such time as Bantry Harbour Board and Bantry Bay are taken over by another company or organisation, after which the fishing industry will be forgotten? As a representative of coastal communities I cannot allow that to happen.

I am sorry for digressing but this is a very serious issue. There are unintended, if genuine, consequences of what is being planned. Senator Cummins has made some valid points. I am worried that there will be unforeseen consequences if this legislation is passed. There are many wheels within wheels. We are up against Cork County Council, the Department of the Environment, Heritage and Local Government and the Department of Agriculture, Fisheries and Food. This Bill is under the remit of another Department, the Department of Transport.

The mussel man who sets out from Bantry on a foggy morning at 7 a.m. with his oilskins, wellingtons and sandwich box is asking if he will be finished because we will make a faux pas here. I know the Minister of State wants to reflect on this and I am sure he will. He has read some of his official notes and I am not saying they are wrong. I have deep-felt concerns, and I will outline them if I have to on Report Stage. I asked my Party Whip to defer Second Stage as I was attending a family wedding, and I was not given that courtesy. I have deeply-felt views on this, and as the day goes on my feelings will become deeper and my contributions will lengthen. I will not lie down easily on this issue.

There is no full Department of the marine. It is unfair to expect the Minister of State to pioneer the legislation through the House, notwithstanding his vast ministerial experience. There are a plethora of Departments now dealing with marine matters. What used to be the Department of the Marine has been dismantled. It is now spread across the Departments of Communication, Energy and Natural Resources, Transport, Arts, Sport and Tourism and Agriculture, Fisheries and Food. It was unclear until September of last year whether or not Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Mary Coughlan, who was then Minister for Agriculture, Fisheries and Food, would take responsibility for fisheries.

We are dealing with a marine issue. I am not the spokesperson on transport for the Labour Party, I am the Labour Party spokesperson on the marine. This issue is a marine matter. What happened to the mussel industry in Cromane during the summer was a debacle. The ban has now been lifted. I spent most of the summer trying to get information from the Minister for the Environment, Heritage and Local Government, Deputy John Gormley, who tic-tacked back with the Minister for Agriculture, Fisheries and Food on the issue. There was no sole Minister with political responsibility for the matter. An Einstein in a Department somewhere in Dublin decided to introduce a ban on mussel fishing in Cromane.

I made the point at length on that occasion that aquaculture and special areas of conservation could coexist. I may as well have been talking to myself. That ban has been lifted and we still have not found out the name of the genius who mooted the ban in the first instance. This is not fair on the Minister of State as he is a Minister of State at the Department of Transport. Who is responsible for this mess?

I will make a number of points on this legislation that directly affect Bantry Bay and the Bantry Bay Harbour Board. Where was the courtesy and common decency? There was no consultation with the local people on the Bill. There was a commitment given to meet them to discuss their concerns. Have we learnt anything in recent times? We have preached at length about consultation and communication in the North and other significant political areas of the country, and yet in an area as critical as this, a commitment is given to group of people in Bantry and is never followed through. That is discourteous.

It is also difficult to expect the Minister of State, Deputy Noel Ahern, who is not attached to the Department that should be dealing with this at junior ministerial level, to deal with this. It is unfair to him.

We should take what the Senators have said section by section and amendment by amendment.

Section 3, with which we are dealing, states this is necessary to take account of the court rulings in the Cityview Press and the Mulcreevy cases with regard to the power of a Minister to alter the limits of a company's harbour. This is what we are discussing. As I stated, the section outlines the principles and policies to which a Minister shall have regard when he or she extends a harbour's limits and boundary.

I understand the point being made and a 17 or 70 month delay occurring in obtaining licences sounds serious but it is not relevant to our Department. SACs were mentioned and the designation of such would be taken into account in any planning applications as would the preparation of EIAs. Most of what Senator O'Donovan referred to is covered under the clause about foreshore licences. I do not mind re-examining it and my previous remarks were in connection with what I saw as the original amendment, which considers it from a different aspect.

I understand what Senators O'Donovan and McCarthy stated and their concerns are covered. With regard to their wider concerns, I am not an expert on fisheries and that is being modest. I will not state how much or how little I know but I am not as knowledgeable as either of the Senators from that part of the world. They may be correct in many respects but with regard to what we are doing here, any fears they have are adequately covered. I stated we would examine it to see whether the amendment would strengthen it.

I do not know whether this amendment would be of much use with regard to the issues raised by Senators O'Donovan and McCarthy. I am not sure what is stated in the Cork county development plan with regard to mariculture or whether it is included. The Senators might comment on that and we will re-examine it with regard to the various matters raised.

The Chair has given a good degree of latitude on thisamendment.

A small number of amendments have been tabled and most are grouped. It is not the case that we will be here for the next six months.

I have concerns and I will read three or four brief paragraphs from a letter from the legal advisor of the Bantry Bay Harbour Board, Mr. Rory O'Callaghan.

Is this to do with the amendment or the section?

It is to do with both. It concerns controls, regulations and laws.

An important point was raised with regard to Cork County Council. I am subject to correction but I believe that approximately 12 years ago, a report made a number of recommendations with regard to Bantry harbour and one was that Cork County Council would take it over. At the time, I was a member of Bantry Bay Harbour Authority and we objected to being taken over by Cork Port Authority. A majority went for corporatisation by which the harbour would be independent and a minority, including myself, stated that in the event of anything happening we would prefer to be taken over by Cork County Council.

Lengthy talks took place and the assistant county manager for west Cork, Ms Theresa White, and her officials have established a liaison group with Bantry Town Council and the harbour with regard to the future of the harbour. We will remain concerned with regard to future licensing. The letter refers to Bantry Bay Harbour Authority being established in 1976 and this was because of the Whiddy Island disaster. I presume the reference to CPO capacities is to compulsory purchase order capacities and this also concerns me.

The letter from Mr. O'Callaghan states:

This Bill is currently going through the Seanad and the Harbour Authority have adopted a position whereby they are opposing the enabling provision in the Bill which proposes to amalgamate Bantry Harbour Authority with the Port of Cork. In that regard Bantry Bay Harbour Authority was established pursuant to the Harbours Act, 1976 and is a Port regulated and governed by the provisions of the Harbours Act, 1946. In contrast, the Port of Cork is a semi-State body governed by the provisions of the 1996 Harbours' Act.

The intent behind the proposed enactment of the 2008 Bill is to streamline the existing functions of the corporate ports, extending the limits of some of the ports, transfer certain provisions concerning CPO capacities from the Minister to An Bord Pleanála and provide for other "tidying up" provisions to enable the existing port companies to more efficiently conduct their business, raise loans, preparation of annual reports etc.

The letter, which is addressed to another member of the legal profession, continues to state that Mr. Callaghan's clients, Bantry Bay Harbour Commissioners, "are presently adopting a stance whereby they are opposing this Bill and, while they are seeking to exert as much political influence in this regard as they can, they also wish to explore their legal options and have requested me to inquire from you as to whether you are in a position to take a brief from them" with regard to the harbour authority taking a case against the State and prevent the State from doing what is proposed in the Bill.

There are other implications but my point is on regulation and whether Cork County Council will include this in its area plan or county development plan. This letter shows it is envisaged. My learned colleagues in the legal profession have pointed out to me that the Bill will transfer compulsory purchase order powers to An Bord Pleanála. What does this mean? It is of concern.

Not being parochial about Bantry Bay, this raises a broad issue. Does it mean that in the future we will have to deal with more than the Department of the Environment, Heritage and Local Government on environmental issues including coastal zone management and Cork County Council on local planning? As Senator Michael McCarthy pointed out, Bantry Bay has a tourism aspect and he also correctly pointed out that the fishing industry will be affected.

The Department of Transport is proceeding with the enactment of this legislation. However, another four or five Departments either do not care or have not been properly consulted. There should be a greater convergence of ideas and a more simplistic approach. I have a great fear of An Bord Pleanála. I spent the best part of 20 years as a councillor and I had war with An Bord Pleanála.

That comes up in a separate section.

It does but it is raised here with regard to control and zoning. I am extremely concerned that An Bord Pleanála, when it hears about Bantry Bay, will want to close the ditch west of Dunmanway — Senator McCarthy will be left alone — and provide a safari park for people to visit. Forget about fishermen and traditional rights——

A safari park for the Dublin 4 brigade.

It is grand for the people who can come in to the bay with their big yachts because they do not have to live there. We have to survive there. I appreciate the Minister of State has said he will reconsider this and I am sure he will return on Report Stage and tell us not alone were Senators Cummins and McCarthy correct but I was also following which we will have a plethora of Government amendments to reflect the points we made today.

Does the Minister of State have anything further to add?

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

This is getting to the point made by Senator O'Donovan a few moments ago with regard to transferring powers to An Bord Pleanála. The Minister is responsible for policy and in view of this the proposal to transfer powers to An Bord Pleanála is outrageous. It is a negation of responsibility. At least if the Minister is responsible we in the Oireachtas can hold him or her accountable and we have some type of transparency as opposed to if we hand power over to an anonymous body such as An Bord Pleanála.

We have all had our problems with An Bord Pleanála through the years. It would be a retrograde step to hand over these powers to the board. The Minister or the local authority should retain the responsibilities in this regard. I am opposed to handing over these responsibilities to An Bord Pleanála.

I agree with Senator Maurice Cummins in his opposition to section 7, which deals with the proposed transfer of certain ministerial functions to An Bord Pleanála, a proposal which should concern us all.

The explanatory memorandum states:

This amendment to the Planning and Development Act 2000 provides for the transfer of functions from the Minister for Transport to An Bord Pleanála in the context of the compulsory acquisition of land by port companies. This transfer is similar in nature to that effected by the Planning and Development (Strategic Infrastructure) Act 2006 with regard to the compulsory acquisition of land by Aer Rianta (now the Dublin Airport Authority).

