I move amendment No. 10:
In page 14, subsection (1) (h) (ii) (IV), lines 40 and 41, to delete "communication" and substitute "communications".
This is a technical amendment the purpose of which is to rectify a clerical error.
SECTION 14.
Section 14 (1) (d) states:
(d) to such extent as the company considers appropriate, to operate and manage terminal services at State aerodromes and licensed aerodromes and to regulate the provision, operation and management of terminal services at State aerodromes and at licensed aerodromes,
That appears to me to be somewhat in conflict with what the Minister said earlier when he suggested, if I understood him correctly, that licensed aerodromes would provide their own services.
No, I did not say that.
Is it the case that there are licensed aerodromes other than State aerodromes? It seems, from a later provision of the Bill, that one requires a licence for every place at which one wants to land an aircraft. If I had a few acres of reasonably flat land beside my house and wanted to land an aircraft there it appears I would require a licence to do so. In cases where there are licensed aerodromes will this Authority supply all air traffic control services for aircraft wishing to use that licensed aerodrome?
I want to be clear on this, Deputy Dukes asked whether the Authority will be providing air traffic controlling services for all aerodromes. What I said was that private aerodromes do and may provide their own but that, if the Authority was asked to provide them, of course, it could and would.
State aerodromes are not licensed; private aerodromes are licensed, the company provides services at State aerodromes and, of course, can provide services for and at private aerodromes.
I thank the Minister for that information but I want to be sure I understand him. The Minister said that this Authority may provide services at licensed aerodromes but the licensed aerodromes can themselves provide services. What services can they provide? Is the Minister telling me that licensed aerodromes — because I understand this is what he means — if they wish to do so and are equipped to do so, can provide terminal air traffic control services for aircraft coming into their area? Clearly they cannot provide en route air traffic control services. But if one has a licensed aerodrome that is not equipped to provide terminal air traffic control services, one may ask this Authority to provide those services and that Authority may do so. Is it a matter of the Authority "may" do so, "must" do so, "can" do so or "will" do so? Will the Minister please clarify that.
First, there has to be a certain level of traffic before full terminal services would be provided. Second, as matters stand some of the regional airports have their own facilities, they provide their own air traffic control and employ people privately to do so. If requested by the Authority or ANSO to provide those services then ANSO or the Authority would be pleased to do so, of course, for requisite charges.
Will they provide terminal air traffic control services?
Yes.
I want to be clear on this as it is an important point. Galway Regional Airport provides air traffic control services. The services there, as I understand it, is a terminal control service; a service for aircraft taking off until they get into the recognised airlane when they come under the control of the national air traffic control service, or for the aircraft that leaves the airlane to make its approach to land at the airport. They are not in any sense providing an en-route service to aircraft using the aerodrome.
That is correct. Furthermore, Galway airport employs its own two air traffic controllers in a private capacity.
I am acquainted with it. In fact I know they have very sophisticated equipment there.
It is excellent.
To prevent birds strike on aircrafts the air traffic controller keeps a shotgun beside the control console.
The Minister is saying that if the operators of Galway aerodrome wished to do so, they could ask this Authority to provide that service. In that case will the Authority be obliged to provide it, or is it simply an option that the Authority will have.
In certain circumstances, of course, the Authority would be obliged to provide air traffic control at any airport. In virtually most circumstances the Authority would be delighted to provide services at any airport for the normal charges. Section 14 (1) (d) provides:
(d) to such extent as the company considers appropriate, to operate and manage terminal services at State aerodromes and licensed aerodromes and to regulate the provision, . . .
Unless there was a certain level of traffic one would not provide a full complement of services there.
That was the reason for my question. That is not clear. I will take Galway as an example for the sole reason that I am familiar with it. If the operators of Galway aerodrome decided they no longer wanted to provide air traffic control services, for whatever reason — perhaps it was not economic, or whatever — they could apply to the new Authority to provide air traffic control services. I want to know would the Authority have to provide those services? It seems to me the Minister's answer is that the Authority is allowed to provide those services if it feels it is worth-while. But, if the Authority decided there was not a level of traffic there that would justify it getting involved, it could say no.
That is correct.
Then we could find circumstances prevailing in which we might have a regional airport left without air traffic control services.