We all began our political careers in local authorities. I sat on Cork County Council for the Skibbereen electoral area while Senator Denis O'Donovan was a member for the Bantry electoral area. A Leas-Chathaoirligh, you began your political career as a member of Mayo County Council. With the abolition of the dual mandate, we are no longer local authority members but as Senators, Deputies or MEPs, we are still public representatives. We have been put into this position by those in our communities entitled to vote on the electoral register — that was before the then Minister for the Environment, Heritage and Local Government, Deputy Dick Roche, messed it up. Our communities rightly look to us for assistance with planning applications.

Every day, as members of local authorities, we would have dealt with general planning applications and issues regarding one-off rural housing. The planning system, for all its faults, does on occasion turn up the result we seek. Throughout the planning process, there are various stages at which people can make observations concerning an application. A public representative has access to engineers and planners who provide two major reports on any planning application. Senator Denis O'Donovan already referred to the assistant county manager in west Cork who is a model of public service and listens and engages with local authority members.

I have never found that same level of co-operation and service with An Bord Pleanála. It frightens me that we are expanding its role in this Bill. It is an organisation that is almost secretive. Members have always complained in debates on rural planning issues about the role of An Taisce but I cannot identify any people attached to An Bord Pleanála. Any decision referred to it is dealt with in a closed-shop fashion. It is extremely difficult to speak to its members or get an insight into its decisions. Any of its decisions are published on its website meaning public representatives only have the same access as everyone else. We cannot get into the board's insight or thinking.

Regarding strategic infrastructure, the inspector from An Bord Pleanála gave eight reasons why the proposed hazardous waste incinerator to be located in Cork's lower harbour should not proceed. However, An Bord Pleanála ignored the advice of its own inspector and granted planning permission. I am not convinced An Bord Pleanála should be left to its own devices. Some element of local democracy needs to be injected into the organisation.

I am vehemently opposed to section 7. Senator Denis O'Donovan rightly pointed out that in years to come it will be asked were these points raised when the Bill was going through the Seanad. I am glad the record of the House will reflect the concerns and reservations of Members from all sides.

I accept the Minister of State at the Department of Transport, Deputy Noel Ahern, is operating under instruction and to tight parameters. When he was Minister of State at the Department of the Environment, Heritage and Local Government, we had many frank and robust exchanges on the planning process in the House. Will he examine section 7 and understand it from the perspective of local authority members and the people? Local authority members are entitled to some reward from participating in local government elections. It is not good enough that we can give this kind of power to An Bord Pleanála. It is in our gift to stop this going through.

I have grave reservations as to what might occur if these provisions are accepted. Recently, the Cork Port Authority, with the support of Cork Chamber of Commerce and Cork County Council, proposed to build a major transhipment container facility in Cork Harbour. Such a facility would be welcome in the south. The proposal was referred to An Bord Pleanála which rejected it, in essence, claiming the plans were overambitious.

In my travels I have met with people from Hong Kong and South America who never could understand why the south, adjacent to the greatest shipping lanes in the world, did not have a greater capacity for dealing with container shipments. I recall when the Whiddy Island oil facility closed down in Bantry, it was suggested it be developed as a container port but nothing came of it. The movement of goods across the world by sea is on the increase, not only from North and South America but from the developing Chinese economy.

The first opportunity to develop a port for major capacity in the south was recently shot down by An Bord Pleanála. At a time when the economy is contracting, we must grasp these commercial nettles and be proactive in developing our ports and harbours. In case I am accused of having something personal against An Bord Pleanála — maybe I have — a grave mistake was made in the 1970s when certain planning powers were taken away from the Minister. Some claimed these powers were politically abused and as a result An Bord Pleanála was established. As a public representative active in politics for 23 years, I have no sympathy for An Bord Pleanála. Whenever I hear an application is with it, a shiver goes down my spine because the result usually ends up the wrong way around.

Section 7 concerns compulsory purchase orders. Those also raise serious issues. CPOs can be like using a sledge-hammer to crack a nut. It is proposed in the Bill that the power to deal with such matters would be taken from the Minister and given to An Bord Pleanála. I have serious concerns about this. Frankly, my concerns would not be as deep as those on other sections of the Bill. However, I would have grave worries and I am glad that Senator Cummins has raised this.

Perhaps the Minister of State in his response would outline the precise position. The Bill is vague on it. One would want to be a mathematician and one of the top officials behind the scenes in the Bills Office preparing Bills to understand section 7. The section contains a plethora of sections and subsections, etc.

If I am correct — the Minister of State can enlighten me further — we are throwing away the baby with the bath water because every power possible is being given to An Bord Pleanála. In this regard the section refers at length to the Planning and Development Act 2000 and to transfer of certain ministerial functions under the Harbour Act 1996. I refer in particular to subsection (2), paragraphs (c), (d), (e), (f) and (g).

My concern here relates to the powers of the Minister. I have difficulties with Ministers, sometimes even with my own Ministers although not with the Minister of State, Deputy Noel Ahern, who is a gentleman.

Do not goad me now.

I have strong concerns that we are taking from the Minister certain powers to give to An Bord Pleanála. We are all are being told about political responsibility, transparency, etc., and another part the Bill provides that members of local authorities cannot be on boards, but in some instances political responsibility can be good.

Here we are transferring this power to An Bord Pleanála and I do not think it is properly thought out. Again, I must be parochial. I think of the problems coming down the track for Bantry Bay where some fellow will make an application only to withdraw it.

Recently, we had a nice situation on the shores of Whiddy Island where young fellows who admirably returned to the island and a few local fishermen were involved in scallop and other farming in the coastal area trying to make a few bob. They find it almost impossible to get an aquaculture licence. The Department of fisheries, and particularly BIM, is supporting them financially stating this is a good idea and it will give them 30% or 40% grants to help the venture get off the ground. The other side of the coin, as I mentioned earlier and as I am sure the Minister of State will not be aware as it relates to another Department, is the 70 month delay in applying for aquaculture licences, a crazy delay of nearly seven years. An Bord Pleanála is putting its hand into the pie as well. God help the guy who wants to start up in that line of business. It involves the local authorities, the Department dealing with the marine — it keeps changing Department — which is now the Department of Agriculture, Food and Fisheries and the Department of Transport. It is now proposed to include a role for An Bord Pleanála.

It is like baking a Christmas cake. I have a funny feeling there are a lot of ingredients here — the cherries, the raisins and all the other bits and pieces. The Acting Chairman would probably be more familiar with baking Christmas cakes than I, but I am worried we will get the mix wrong and that the fruit will sink.

The temperature might not be correct.

I am thinking about the old days of the bastable, to be good to my mother, when it would be made over the fire with the sods of turf on top and if the fruit sank, we would have no Christmas because there would be tears, etc. I am worried that in this respect we are adding an ingredient that will ensure that the fruit will sink and we will have a result we never anticipated. Senator Cummins is correct to bring this to our attention.

Let us stand back and reconsider this. On other issues we see already that An Bord Pleanála is overloaded with the result that people are left waiting four, six or 12 months when an appeal is submitted on a simple rural planning application, for instance, in parts of Waterford or west Cork. County Mayo has no problems with planning, of course. It is now proposed to transfer great autonomy to this body when it is already overworked, overloaded, understaffed, underpaid and so on.

With all due respect, most of the members of An Bord Pleanála know nothing about coastal zone management, the fishing industry and know less about what is appropriate for areas. They could take out their book and state what should happen. However, very few of them will go down, tog off, put on their rubber boots and oil skins and spend two or three days out hauling mussel lines on a trawler or hauling a few lobster pots or whatever.

I do not know from where this thinking comes. It is difficult for me to express such serious reservations on a Bill produced by my own Government. I am concerned that An Bord Pleanála cannot cope with its current workload, never mind deal with these issues.

A typical example, which I reiterate, is what happened in Cork port where a huge container development was planned for the south. All our strategic plans have made clear this is needed. It could be in Waterford or Cork — it does not matter. It is needed because in the shipment of containers, having regard to our geographic position in the western point of Europe, we are probably availing of 0.01% of the opportunities that are available in the line of jobs, shipping, etc. They are passing us by and going to Rotterdam and several English ports.

If I am correct, the first application for a port company, made under the Planning and Development Act 2000, was shot down. It was the first acid test for An Bord Pleanála but instead of stating that the applicant was too ambitious, that the scale and size of the application should be reduced and that there was a need to go back to the drawing board, Cork County Council was not given any say. Legislation enacted a few years ago transferred this power, which should be with the Department of Transport, to An Bord Pleanála. Guidelines were sought from the board but in its first acid test it indicated it has no interest in marine matters. It shot down the proposal in Cork.

Cork City Council, Cork County Council, Cork Chamber of Commerce, Cork Port Company were all in favour of the proposal. They conducted considerable research and spent a deal of time in seeing how they could develop Cork port into what it should be, and I welcome that. As the Minister of State will be aware, I do not welcome the possible shotgun marriage with Bantry Harbour, but I welcome the development in Cork which is good for the area. However, in the first serious test of the capacity of An Bord Pleanála to deal with such matters, it has shot down this proposal by Cork. What angers me more about An Bord Pleanála's interference in this is that it has put this project back five years with the result that the financial statue of the country and the capacity to develop and expand has diminished.

In the past year or two the economy has contracted. Next year and the following year could be worse. Hopefully, it will not be too bad. Yet, An Bord Pleanála rejected a proposal through which we could now be creating jobs in expanding this port and bringing more commerce and industry into Cork for the southern region. Why was it not possible for the board to come back, as a local authority would, stating that it would give the planning applicant a three months' extension or it should go back to the drawing board and resubmit its proposal? Instead, it declared the matter was at an end. There may be other planning reasons, which I have not fully studied, but this episode crystalises my worry about An Bord Pleanála interfering with rural Ireland and with this Department. The idea of the Minister and the Department handing over such powers to An Bord Pleanála makes me sweat with worry.

I join Senator Cummins in opposing this section. It is outrageous that the Department of Transport would give away the power to make compulsory purchase orders to An Bord Pleanála, a board in which I have little confidence. Let us be fair and frank about this. A compulsory purchase order is, as Senator O'Donovan said, a sledge-hammer tool. The former Minister for the Marine and Natural Resources, Deputy Fahey, gave Shell the power to make compulsory purchase orders to acquire land in north Mayo. If that power had been left to the local authority, there might not have been as many controversies in recent years and matters might have been easier for Shell. The power to make compulsory purchase orders was an unbelievable power to give to a company. Consider the powers being given to An Bord Pleanála in the Bill. The board is given compulsory purchase order powers with regard to "land, easements, rights over land (including wayleaves and public rights of way), rights over land or water or other such functions as may be necessary". That is a huge power.

Under this legislation, the control of many harbours and piers will be vested in port authorities. Will the compulsory purchase order power be given to An Bord Pleanála only in those cases? Other harbours and piers are still under the control of local authorities. Local authorities have compulsory purchase order powers but will An Bord Pleanála now have compulsory purchase order powers for all the harbours and piers throughout the country? It is not clear from the legislation before us. As Senator O'Donovan mentioned, there are many figures and amendments to sections included in this section, and one would have to be a genius to figure out what is actually contained in it. Senator Cummins and I oppose it. I am sceptical about giving compulsory purchase order power to An Bord Pleanála.

Why could that power not be vested in the local authorities? Local authorities have done a wonderful job over many decades in using the power of compulsory purchase, be it for road widening, harbours, piers, housing and many other functions. I would have far more confidence in the local authorities. The local authority is an accountable body through its elected members. An Bord Pleanála is not accountable to anybody. If one asks the Minister about An Bord Pleanála, he will say he has no power over it. It is an unelected body that is unaccountable. The Minister is going down a dangerous road with this provision and I support Senator Cummins in opposing it.

First, there are no new powers in this Bill. It simply transfers powers previously held by the Minister to An Bord Pleanála. Let us be honest about this. In this House and in the Dáil there is much talk about the necessity to have appeals boards. People assert that a Minister or local authority should not make the final decision and call for the establishment of appeals boards. The appeals board for many issues nowadays is An Bord Pleanála. I was a member of a council for many years as a public representative. To be honest, one hates An Bord Pleanála one week and the next week one loves it. It depends on the decision. Somebody must make a decision. Many times one is horrified by An Bord Pleanála because it appears to go against what one wants but on other occasions it can save one from one's local authority. I felt that way many times. Even when I was on the local authority——

The cases are few and far between.

——I often thought the local authority was off the wall. Everybody can have his or her opinion but, as in government and other areas, somebody must make the final decision. That is how it is. It is God, so to speak, in that it makes the decision and the rest of us will love it or hate it as a result.

The Senator referred to the decision made about Cork port. Personally, I might regard that decision as strange, given my background, particularly the reference to it not being rail linked and so forth. I spent years working in CIE when it was Government policy or CIE policy to close down railways. I might have found that decision——

There are rail links in Waterford.

Yes, Waterford still has its links. I might have considered it a strange decision but there was another side to it. It was not the case that all the people in Cork wanted that decision. The port of Cork might have wanted it but there were very vociferous residents' groups with legal support who were ready to die in the ditches if it was given approval.

They object to everything.

The Senator has the luxury of being from west Cork and its beautiful countryside; he does not represent Cork South Central. It is fair to point out that no matter what way that decision went, there would have been a body of people frothing from the mouth and very unhappy. That is the way it goes; these matters are not perfect.

The Bill gives to An Bord Pleanála the functions that were previously held by the Minister with regard to compulsory purchase orders by port companies. From the point of view of the Department of Transport, that decision is consistent with existing legislation in regard to the compulsory purchase of land by the Dublin Airport Authority. My constituency on the north side is more urban but I received complaints over a number of years about how Dublin Airport or Aer Rianta compulsorily purchased land for runway extensions and so forth when the local authority was involved, so everybody was not necessarily happy just because An Bord Pleanála was off the scene. However, in recent years the powers that existed under the Air Navigation and Transport Act have been given to An Bord Pleanála to adjudicate on those compulsory purchase orders. Members referred to the compulsory purchase order powers of local authorities. Many local authority compulsory purchase order functions in respect of a number of roads Acts, water supplies Acts and housing Acts have been also transferred to An Bord Pleanála in recent years.

An Bord Pleanála is the appeals body for a number of areas and over time it is acquiring and building up a body of expertise and experience relating to the planning aspects of major infrastructural development. The view in the Department is that it is a logical step, given that we extended the powers of An Bord Pleanála to deal with compulsory purchase orders for the airport, to extend that same system to ports. It is a consistent decision and is in line with best practice. It simply gives An Bord Pleanála the power held previously by the Minister. I heard Senator O'Donovan's analogy about baking a cake, but An Bord Pleanála is the expert body. It is building up expertise and is the independent appeals board. As I stated, depending on one's point of view, it may get a decision right one week and wrong the next. If the Minister had the decision-making power, people would be giving out anyway.

It was stated this measure was a sledge-hammer proviso. I accept that doing business by compulsory purchase order is not necessarily the first approach of local authorities or others. Only one such compulsory purchase order was made since the enactment of the Harbours Act 1996. The powers the Minister has and which we are transferring to An Bord Pleanála allow for full public consultation prior to any decision on an application. The opportunity will exist to lodge an objection and there will be a full appeals process.

The power in question concerns only ports and not harbour authorities. From the Department's point of view, it is a very consistent decision. We are transferring powers to An Bord Pleanála, as we did with airports. It is a consistent, logical decision in accordance with best practice. Compulsory purchase orders are not used very often — it is better to negotiate and do business in another manner — but can be made on the odd occasion when deemed necessary. It is easy to complain about the body that must make decisions in this area, but it must be remembered An Bord Pleanála is building up expertise and is the independent appeals board. From our point of view, the proposal before the House is logical.

I respect the view of the Minister of State but cannot agree with him. Handing over these powers to An Bord Pleanála is a negation of democracy. If the Minister has responsibility for decisions, the elected representatives of the people can debate them in the Houses. Handing over the powers to a body that made dubious decisions in the past according to many local authorities is not the approach we should be taking. The Minister should accept the responsibilities he has and not transfer them to An Bord Pleanála.

This matter was raised by quite a number of Senators on Second Stage, especially Senator Ellis. There was strong support from the other side of the House for the view that the responsibilities should not be transferred. I hope Members on the Government side will vote in accordance with what they were saying on Second Stage. Senator O'Donovan was not present at the beginning of Second Stage for the reasons he outlined. We are sticking to our guns in opposing this section and if we must put it to a vote, we will do so.

I acknowledge the Minister of State is saying the provision affects only ports. This is what we are here to debate. Indirectly or directly, it will affect the ports in Cork, Bantry and Fenit, on which my good friend Senator Ned O'Sullivan spoke on Second Stage. He has grave concerns for many reasons because a shotgun marriage is being proposed in respect of Fenit port and the Shannon Foynes Port Company. The proposal will affect Sligo, Drogheda and other ports.

Irrespective of whether we like, An Bord Pleanála is the appeals body regarding many issues. This will not change my political life in that I am practical and pragmatic. Coming from rural Ireland, I have had long-term differences with An Bord Pleanála. The Minister may be right that, in respect of major developments in Dublin and Cork cities, he was sometimes saved by decisions of the board. However, in my 19 years as a member of a local authority, An Bord Pleanála had a very jaundiced view of rural Ireland and particularly planning associated with rural areas. One in 100 planning applications was accepted, and this was sometimes for spurious reasons.

I argued this point with An Bord Pleanála with regard the Sheep's Head peninsula, which adjoins Bantry Bay. The two most recent censuses show a population decline of almost 30% in my home village, Kilcrohane. Schools are closing. Mention was made of class sizes and in this respect it is almost a joke to refer to Rossnacaheragh-Ahakista school, which has 13 children and two teachers, and Kilcrohane school, which has 29 children and two teachers. This is not a big issue but it is ironic that the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, is investing money to help CLÁR areas while An Bord Pleanála is not letting anyone build in them because the children might go to school, thus saving the schools, and because the football team might be supported. That is why I have a jaundiced view of An Bord Pleanála. In my political life, the decisions of An Bord Pleanála that reflected my viewpoint were as scarce as teeth in a duck.

With due respect to the Minister of State, An Bord Pleanála will not be an appeals body but — excuse the pun — the port of first call. While I accept those who opposed the plan for the Port of Cork, who may be articulate and well-heeled, may have some rights, I believe we either have a port or we do not. An Bord Pleanála, in its first test, shot down the proposal. In that instance, the 48 members of Cork County Council, which had jurisdiction, had no input into the planning decision.

The Planning and Development Act 2000 was to fast-track planning decisions. I spoke on this previously as a Member of the Seanad. Instead of proposing to continue to operate through the local authority and deal with material contraventions and with awful councillors, which I probably was from time to time, it was proposed that major infrastructural proposals would be dealt with directly by An Bord Pleanála. It was proposed that the local authority stage be skipped, which was undemocratic.

While I accept that many of the decisions will affect only ports, which could include those in Sligo, Bantry, Cork, Dundalk and Fenit, which is famous in more ways than one, An Bord Pleanála, as a consequence of the Planning and Development Act 2000, will not be dealing solely with appeals. The Minister of State should correct me if I am wrong but I believe that, on decisions on ports, foreshore rights, riparian rights and land acquisitions, An Bord Pleanála will be the port of first call and the normal planning process with which we grew up, involving decisions by county councillors, planners and engineers, in addition to material contraventions and rare section 4 motions, will be leapfrogged. We did not always get it right but we did so in 80% or 90% of cases. On a critical issue An Bord Pleanála was put to the forefront instead of the local authority. I may be wrong on that but I believe I am correct because this was a critical case involving the development of Cork port.