There are two sets of circumstances really. One, the Authority would have the right to say "no" because the volume of traffic was not sufficient to provide services there. Second, in emergency circumstances the Authority would be obliged to provide services there for particular reasons. Third, where there are airport facilities, regional or otherwise, services would be available. There are private people with the competence and professionalism, ex-ANSO and ex-other organisations, available to provide these services. I do not envisage any circumstances in which an airport would not have the technical competence or facility to provide the services necessary to land aircraft or get them away.
While all of this is very genial and friendly, as far as I can see there is no provision in this Bill that ensures that a licensed aerodrome will always have air traffic control facilities. There is nothing constraining in this Bill. It allows the Authority to do these things, it does not oblige it. To my knowledge, it is not a condition of a licence for the operation of an aerodrome that one provides an air traffic control system. If it were, there would not be a problem.
To be of assistance to Deputy Dukes and the committee, I wish to state that the Authority will be in a position, and will have the legal competence, to make regulations whereby an airport could not operate without proper air traffic control.
That is provided for in section 14 (1) (h) (V)?
That is provided for in section 60 (1) (b) (i) which states:
for the licensing and regulation of aerodromes (other than State aerodromes), and for the regulation of aeronautical safety standards at State aerodromes,
It means that if somebody applies for a licence for an aerodrome, it is within the competence of this Authority to stipulate as a condition of the licence, that an air traffic control service must be provided. However, if in view of the kind of business that the aerodrome thinks it will be doing, it feels it is not necessary to require an air traffic control service, it would not put that stipulation in the licence.
That is not unusual at airports or ports with regard to State services. Let us take the example of the customs service. That service can have a permanent cadre of staff based at ports or airports if there is a sufficient volume of business to warrant their presence. If, however, there is not they can have an ad hoc arrangement, a temporary arrangement, or they can come at any time——
No, the parallel does not hold.
It may not have the same safety connotations but there is still a State service.
If one has an aerodrome that has a licence to operate as an aerodrome and the licence does not stipulate the provision of an air traffic control service, then one cannot just telephone the Authority and say: "We have an aeroplane coming in, please send over an air traffic controller". It means that once one leaves the airway, once one departs from the flight path you have laid down and is endeavouring to land at the airport that person is on his or her own.
To take it a step further, and to clarify the matter again I should say the Authority will have power under this legislation to impose particular regulations on anybody who wishes to operate an aerodrome. Taking it a step further again, where there is not sufficient traffic, very little traffic, and very few safety risks of any kind, the Authority can allow the airport to operate on the competence of the pilots manning the 'planes to land in an area where there is very little risk of other aviation obstacles.
Amendment agreed to.
I move amendment No. 11:
In page 15, subsection (1) (j) (iii), lines 11 and 12, to delete "becomes a party after the commencement of this section" and substitute "is a party.".
This is a minor amendment. Under this subsection one of the functions of the company is to give effect to the purpose of the Euro-control Convention, the Joint Aviation Authority's arrangements and other international aviation agreements to which Ireland might accede in the future. However, there are other existing international agreements which Ireland has signed and which the Authority should implement. One example is the Multilateral Agreement relating to certificates of airworthiness for imported aircraft, signed in Paris on 22 April 1960. It is possible that other existing agreements may have implications for civil aviation. Therefore, it has been decided to amend this section to ensure that the company will be required to implement any relevant international aviation agreements to which Ireland is a party.
Amendment agreed to.
I move amendment No. 12:
In page 16, subsection (6), line 12, to delete "at" and substitute "in".
This is a very technical amendment whose purpose is to rectify a clerical error.
Amendment agreed to.
Section 14, as amended, agreed to.
NEW SECTION.
I move amendment No. 13:
In page 16, before section 15, to insert the following new section:
"15.—(1) The functions of the company shall, at all times, be carried out subject to review and approval by the Minister.
(2) In circumstances where, in the opinion of the Minister, the performance of any function by the company would, in view of the performance by it of any other function or functions lead to a conflict of intererst which might affect aviation safety, any one or more of those functions shall be carried out under the direct control of the Minister.".
Deputy Noonan raised a number of issues on Second Stage that have to do with the two functions that are being given to this Authority. There is the function of air traffic control and of ensuring safety, including the safety of air traffic control. At present, both of these functions are carried out directly under the authority of the Minister. If any problems arise the Minister has direct responsibility and accountability to the Oireachtas in the matter. But now we are proposing to set up a new semi-State body which will have these two functions, but clearly where there is not the same direct responsibility or the same direct accountability. I am not making any accusations of incompetence, bad will or anything like that against people; I am looking at where the functions lie, where accountability lies and how we deal with issues that span those two responsibilities.