I emphasise that, to the best of my knowledge, the Cork Chamber of Commerce, the city manager, and the city councillors, although perhaps not unanimously, were agreed that something had to be done. The venue for first decision was An Bord Pleanála and it shot down the proposal. I heard the debate on it. I cannot say I am an expert on it but if that is the case, why is there not a mechanism in place whereby An Bord Pleanála can decide that there is a problem, put back the issue for two months and have public consultation with elected members and so on? I am concerned that it is being given a substantial power in this Bill. I fear that it examines the academic and technical planning reasons and not, as I mentioned in respect of Sheep's Head peninsula and the other planning applications, the socio-economic problems going forward in a country whose economy is in decline. We are talking about the construction of a fairly substantial container port shipment. I have seen similar projects in Rosario, Hong Kong and other countries where there has been major port development. We are missing the boat here.

An Bord Pleanála should consider what we are doing in regard to development in Ireland. I am not talking about mariculture or otherwise because the day will come when we might have another 150,000 people out of work and marching on the streets and we will ask why we allowed An Bord Pleanála let this happen, which would have created 50 or 60 jobs. I am not talking about destroying the infrastructure but Cork port is either a commercial port or it is not. An Bord Pleanála seems to be saying it is but it will not let it expand or develop. I do not like those decisions.

Does the Aire have anything to add to that?

I do not necessarily like the role of standing up for An Bord Pleanála but I am sure in all those decisions in the Senator's constituency or any other constituency it takes into account the decision of the local authority and the development plan of the area. I presume the development plan would take account of many of the other issues about which the Senator spoke.

It is the case that in recent years we have expanded the role of An Bord Pleanála, particularly in the strategic infrastructure legislation passed about two years ago. What was done in Cork was done to streamline the process and to ensure applications would not be a year with the local authority awaiting a decision and then perhaps another year with An Bord Pleanála. It was designed to speed up the process and to ensure there was a thorough examination of applications without the same argument being put forward several times or, in some cases, people bringing a case to court where the argument would be made all over again.

Under the strategic infrastructure legislation, An Bord Pleanála is now the determining body in respect of planning approvals for major infrastructural developments at commercial ports. The Senator is right to say that in this case it is not the appeals board. It is the first adjudicator, so to speak, but under the strategic infrastructure legislation, where it is deciding on major developments sent to it, it is common sense that it would also be the determining body with regard to adjudicating on applications for compulsory purchase order. It would not make sense to put that through a longer process. They are intertwined. If it is deciding on the major development, why can it not decide on the CPO?

For good or for bad, this has been the trend for a number of years. What the Department of Transport is putting in this Bill is logical and is in conformity with best practice as done in other legislation such as that dealing with the airports. While several Members lauded what the local authorities do, many of the powers of the local authority on CPOs have been given to An Bord Pleanála in recent years and it is now deemed to be the experts. The power about which we speak has been rarely used in the past 12 years — by the local authority or whoever. It is used only as a last resort when required. This is a logical, consistent measure. We are applying the same best practice to CPOs on ports as we apply to airports. That is why we are inserting what I believe is a good measure in the Bill.

Is section 7 agreed?

Before the Senator takes the issue a step further I want to make a few brief comments. I accept what the Minister said but I want to record that I supported the strategic infrastructure legislation. The Minister said the power has been used rarely in the past few years for long, drawn out CPOs. I chaired a committee on the Constitution that examined the area of property rights and so on but we could have thousands of CPOs were it not for the fact that the Irish Farmers Association negotiated with the National Roads Authority — I am using this as an example — in regard to the building of a motorway or dual carriageway from here to Cork. There was also one being built to the west and one to Limerick. There would have been ructions, CPOs and legal wrangling if that were not the case. The IFA negotiated a good deal on behalf of the farmers but it is a different matter when it involves CPOs around port areas because different groups and rights are involved. I can see a major problem arising in the Bantry Bay area with inshore fishermen who have rights going back almost to the Magna Carta.

The continuous transfer of projects like this to the point of first adjudication, as the Minister called it, namely, An Bord Pleanála, is fundamentally wrong. I say that because numerous local authority and ministerial powers have now been handed over to An Bord Pleanála. I have an axe to grind with the Minister of State, particularly with regard to planning in rural Ireland. I am talking about cases where the local authority and the local engineers approved an application because an individual needs to live in a remote area with, say, his or her elderly aunt or uncle. I must differ with him on that because in most instances where the council granted planning permission, An Bord Pleanála rubbed all our noses in it and refused permission. Nine out of ten would be appropriate but that is rural Ireland. Sín scéal eile. It is a different day, but I have reservations on the matter.

We are handing over many powers to An Bord Pleanála. The Minister of State may not be in a position to respond to this point but with all the extra obligations and duties now being given to An Bord Pleanála, as the first adjudicators in issues like this, does it have the necessary powers and resources? The Minister says it has the expertise. Perhaps it does; I do not doubt that although I have my misgivings, but does it have the extra powers and resources to deal with this entire situation?

I agree in principle with the strategic infrastructure legislation. However, on the provision of the metro line from the centre of Dublin to Dublin Airport, for example, if we take that to its logical conclusion, approximately 20,000 householders will have to be consulted because under the law, technically speaking, one owns everything above and below one's house. We recommended that, under our Constitution, the State should control any area below ten metres, or 30 feet, and fast-track this project because it would not be possible to deal with every householder. There is much merit in the strategic infrastructure legislation but does An Bord Pleanála have the staffing levels to cope with all these additional powers because these issues take time? For example, an appeal in respect of an application for planning permission in a rural area in Kerry, west Cork, Mayo or Waterford currently takes four months to process. In many cases, the planning authorities — they have the right to do so — write to those making appeals and inform them that such appeals could take up to eight months.

As it is 1.30 p.m., and according to an order of the Seanad today, we must suspend the sitting until 3 p.m.

The Senator will have a fresh wind by then.

I am just starting.

Sitting suspended at 1.30 p.m. and resumed at 3 p.m.

I do not wish to labour the point as we cannot develop it much further. We have had a lengthy debate on section 7, which is opposed by Senator Cummins and others. I urge the Minister to reflect on what has been proposed in the section, if not now, before Report Stage. I refer in particular to section 7(2)(b) concerning two wide-ranging issues. I am somewhat concerned that we may be giving more power to An Bord Pleanála than is appropriate. The measures would affect Bantry Harbour, my home area, Fenit in Kerry, Sligo and other ports. Section 7(2)(b)(2) states:

"The transfer of the functions of the Minister for Transport [The Minister is giving away those powers.] in relation to the compulsory acquisition of land in accordance with subsection (1) shall include the transfer of all necessary ancillary powers in relation to the substrata of land, easements, rights over land (including wayleaves and public rights of way), rights over land or water or other such functions as may be necessary in order to ensure that the Board can fully carry out its functions in relation to the enactments referred to in subsection (1).",.

Will the Minister of State clarify what is meant by "substrata". Do we mean the high-water mark or the ebb tide? For instance, in my area of the Port of Cork approximately 60% of the foreshore rights of Bantry Bay are owned by the former Lord Bantry, now vested in Bantry House. Recently, the harbour board in Bantry purchased a quarter mile of those rights in good faith and at market value in order that developments could take place within the inner harbour. What is the impact of the compulsory powers vis-à-vis the rights of the former Earl of Bantry in that regard? What is the situation? A lot of mariculture and aquaculture activities take place in relatively shallow water, for example, scallop culture. Like my colleagues, I have concerns about the potential impact of the section. It is not unreasonable for the House to request the Minister of State to outline in more specific detail the exact powers that are being given to An Bord Pleanála.

I do not wish to return to the example of the Cork port authority and what happened there but I have concerns because of previous local experience regarding the rights of authorities. I refer to the dredging of the inner harbour in Bantry, which is potentially possible. When the Taoiseach was Minister for Finance he provided approximately €4 million through the Department for the project but that money has still not been spent and many investigations are ongoing in that regard. What impact would the proposed change have on such developments?

I do not wish to labour the point but I have genuine concerns. I am sure my colleagues who spoke previously have the same fears. Senator Ned O'Sullivan spoke on Second Stage about the developments regarding Fenit and the possible consequences for huge development in Foynes in the Shannon Estuary region. There are also implications for Sligo. In the not too distant past it was proposed that Sligo Port would relocate. The Minister of State is aware of the major concerns about the relocation of Dublin Port to Balbriggan. Similarly, there are concerns about the control and development of the ports of Drogheda and Dundalk. Other ports about which there is concern include Rosslare Harbour, which is probably one of the most popular ports in Ireland, Waterford Port and New Ross. Perhaps I am being unfair to An Bord Pleanála but I have worries about it. Local authorities can have more local knowledge on which to base decisions and a greater bird's eye view of what is happening in ports. I have grave concerns. The proposed legislation in section 7 is all-encompassing. It is a very broad omnibus provision.

Recently, a proposal was made, in co-operation with Cork County Council, to run some sewage pipes along the foreshore within the inner harbour in Bantry. However, it could not be done without the consent of the harbour board and Bantry House. Fortunately, Bantry Harbour board had bought the rights in that area. Outflow pipes were put in place to bring raw sewage to a place where it could be purified. I suppose it should have been done many years ago. The foreshore was a big issue in that instance, as it is with every move that is made. I appreciate it does not have an impact in places like Baltimore and Kinsale. At one stage, we had to wait two or three years for a foreshore licence to be granted so that progress could be made with a proposal relating to the inner harbour in Bantry.

Will foreshore licences remain within the remit of the Department that is responsible for marine and fisheries matters? Are they within the remit of the Minister of State, Deputy Noel Ahern? I recently heard that certain functions and powers with regard to foreshore rights, or some other rights, have been delegated to the Sea-Fisheries Protection Authority, which is now based in Clonakilty. Perhaps I could be enlightened in that regard. These matters cause concern when we try to make quick progress with foreshore projects. My colleague, Senator McCarthy, will confirm that it took a long time for the local authority to issue foreshore licences in respect of sewerage jobs in Baltimore and Schull. When I was prodding this along, just as one uses a prodder when one is loading cattle onto a truck, I was told there were problems with staffing. I had to contact the Office of the Attorney General and the Office of the Chief State Solicitor. There are worries in this regard. Where do we draw the line? What powers are to be given to An Bord Pleanála? I am not sure if the Minister of State can allay my fears today. Can he get more information on the matter in advance of Report Stage, which I understand will not take place until February 2009?

I support Senator Cummins in opposing this section. My comments are on the record. I thought we had moved on to the next section, but we have not.

We had a reasonable discussion on this matter before lunch. As I said then, no new powers are being created in this section. The existing powers are being transferred from the Minister to An Bord Pleanála. The powers in question are clearly laid down in the Harbours Act 1996. We are not creating any new powers. Section 16 of the 1996 Act provides that a port company may "acquire compulsorily any land" in accordance with paragraphs 1 to 6 of the Fourth Schedule. The legislation in question sets out the process for such an acquisition and specifies the powers in question. It requires full public consultation to be undertaken and provides for objections to be made. We are not creating any new powers. We are simply transferring responsibility for the existing process, which is provided for in the 1996 Act, from the Minister to An Bord Pleanála. From the point of view of the Department of Transport, that is a fully logical and consistent approach. The same thing has been done in respect of airports. It seems logical to treat ports the same as airports.

The foreshore issue that was raised this morning is being considered by the Department of Agriculture, Fisheries and Food. The transfer of the power to initiate a compulsory purchase will not have any impact on the Bantry Bay proposals, which are under discussion. The powers relate solely to the compulsory purchase of land for State commercial port companies. The powers that currently are exercised are listed in the Fourth Schedule to the 1996 Act which sets out the process I have mentioned. They can be used at any time but have been used just once in the 12 years in which they have been in existence. We are not creating any new powers. We are simply transferring the power to administer the existing rules, regulations, conditions and processes from the Minister to An Bord Pleanála. I am not inclined to agree with the point being made by the Senators. I do not see any need to refer back to them.

Question put.
The Committee divided: Tá, 27; Níl, 15.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Mullen, Rónán.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Ross, Shane.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ryan, Brendan.
  • White, Alex.
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Maurice Cummins and Michael McCarthy.
Question declared carried.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

We oppose this section very clearly because it envisages the scrapping of local authority directors and reducing board membership such that the community representative will be also abolished. This is an assault on local democracy. That is the thinking that surrounds this motion to oppose this section. In the Minister's previous role as Minister of State at the Department of the Environment, Heritage and Local Government he was intrinsically involved with local authorities. He came from a local authority and his family members were on local authorities.

He is someone who understands the basic tenets of local democracy. What is wrong with members of local authorities serving on these boards? Surely they bring an element of local democracy to the proceedings and they may also bring a level of expertise. People depend on local government to ensure their views are expressed, through their councillors. If this Bill proposes to bring an end to that process, then I am fundamentally opposed to it. I know that some Members on the Government side feel the same way but they must be loyal to their Minister and party. However, I urge the Minister of State to consider this amendment carefully. He has been very obliging in the past and is someone who deals with legislation with an open mind. I appeal to his better judgment and ask him to look favourably on my request to accept this amendment.

I raised this matter during the Second Stage debate on the Bill because I believe this provision is a retrograde step. I served on the board of a port company in Waterford, where there were three local authority members — one from Waterford County Council, one from Waterford City Council and the third from Kilkenny, where the actual port is located. The local authority members were people who had expertise in the area.

I worked in Waterford port for more than twenty years and served on the board of Waterford harbour commissioners from 1979 and that is why my local authority appointed me to the board of Waterford port. There are many other people like me around the country. I do not understand why local authority members are being precluded from serving on such boards. People should be appointed on the basis of ability. There are many local authority members who are well qualified and have the necessary experience to make a valuable contribution to the boards of port companies.

I agree with the proposal to reduce from 12 to eight or nine the number of serving members but why make the local authority members the scapegoats? The Bill refers to the fact that the Minister "may" appoint one member of a local authority to the boards of port companies, but does not place an obligation on him or her to do so. As has been already stated, this is an attack on local democracy.

I urge the Minister of State to examine the attendance records of the boards of port companies. I would bet my bottom dollar that councillors have a better attendance record and are making a more significant contribution than some of the other so-called experts serving on the boards.

I fully support Senator McCarthy on this issue. A number of speakers on the Government side of the House expressed their concerns on this matter during the Second Stage debate. There appears to be a common thread running through all types of legislation coming before the House lately whereby local authority members are precluded from serving on various boards and bodies. Such members were elected by the people to represent them locally but the legislation is suggesting that they are not good enough to represent the people on boards of companies such as port companies. Ports are the heart and soul of areas like Waterford city and to preclude local representatives from port company boards would be a retrograde step.

I urge the Minister of State to rethink this matter. The idea of excluding local authority members is obviously coming from officials who are dealing with the entire legislative programme. Some people might ask why local authority members should be on the boards of port companies but if the Minister of State examines the record of such members, he will be pleasantly surprised to find that they are the ones who make valid contributions and who are in attendance more than any other members. Their good attendance is not due to them receiving expenses, lest anyone should make that suggestion, but because they have an interest in port affairs in their local communities.

This provision should be revisited. Going from a situation where there are three local authority members on the boards to the possibility of only one being appointed is not good enough.

I must say a few words in support of Senator McCarthy's amendment. While I accept that Deputies and Senators should not serve on the boards of port companies, I must agree with the previous speakers that many local authority members have served well on such boards.

Most harbour boards are made up in the same manner and the situation at Bantry port company is replicated throughout the country. The Chambers of Commerce of Ireland appoints two members to Bantry port company. The town council also appoints two members as does the county council, which is very democratic. That option is being taken away under the terms of this Bill. The trade union movement nominates one member of the board. The Irish Ports Association, which is a national body, also appoints two members to the board. Members of that association include skippers of tug boats, able seamen and pilots who navigate ships in and out of bays.

I took part in a "Questions and Answers" programme some time ago where the issue of port company boards was raised. During that discussion, I was accused of political cronyism by an eminent journalist who shall remain nameless. At that time, the Minister of the day had the right to nominate three people to the boards of port companies, one of whom had to be from the trade union movement. The trade union appointee in Bantry has worked very well on the board and that applies to other ports as well. There is a perception that there is political interference in these boards, with no regard for whether that is actually true.

I served as a member of Bantry harbour board and was proud to do so. I rarely, if ever, missed a meeting. At the time, members of the board got £40 for attending monthly meetings, some of which started at 7.30 p.m. and went on until midnight. Members decided, even though the harbour was making money, to forego the £40 payment as a gesture of goodwill. Accusations of political cronyism do not stand up because out of the 11 members of the board, only two could be appointed by the Minister.

The Bill proposes to reduce the numbers serving on boards of port authorities. In Cork, for example, the board will be reduced to eight members. If Bantry harbour board is subsumed into the Cork port company, will it have one member on the reduced board of that company? Who will that member be? The same question applies to Fenit. My colleague, Senator Ned O'Sullivan spoke at length about Fenit on Second Stage. While I do not want to dwell on Kerry, would Fenit have one or more members on the board of the new Foynes Shannon region company? Let us return to the area of corporate governance.

My colleagues will be aware of the important role LEADER plays in rural Ireland. It is funded by Europe to a certain degree, and by the Department of Agriculture, Fisheries and Food, and is supported by the Department head by the Minister for Community, Rural and Gaeltacht Affairs, Deputy Éamon Ó Cuív. In west Cork we have amalgamated the West Cork Community Partnership with LEADER, it was a successful marriage that took some time. There was a 12 month courtship period, but they decided to get engaged and now they are married. There are 17 members on the new board. I am subject to correction, but seven or eight members serving west Cork until 2012 or 2013, are county councillors or town councillors. They have a budget of €270 million for LEADER projects which has a wonderful opportunity to promote rural Ireland. I have no problem with that.

Some of the councillors represent two islands. One councillor who is a member of the islands' committee — there are seven inhabited islands off the west Cork coast — is on the new board. I am proud of the fact that the Bantry Port Authority union representative is a man from Whiddy Island. It is great to see a fellow from the island involved in the union and able to get onto the board of the local port authority. Who will be excluded as a results of savings made by the contracting of the new port companies? I have been told that Bantry will be lumped in with Cork, and people in Bantry, the Sheep's Head and Adrigole — which has the largest stone quarry in Ireland and exports million of tonnes of stone each year to Wales — will be disenfranchised.

Will Cork City Council and county council have a member on the new port board? Cork Port Company is viable and a substantial commercial entity in its own right. Will we come to the stage where no member of Cork County Council or the city council will have any say in that? The same applies to Waterford Port. I am deeply concerned about that. The same applies to Baltimore, which is a small harbour. They ensure fishermen have a say. The composition of boards is important, even if it meets with the approval of someone in an ivory tower office. We have a corporate governance situation of aligning ports. I will be in this Chamber for the rest of the day and the rest of next week, and I will be unconvinced that a shotgun marriage between Bantry Port and harbour is unique. The notion that local authority members cannot be on port boards is not only a retrograde step but makes no sense.