In the present case, where there are issues that span the two, there is still a clear line of responsibility and accountability through the Minister. But, with this Authority, there would not be, because we shall have the one authority responsible for these two functions. In some circumstances the authority in charge of the safety of air traffic control could be dealing with, have to report on or investigate the manner in which air traffic control services were being provided. In such circumstances there could be a potential conflict, when the one authority, being responsible for both, would end up being the judge and jury in its own cause. That seems to us not to be desirable, again I reiterate not because we feel there are necessarily any deficiencies in the way jobs will be undertaken or in the competence of the people doing the jobs, but we believe it is undesirable because there should be a clear separation of the two functions, a clear line of responsibility for each. We want to insert this new section to make it clear, first, that the operations of the company are subject, as the proposed subsection (1) states, to review and approval by the Minister and, second, where there is a conflict of interest between the two functions to be carried out that the Minister would assume direct responsibility for either one or the other of those functions in order to ensure that there is a clear line of responsibility and accountability. It seems to us to be a matter of some importance for the proper delivery of the two services and for the maintenance of the kind of confidence in those two functions we have.
Both of the subsections in the amendment, if accepted, would reverse the whole purpose of the Bill, by making the Minister responsible for approving the carrying out of the company's functions. Consequently, there would be no need to have the company; there would be no change. The concern of the second subsection about possible conflicts of interest and safety matters between the various functions of the company can be adequately dealt with under provisions in the Bill. If adopted, the amendment in effect, would return one or other of the regulatory or operational functions to direct ministerial control and accountability, the antithesis of the Bill. Consequently, I cannot accept this amendment.
Is Deputy Dukes pressing the amendment?
Yes, but I am not at all impressed by the Minister's dismissal of the amendment as being in direct contradiction to the purposes of the Bill. If that is true — and the Minister has said nothing to deal with the reasons for this amendment having been tabled — then perhaps we should not have the Bill at all, if he has not sorted out this problem. We do not want to put all the day-to-day operations of this company back into the ambit of the Minister's responsibility. But the Minister has done nothing to recognise the fact that there are potential conflicts of interest, except in what seemed to me to be a very revealing sentence when he said that if there are problems here, they could be dealt with under other provisions of the Bill. I do not know what those provisions are. It seems what the Minister is making it up as he goes along in saying that.
If the Minister means that there is some provision in this Bill that regulates or deals with the situation in the event that there is a conflict between these two functions, would he please tell me, and, if there is not, would he recognise that this is a problem and suggest what he might do about it?
There is a difficulty here which perhaps the amendment does not meet very well in the sense that it is not terribly clear. If I may say so with respect, the way Deputy Dukes explained it, does not make it any clearer. The fundamental problem and the potential conflict of interest is, that this company will in some respects be acting as a regulatory agency and as an executive agency. Any time the same body in whatever field or country purports to act as both a regulatory agency and an executive or administrative agency there are potential problems and other countries recognise that.
If we were to be logical there should be two bodies, a purely regulatory one and purely executive one. It is because we tend to suffer here from a proliferation of agencies my instinct is to minimise the number of such agencies. I sought to do that via Culliton without any success and I have tried to do it at other times in other ways with more success.
The nub of the problem is that we have a regulatory agency, regulating an activity in respect of which it is also an executive agency. This amendment does not grasp the complexity of the problem. The reply to that point may be that that position existed in the past because the Minister had responsibility for both areas. At least the Minister is accountable in a way in which a semi-State company set up in this way will not be. Representatives of the company cannot be brought into the Dáil and asked questions. Some inquiry into the affairs of the company may be possible through a committtee at long range and such an inquiry may take some time, but it is not the same as democratic accountability. Therefore, if there is a conflict of interest, I would prefer if responsibility resided with the Minister rather than with a company.
While that argument is strong and valid it does not invalidate the setting up of this company. It is a question of whether the regulatory activity can be carried on independently of the company and I consider the proposal in the amendment that this function might revert to the Minister in such a circumstance is valid. The point deserves much more consideration than the Minister of State gave it because if a major accident occurred there would be recriminations on this point, particularly if the perceived cause of the accident were an air traffic control mistake as was allegedly the case in one or two recent serious accidents abroad.