Most councillors work very hard and get little thanks for it. There are two county councillors, and others from the urban council and the Chamber of Commerce in Bantry, who give of their wisdom and time to these meetings. Some people wonder what is happening on Bantry Harbour Board. It is amazing what happens there for the betterment of the harbour. In Bantry Harbour, we are able to discuss — I am not currently a member — issues like contamination in the inner harbour. Where did the mercury come from? Another Department is doing site investigations that will succeed in dredging going ahead. There were mines in Bantry 100 or 200 years ago. Where would mercury come from? I had a notion it might have come from Bantry Hospital but a senior medic said the amount of mercury from thermometers was small. Mercury is a lethal poison. People are asking how they can deal with it. It is being dealt with by TNT, adhesives put on boats to stop them fouling up. It may only be 3%, but traces have been found.

The former Tánaiste, John Wilson, when he was Minister for the Marine, provided £100,000 to conduct hydrographic surveys of the inner harbour in Bantry and the contamination showed up. If, as is envisaged in this Bill, Cork Harbour takes over Bantry Harbour, we will have one or more member who may not have knowledge of the sea or be an elected member. To whom are they accountable? How can we get rid of the contamination? It is a very serious issue. Mercury appeared in Castletownbere and it cost nearly €2 million to get rid of it.

There are approximately 3 metres of silt and gravel in the inner harbour in Bantry that need to be dredged. Three or four inches of the contaminated area is skimmed off, rolled into cement balls or blocked and exported to a dump in Holland or Germany. It cannot be taken out and dumped because it would kill all the mussels and scallops, and even people as mercury is one of the most lethal of poisons. It is a very expensive process. There are science and experts involved, but the role local authority members played in highlighting these issues was important. The previous section mentioned An Bord Pleanála. Would it, in all its wisdom, have picked up on that? I do not think so.

I will not ramble on——

The existing composition of the boards, such as in Bantry, is not costing the Department one cent. We are a profit making organisation. This year the hope is to make a profit of approximately €250,000. There is a harbour master under the guidance of Cork and a full-time secretary. They are paid and spend money on various projects. Where will we end up after all this? It is something I would like the Minister of State to consider. Please do not try to undo what has been done.

If one takes the LEADER model, which is supported across Departments, and has been set up and will be in place for the next six years, many of the people involved are councillors or town councillors. They will not do a bad job. They are elected by the people, they are responsible to the people and have to face them in votes. There is no evidence anywhere that putting a county councillor, a town councillor or an urban councillor on boards might contaminate the boards. We have never had allegations of corruption in port authorities. I am concerned about these marriages. I have not come to the relevant section yet and I have a long story to tell on it. A marriage was also supposed to take place between the ports in Waterford, Rosslare and New Ross. The shotgun was fired but as far as I know they did not get married and they are still independent. We will have a great deal to say when we come to part of the Bill relevant to this matter.

Reducing the number on a board from 11 to eight might be of some merit if each board member in Bantry, Dingle, Fenit or Sligo received €10,000 per year and having 11 members meant payments of €110,000 along with ancillary costs. To my knowledge the 11 members of the Bantry board receive nothing apart from one small exception, and I am not being flippant in mentioning it, in that they are provided with drums of fine fresh drinking water at meetings. Apart from that they receive nothing, not even tea or biscuits. They cost nothing. I ask the Minister of State to think again and not to jump over the cliff and have a knee-jerk reaction because of corporate governance that works in one Department but not in another.

Town and county councillors are becoming more irrelevant. We cannot move this way or that. We are being shackled and must go in straight lines. However, my part of the world in west Cork has many corners and bends and mountains to climb. What is proposed here might be the norm in corporate governance and it might be suggested that it should be done everywhere. However, whoever will be here in 20 years time — I will not and I hope to be above and alongside Himself if he has a spare seat for me — will be undoing what we are doing and will be thinking the fellows representing the people at the start of the century went mad. They will be right.

I need the guidance of the Leas-Chathaoirleach as we are debating the wrong section. This section does not remove local authority members from the boards. It reduces the number of directors from 12 to eight. The other issue concerns section 11.

It is a horse of a different colour but we can move on.

Will the Minister of State reply to this section?

I will speak in general terms. Senator O'Donovan is correct as the matter arises in section 11. Sections 8 and 11 refer to State commercial port companies and not regional harbour boards and are concerned with reducing the number of board members from 12 to eight in port companies. The port companies are the only State commercial bodies with such statutory representation at present. The 1996 Act provides for port company boards to consist of 12 directors. The 2001 performance audit and the 2003 high-level review of State commercial ports recommended a reduction in the number of directors on port company boards. Having 12 members is considered excessive, even for the largest of port companies. In some of the smaller port companies, this number is more than the total number of employees.

Not in commercial ports surely.

We are discussing commercial ports and it is true in the case of some of the smaller ones.

Do some of the smaller ports have less than 12 employees?

Some of them do not have many more than that. Dublin, Waterford and Cork are large but there is a big difference between Dublin and New Ross. The general view behind the recommendations to decrease the number was that it would lead to a more focused board.

With regard to the other issue raised concerning local authority members, the two major reports on this matter, the statutory performance audit of port companies in 2001 and the 2003 high-level review of State commercial ports, concluded the practice of statutory local authority representation on port company boards should stop. The rationale for their continued representation is not as clear as it was prior to the 1996 Act when the boards had a different form. The boards had the same purpose then but the board members were from various walks of life.

Since the introduction of the 1996 Act and with the evolution of the commercial State port companies the industry has changed. It has opened up and we have seen a major organisational and cultural change within the ports. While substantial valuable inputs have been made, the rationale for local authority representation on the boards is not as compelling as it used to be. Local authorities do not nominate directors to the boards of other State companies such as the airports.

They were removed from them.

No, we are discussing local authority members and not working directors.

We are discussing user representatives.

No, we are discussing local authority members. There are no local authority members on Dublin Airport Authority, Cork Airport Authority or Shannon Airport Authority. The ports are the only commercial State bodies which have local authority members as of right. We are bringing the ports into line with other commercial State bodies. Local authorities do not nominate directors to the boards of other commercial State companies such as the airports.

To ensure smaller and more focused boards which are more commercial, it is proposed to repeal the provision allowing for the nomination or election of three local authority directors to each board. It is felt this will be a good measure and will help the port companies to be seen to operate on a fully commercial basis. The Minister for Transport, Deputy Noel Dempsey, has stated it is his intention to continue to appoint a local authority member from among his statutory appointees to port companies.

It is not definite.

It is a commitment he has given and that I am giving.

For the sake of clarity, I never mentioned local authority members. I have pointed out that section 8 envisages scrapping local authority directors and reducing board membership such that the user representative will be abolished. I stated I would oppose it because it was an assault on democracy. I accept the Minister of State has been listening to us speak on this amendment for almost 35 minutes and I understand how others may have made the point on local authority members and how the impression could be created that it is what we were discussing in principle, but it was not.

Section 8 amends the Harbours Act 1996 to provide that the articles of association of a port company shall state the number of directors shall not be more than eight. The current limit is 12. The case made for reducing membership can be made correctly again in section 11 as it deals with the same principle. The Minister of State said that 12 members is considered excessive. Who says 12 members is excessive? Was it board members, the chairman, the user representative, the people in the area or the commercial users of the port? If another element of the answer to this question exists, I do not know what it is. Did somebody in the Department decide that 12 is excessive? Does that person share the same mentality as the Einstein who thought that mussel farming should be obliterated in Cromane, the same Einstein who would not identify himself or herself when it was proved this was wrong and the ban was lifted? Who said it was excessive? For what reason do they believe 12 local authority members to be excessive? Did they take soundings from the commercial ports, the Minister or the port chairmen? What was the line of thinking behind section 8 reducing a port company's board from 12 to eight members? To clarify my earlier statement, I said it was the local authority directors and the user representatives. Removing them is an assault on local democracy.

Before I call on Senator Maurice Cummins, I wish to welcome Councillor Winston Bennett and his group from County Cavan to the Visitors Gallery.

I was chairman of the Waterford Harbour Commissioners when it had 26 representatives on its board. The Harbours Act 1996 reduced that membership to 12 members, correctly because it was to become a commercial body. Of the 12, three were local authority members, one each from Waterford City Council, Waterford County Council and Kilkenny County Council. The Minister of State claimed the Minister for Transport, Deputy Noel Dempsey, has given a commitment that he will appoint one member from a local authority to these commercial boards. It is not covered in the legislation, however. It states the Minister "may" and not "shall" appoint a local authority member.

While I might be somewhat parochial in referring to Waterford Port, if the Minister does appoint a local authority member to the port company's board, will he or she be from Waterford City Council, Waterford County Council or Kilkenny County Council? Local authority members are the best for attending port board meetings. Their contributions are as good as any of the other so-called experts on the board appointed by Ministers. Who better to represent the people than elected local representatives?

I do not know from where these high-powered reports from 2001 and 2003 come with the suggestion that the membership of boards should be reduced from 12 to eight members. The ones who will suffer in such a reduction will be local authority members. It is local authority members who ensure transparency and ask pertinent questions. They ask the awkward questions which need to be asked on many occasions on the harbour boards. That is the reason officials and so-called experts want local authority members removed.

It is a negation of democracy to exclude local authority members from various boards, as has happened in many other Bills going through this House. It must be the same crowd of experts compiling these reports for every Department recommending local authority members to be excluded from various boards. The workers' representatives on these boards will also be reduced. Who better to represent the workers than the actual workers and their local representatives? I would be very surprised if every Member on the Government side of the House will row in behind the Government Whip on this section. This is an attack on local representatives who have a vote in Seanad elections. It would be like turkeys voting for Christmas if Members voted against local authority members being represented on these boards.