If this amendment is accepted, the Minister will continue to be responsible for the day-to-day functions of the company and that would reverse the purpose of the Bill. The Bill provides ample opportunity to the Minister to review the work of the company, for example, through reporting provisions under section 30 on the company's annual accounts, section 31 on its annual report and section 32 on the technical and safety audit. Coupled with these provisions, the Minister is empowered under section 7 to issue directions to the company should the need arise.
The Minister will still be independently responsible for setting out the format for accident investigations and that is clearly enshrined in the Bill. I clarified this in the Dáil on Second Stage and it takes account of Deputy O'Malley's point.
In opening the Second Stage debate in the Dáil I referred to the possible conflict of interests between the functions of the company. However, I pointed out that many foreign administrations also combine these functions within the one organisation, the CAA in the United Kingdom, the FAA in the United States, Canada and other places. The company's safety standards will be those set internationally, mainly by the International Civil Aviation Organisation. The potential for conflict is very small, nevertheless the possibility of it arising is recognised and for that reason technical and safety audits of the company by the Minister at any time are specifically provided. I am satisfied the provisions I mentioned, together with secton 36, which deals with possible conflict between the board and management on safety issues, will further minimise, if not eliminate, functional conflicts of interest as foreseen in the proposed amendment.
I am not happy with that.
I have gone a long way to make the Deputy happy.
I am delighted, that by the use of slightly different words, Deputy O'Malley has finally come to the same conclusion as I. This amendment sets out what we want to do and I am pleased he supported it.
I am worried about the Minister's final point. He recognises that there is potential for conflicts of interest. He says there is not a wide-range of potential for conflict and for that reason the Bill provides for technical and safety audits. That is a very good idea but who will carry out those audits? The Minister has no other experts to call in other than the people involved in the Authority being set up under this Bill. Therefore, it is likely that the Authority will provide the people to carry out the safety audit of the Authority and that would provide only one line of responsibility.
There are two separate functions to be carried out. Whether Deputy O'Malley calls them regulatory and executive or I call them air traffic control and safety it is the same distinction. They are two separate functions which in some circumstances can be conflicting. An accident or loss of life need not occur to produce such a conflict. If there is an increase in the volume of air traffic, which is doubtful in the short term, though probable in the long term, the modern phenomenon of air misses will occur, an inquiry will have to be carried out and some conclusions drawn for reconciling the need for air traffic control that facilitates a greater flow of traffic with a corresponding need to ensure safety.
If one organisation has this responsibility a conflict of interest will arise and this Bill does not deal satisfactory with resolving that conflict. The Minister has treated this somewhat lightly. Would the Minister be prepared to give this further consideration between now and Report Stage with a view to resolving it. It may be that fundamentally and to observe the proper administrative separation and elegance about which Deputy O'Malley spoke earlier, two bodies would be required but I am not sure that is necessarily the case.
The Minister has recognised there are some circumstances where this conflict can arise. I would not claim that this amendment has the fine perfect elegance and expression that gives absolute limpidity. It may be that it is not as specific in defining those circumstances as it might be. I would be happy to see a formula of words that would make it clearer. The intent of the amendment is to provide that in circumstances where such conflict arises a role is restored to the Minister. It is only in this way that the required full responsibility and accountability can be assured.
I would be pleased if this matter could be phrased more clearly than it is in this amendment. I would also be pleased if the Minister would consider this matter between now and Report Stage.
I have listened with interest to what Deputies Dukes and O'Malley said. If Deputy Dukes reflects on my speech on Second Stage he will recall that I pointed out these matters, outlined the position in great detail and gave information of available alternative options utilised elsewhere. Some Members took those points up as a result. The Bill takes account of the position, it provides for any conflict of interests that might arise. Certain responsibilities which the Minister heretofore had been retained by him to ensure no conflict of interest will arise.
There is a large amount of professional expertise in international aviation pertaining to accident investigations and aviation matters. If an accident occurred independent professional experts would have to be recruited immediately to investigate it. However, the Minister would also have responsibility in this area, he would be empowered to direct the Authority to co-operate fully, both effectively, professionally and administratively with the experts appointed to carry out the independent investigation. I am satisfied that any potential conflict of interest is provided for and that the relevant responsibilities are being retained by the Minister. However, I do not want there to be any doubt about the position and if Deputy Dukes is prepared to withdraw the amendment I will reconsider the position.
Amendment, by leave, withdrawn.