There has been much debate about fairness recently with the medical cards for those over 70 and so on. There is no fairness in a section that will exclude local authority members. I am calling for fair play for local authority members. Will the Minister change the term "may" to "shall" for a start and return to having three local authority members on a port company's board?

This section proposes to reduce the number of directors in a port company from 12 to eight. If the Bantry Harbour Commissioners are to be scrapped and its control transferred to the Cork Port Authority, then contracting the number of directors to eight will only make matters worse. Behind the scenes, we have been told that the Bantry Harbour Commissioners would be fortunate to get one director on the Cork Port company board. That will create difficulties for Bantry, leaving the 11 harbour commissioners, eight men and three women, marooned on a rock in a very big ebbing tide with only one director in a diminished set-up on the Cork Port board. They should be expanding the number of directors instead. What happens when the Cork Port authority swallows up Kinsale, Baltimore and Youghal harbours?

Senator Ned O'Sullivan spoke on Second Stage about the amalgamation of Tralee and Fenit Harbour with Shannon-Foynes Port Company. That was a marriage of convenience. By and large there was prior consultation, a courtship so to speak, and the marriage took place. I hate this notion of shotgun weddings. Section 8 will also affect the provisions in section 11.

I apologise if I took Senator Michael McCarthy up wrongly but the debate did wander into section 11.

I did answer his question as to who recommended this. It was recommended in the 2001 performance audit of port companies and the 2003 high level review of State commercial ports.

Were there were local authority members on those boards making those recommendations?

There may not have been but the reports did feed into the 2005 ports policy document. There has been much consultation on these matters.

There have been 30 reports on Seanad reform, none of which has been implemented.

The Minister of State without interruption.

What I am trying to say is there has been a long process. I am only a couple of months in the Department but there has been a long process. This has been signalled for seven or eight years. It was recommended in various reports. It fed into the 2005 ports policy document.

It is not necessarily right.

This has come a long way and no one has cried halt. There has been consultation along the way and people have not stopped it. The Senators are raising an objection at the last minute.

The issue of port users was raised. The high level review believed such people could have a conflict of interest and it was recommended that they should not be members of the boards. I accept that before 1996, as Senator Cummins stated, people were on committees representing different interests. A port user, who might have direct knowledge and management and industry experience and could make a useful contribution, can still be made a board member but not of the port where he or she is a significant user.

That was one of the items that emerged. Removing local authority members from the boards was another issue, as was the worker director.

The ten ports are now focused commercial bodies and 12 people is too many to have on their boards. The recommendation of different professional people, which has been put into the ports policy document approved by Government in 2005, is that the size the boards should be reduced from 12 to eight.

We are not raising objections at the last minute. Who were the authors of that report? What is their expertise? How many local authorities were consulted? I presume if these reviews looked at all the issues, they would have taken on board all the points of local authority members throughout the country. I would be surprised if there were any support among local authority constituencies for this move.

The Minister of State is new to the Department, but I do not accept this is the last minute. This is Committee Stage of a Bill. We have already raised the issues on Second Stage and it is not the last minute.

Perhaps we should suggest that members of these board be elected rather than selected. Then we would see how many of the experts will want to go on to the board if they must put their names before the people, which we and local authority members must do every five years.

It is a dreadful attack on local authority members. It is an attack on the public who put members on the boards to represent their wishes. The quality of representative from local authorities is as good as if not better than most of those representatives selected, mainly by the Minister. Why should local authority members be singled out as the ones to go rather than others? I do not care what and how often the expert bodies report. Their reports are wrong.

Senator McCarthy suggested local authorities were not consulted by these so-called experts, and he is correct. Local authorities were not asked for an opinion. Why would these so-called experts ask? They might get a sensible response for which they would not be looking that they should have local authority membership on these boards?

Reports can be tilted any way one wants. They will get the answer they want to get. In this case, democracy certainly does not come into it. The membership of those consultative committees will have no interest in local authority members or, indeed, local authorities.

Perhaps this is a weasel question to the Minister of State and if he does not have an answer, he might respond to me on Report Stage. We should be allowed know the composition of the new eight-person boards. Will the trade union movement have a representative? The Minister may appoint one. What will be this new eight-person line-up? Has the Minister of State any idea who they will be?

I note we are excluding local authority members, which I think is a mistake. I already mentioned the Leader model set-up, which is a good one and which is the way to go. There are 17 members on that new set-up, including representatives from the islands, various organisations such as those of fishermen and farmers, the ICA and other groups. It is a good model and it will not cost the State a great deal.

We in this country are suffering. I am not saying what the Minister of State is doing is unique as it applies across other Departments. One cannot appoint a local authority member to any board. I think we are suffering a knock-on effect of what happened in the tribunals, especially the planning tribunal. With all due respect, I must put my hands up. There were problems in the greater Dublin area. The three Senators present represent different parts of Ireland and, thankfully, the same contamination did not apply to planning in every other local authority in Ireland. There is this feeling that mistakes were made — no doubt there were serious mistakes, people suffered and the inquiry is still ongoing — but we must not take a knee-jerk reaction to something very wrong which happened in a particular area over a particular period and which I believe will never happen again. Local authority members are suffering because of this.

The Minister of State mentioned the statutory audit of port companies, etc. There are probably at least four reports. The Bantry Bay Harbour Commissioners were set up by the Harbours Act 1976 and since then, there have been four or five reports, long before 2000, on the future of Bantry.

A matter puzzling me may not be related directly but I think it is linked to what has been said about local authority members. Why did the Port of Cork Company, which is in existence for a long time and to which I wish good luck, not come in to take over when there was in an awful mess in Bantry Bay? Bantry Bay was bogged down with three major oil pollution incidents. The second or third biggest oil pollution incident in the world happened in Bantry Bay in 1974 when millions of gallons were released. That is the reason the Bantry Bay Harbour Commissioners were set up by Government. There were problems in Bantry Bay and harbour and no one had come in to clean up the mess. Cork Port did not rush in to spend the €100 million, €200 million or whatever it cost. The Bantry Bay Harbour Commissioners were set up because we had to clean up our own mess and we were given the autonomy to do it. Now that things are going nicely in the harbour, the mess has been cleaned up — the ecological damage to the flora and fauna of the general area was such that it took months and years for some of it to recover — and there is no more pollution of the bay, it suits someone at a particular level to have the harbour under the control of Cork Port. To add to this, we are excluding local authority members from port company boards.

Whether we are dealing with section 8 or section 11, it is a horse of the same colour. While I would have to refrain from expressing some of my thoughts, I believe it is not wrong to have a town, borough or city councillor on one of these boards. The cost to the Exchequer is frivolous. I wonder at all this talk of transparency when what is really happening is the diminution of democracy. That is a serious worry. Perhaps the Minister will respond on those points. If there are three or four months until Report Stage, perhaps he will take that opportunity to review this issue.

There are a number of councillors in the Visitors Gallery from County Cavan, including Councillors Kettyle and Smith.

Thank God they have no ports.

I have listened to the Members' comments. The 2005 ports policy statement which accepted these recommendations on reducing the size of port boards and removing users and local authority members from those boards was widely circulated at the time. It was certainly sent to the port companies and was discussed by their boards, on which there are local authority members. They had a direct opportunity to respond. That was as recent as three years ago.

This change will not be implemented the day after the Bill is passed. Everybody will serve out their time, so to speak, at a minimum.

Will the Minister clarify his comments? He said that local authority members were there when these reports were being compiled. Did these consultants speak to local authorities about representation on these boards?

I do not have a specific answer about to whom exactly they talked. There were two reports previously and the last one I mentioned is the 2005 ports policy document issued by the Government. That was discussed at each port board and local authority members of those boards were present. The original reports were the 2001 performance audit report, which was produced by Jonathan Packer and Associates and the high level review in 2003 was carried out by consulting firm Grant Farrell Sparks——

Councillor Grant Farrell Sparks, no doubt.

Was he Brendan? That name has connotations with the Senator's party but I do not know whether——

And the previous consultant was also a councillor.

I am not sure if they were bright sparks.

——it was him or his cousin but Grant Farrell Sparks and Raymond Burke Consulting did the report.

Who is Raymond Burke?

Not the Senator, and not the other fellow either.

There was widespread consultation and discussion with a broad spectrum of people in the port sector at that time. The Senator asked about the composition of the eight new directors. The chief executive officer of each company will be a member of the board, there will be a worker director and six ministerial appointees, one of whom will be a local authority member.

With regard to some of the Senator's comments, I do not know if this view has come from tribunals or elsewhere but we appear to go through decades or periods of life where certain things are fashionable. All these professional reports noted that commercial ports are being treated differently from other State commercial companies. There are no local authority members on the boards of other commercial companies, semi-State bodies or the airport bodies. The ports are the only commercial State companies that have local authority members on their boards.

That is probably the reason they are doing so well.

The trend, therefore, has been to align them with what is deemed to be current best practice. We appear to be at the beginning of another wave of life now where we are questioning the value of agencies and considering amalgamating some of them. It may well be that in 20 years the public representative will again be king, all decisions will be made by Ministers and there will be public representatives on all boards. Perhaps these things are like clothes fashions and go around in circles. However, these recommendations have come through a series of consultancy reports and are now part of Government policy.

Where a number of local authorities have an interest in a particular port company, it is intended that the Minister will rotate the local authority directorship as appropriate. The mechanism by which that will be done has not been finalised but, in a case such as Waterford port, if historically there was a member from each authority, it would be reasonable to have a mechanism whereby that directorship would be rotated, provided the involvement of all three local authorities was equal. It might be different if one local authority had a peripheral involvement historically. However, if an authority had a recognised role, it would be common sense to try to rotate that directorship or at least give the authorities some recognition for their traditional role.

Question put.
The Committee divided: Tá, 29; Níl, 19.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Quinn, Feargal.
  • Ross, Shane.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Regan, Eugene.
  • Ryan, Brendan.
  • White, Alex.
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Maurice Cummins and Michael McCarthy.
Question declared carried.
SECTION 9.

I move amendment No. 2:

In page 10, line 4, after "the" where it secondly occurs to insert "written".

This amendment seeks to insert the word "written" before the word "consent". It is a reasonable request and I hope the Minister of State will accept the amendment.

I second the amendment.

On section 9——

We are on amendment No. 2, section 9.

Yes, on the power to borrow and written consent. Am I on the wrong section?

It is amendment No. 2, section 9.

Page 10, line 4.

Is that in regard to the power to borrow? I will pass on that one.

Does the Senator wish to speak on the section?

In some respects the amendment might seem like common sense but it is not normal wording. The wording as drafted is the standard drafting style and if it were changed it would be at variance with other similar references throughout the original principal Act. Generally, that is the normal language used in legislation that goes through the Parliamentary Counsel's office and therefore to insert the word "written" would be superfluous. All approvals of that kind are done in written form. In matters such as that described in the Act, the implication is that such consent would be given only in written form. Such is the nature of the interaction between relevant Departments. That is the way things happen. Two Ministers or Departments would not just approve something verbally. All business is done like that and that is the standard language in legislation.

We realise that most of it is done in writing but we are proposing the insertion to emphasise that it should be done. It does not make any difference whether it has been done previously in other Bills. It is a fair request to ask the Minister to insert the term "written consent". If it is what happens, why not insert it?

To be fair, that seems to be common sense in one respect but this is the consistent way that wording is used. If "written" is inserted once, some court of law might rule that a line in a particular Bill refers to "written" while in another Bill it does not. There is a standard way for the Parliamentary Counsel to draft that. This is the normal language used. The word "written" is not normally included. From a common sense point of view, I agree with the Senator but it could lead to confusion because it is not the normal language and, as such, it is superfluous. I accept the Senator's point but I am told it could lead to problems from the point of view of the Parliamentary Counsel.

The question of interpretation has interested me since my time in the legal profession studying law many years ago and it sometimes baffles me, whether it is written or otherwise. I understand Senator Cummins's point and the directions of the Minister of State. There is an old Latin maxim, inclusio unius, exclusio alterius- by including one we exclude the other. It would be a belt and braces measure if we accepted the wording in Senator Cummins’s amendment. It is not offensive and it would support the Latin maxim that goes back to the time before Caesar.

Senator O'Donovan is blinding me with these Latinisms.

It is difficult to blind the Minister.

Faced with that sort of knowledge, perhaps I will refer back to the Senator on Report Stage.

Is amendment No. 2 being pressed?

No. The Minister of State will come back to the issue on Report Stage. I withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 9 stand part of the Bill."

I will be brief. On the power of borrowing and providing more flexibility to port companies, we are talking about the big commercial port companies. What is the merit of this section? Does it envisage that port companies would borrow, possibly beyond what they can afford to repay, particularly in these difficult times of contracting economies, recessions etc.? For example, if Shannon Foynes Port Company, Waterford, Cork and possibly Dublin ports have to borrow, am I correct in saying they have to get prior consent or are those big corporate ports so strong that they are a separate legal entity and do not have to get consent, be it written or verbal, or go through any procedures? I am somewhat concerned in that regard.

I realise I am looking ahead somewhat but section 18 envisages the demise of Bantry port. When I was a member of Bantry port there was a proposal to borrow some money in a plan that was presented to the Department. I believe it was approved, even though the project did not go ahead. Does the same apply in this case? In other words, do the bigger ports, such as Cork, that are doing very well and have huge commercial plans to develop and expand have to get prior consent from the Minister at every turn or only when it involves major borrowings? If Cork port wanted to borrow €1 billion to expand its proposed development — the figure would be much larger in the case of Dublin port — would it be necessary for it to get written consent or is it envisaged that the existing arrangement would be continued? Is this a new proposal to the effect that the Department is giving more flexibility? I wonder is it giving more or less flexibility. The Minister of State might expand on that question, if not today, on Report Stage.

I welcome the provisions in section 9. Greater flexibility must be provided to port companies to borrow funds to finance projects. This is an important section and its provisions would be welcomed by the port companies as it would give them greater flexibility where borrowings and investments are concerned. I presume they would need ministerial consent for larger amounts than those mentioned in the section, but in general I welcome the greater flexibility being given to the commercial companies.

This proposal will amend section 23 of the original 1996 Act and it allows for greater flexibility in respect of the amount of money port companies may borrow. To answer the question, the consent of the Minister for Finance and the Minister for Transport will still be required for any borrowings undertaken by port companies but the Bill allows port companies to borrow up to the value of €200 million or 50% of the value of the company's fixed assets, depending on which figure is the greater. The Department is aware that a number of port companies have proposals regarding the provision of significant additional capacity at their ports. The development and successful completion of some projects may require significant borrowings, which will be the subject of ministerial approval, on the part of these companies.

The Ports Policy Statement 2005 makes clear that the provision of adequate and efficient capacity into the future is a crucial strategic objective of the Government. It notes that significant shortfalls in port infrastructure could result in serious damage to the economy. However, it is considered crucial that some flexibility be provided in the governing legislation in order to facilitate, as far as is possible, the timely provision of sea port capacity. Some port companies have borrowed a greater percentage, relative to their fixed assets, than others. The section provides increased limits and introduces principles and policies which must be considered when those limits are being increased.

Question put and agreed to.
NEW SECTION.
Government amendment No. 3:
In page 10, before section 10, to insert the following new section:
"10.—Section 28 of the Principal Act is amended—
(a) in subsection (1), with effect from 6 months after the passing of this Act, by substituting “not later than 4 months after the end of each accounting year of the company” for “not later than 6 months after the end of each accounting year of the company”, and
(b) in subsection (4)—
(i) with effect from 6 months after the passing of this Act, by substituting "not later than 4 months after the end of each accounting year of the company" for "not later than 6 months after the end of each accounting year of the company", and
(ii) by substituting "adhered to," for "adhered to." in paragraph (e) and by inserting the following after that paragraph:
"(f) a statement—
(i) of the average number of employees that are expected to be employed during the accounting year under contracts of service following that to which the accounts relate, or
(ii) that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service during the accounting year following that to which the accounts relate,
as determined in accordance with section 30(1)(a)(ii).”.”.

The Department wishes to bring the legislative provision for submitting companies' annual reports in line with the guidelines set out in the Government's code of practice for the governance of State bodies. The amendment came about on foot of a recommendation contained in a draft report prepared by the Department's internal audit section. Ports are currently obliged to submit their annual reports, etc., six months after the end of each accounting period. The amendment reduces the time limit in this regard to four months.

I welcome the amendment. The reduction to four months will be beneficial to everyone in that reports and financial accounts will become available at an earlier date.

There is no doubt there is huge merit in any commercial port company being obliged to submit a report to the Minister within a reasonable period. It is envisaged that, if the legislation is passed, there will be a major contraction in the number of commercial ports to perhaps six or seven. Will the reports to which the amendment refers be laid before both Houses for scrutiny and will they be made available to the relevant all-party Oireachtas committee? Will they be made available to other Ministers or Departments?

I am interested in keeping an eagle eye on developments at a number of ports, particularly because seafaring and fishing are in my blood. I have no difficulty with the amendment. The four-month period within which port companies will be obliged to report to the Minister is reasonable. Will matters stop there? The Minister probably has the power to analyse or react to such reports. However, Members of the Dáil and Seanad may not have the opportunity, through the all-party Oireachtas committee dealing with the relevant Department, to scrutinise and consider them. Perhaps the Minister of State will clarify the position as to what is intended.

The amendment inserts a new subsection under which a company's annual report to the Minister shall include a statement regarding employee numbers. This is designed to reflect the changes introduced in section 11 in respect of the calculation of the number of employees in each port company for the purposes of determining the election of worker directors. That is a new requirement and the relevant information will have to be included in annual reports, which will have to be submitted within four rather than six months.

Annual reports are presented to the Minister. The custom and practice is that they are also published by each port company. I understand that these reports are probably available in the Oireachtas Library.

Are they published in the Iris Oifigiúil?

They are probably listed as having been published.

The reports of the companies are available in the Oireachtas Library.

The relevant Oireachtas committee can consider such reports. However, it is not the case that the companies send them to the Oireachtas Library out of the goodness of their hearts; it is a requirement that they must be laid before the Houses. I understand the committee is considering examining these reports and inviting representatives of the different boards to come before it to discuss them. The requirement to provide information regarding the number of employees of a port company is designed to avoid the type of confusion that arose in the past in respect of whether such a company had 29 or 31 employees on the relevant due date.

Will it be the number of employees directly employed by a port company? Some companies may have subsidiaries or there may be individuals, such as stevedores or whomever, involved in contract work. Will the latter be included in the figures or will it just be direct employees of a port company? This issue is particularly relevant in the context of voting strength and representation.

Senator Cummins touched on an extremely important issue. If he is not in a position to do so now, perhaps the Minister of State will indicate on Report Stage whether part-time employees will be included in this regard. I am aware from what happens in Kinsale that the work of stevedores is extremely seasonal in nature. Two or three ships might enter the port in the same week and people might be obliged to work day and night to unload their cargoes. However, there might be very little activity for three or four weeks. I know Kinsale is not one of the big commercial ports. Does the measure relate to full-time employees? For a number of reasons port activities can be seasonal. Some people who are employed as ship pilots in Bantry Bay work on-call. They might have four ships one week and then three weeks without a ship for whatever reason. Adverse weather conditions can lead to the virtual closure of ports for some time.

As it is 5 p.m. we must adjourn the debate.

Progress reported; Committee to sit again.