I welcome the Minister and Members to today's meeting. Tá fáilte romhat, a Aire agus tá fáilte roimh na Comhaltaí atá anseo inniú. I also welcome the Department officials.
Minister for Arts, Heritage, Gaeltacht and the Islands (Powers and Functions) Bill, 1997: Committee Stage.
Section 1 agreed to.
SECTION 2.
Amendments Nos. 1 and 11 are related and may be discussed together by agreement.
Perhaps the Chairman would wish to discuss amendment No. 4 with amendment No. 1 as the argument in relation to it will be substantially the same as that in relation to No. 1.
Is that agreed? Agreed.
I move amendment No. 1:
In page 3, subsection (1), lines 32 and 33, to delete ", deleting an inland waterway from, or amending an entry in respect of an inland waterway in,".
Under section 2 the Minister may, by order, amend the Schedule to the Act in order to add or delete an inland waterway or to amend an entry in respect of an inland waterway. The Schedule contains a list of the inland waterways which are covered by the Bill and which are being put in the Minister's care.
Section 5 contains a provision whereby the Minister may acquire, create, hold, maintain and dispose of land, including an inland waterway, and interests or rights over land, intellectual property rights and so on. I can see why the Minister would want to have the power, by order, to amend the Schedule and to allow for the addition of inland waterways if there were to be an addition in the areas of responsibility the Minister holds in relation to them. I can also see why the Minister would wish to have the power to create and hold land and inland waterways in the State's trust. However, I am baffled as to why the Minister is seeking the power to dispose of inland waterways and consequently why she requires a provision in section 2 of the Bill to give her the power to delete an inland waterway from the Schedule.
The inland waterways belong to the people of the country. This Bill concerns the functions of a particular Department and confers certain functions on it. It seeks to transfer responsibility for inland waterways to the Minister and the Department. No provision should be inserted in this Bill which would allow the Minister to dispose of the property and heritage of the people of this country, a heritage which includes our inland waterways. I do not understand why such a provision is contained in the Bill or why the Minister is seeking the power to sell off or dispose of our inland waterways and amend the Schedule to the Bill.
The list of inland waterways contained in the Schedule includes the Grand Canal, the Royal Canal, the Shannon navigation, Ballinamore and Ballyconnell navigation, the Erne and Lough Oughter navigation and so on. Why would the Minister wish to have the power, by order, to dispose of any of these? She would not have to refer to the Dáil on the matter other than to lay the order before the House. The annulling procedure, although it may be great in theory, is not, as we know, a very useful procedure in practice. An order is simply laid before the House and unless the House passes a motion within 21 days annulling it, the order stands. The Minister would, under this Bill, have the power to sell the Grand or Royal Canals if she so wished and could simply delete them from the Schedule by way of an order. That is a pretty awesome power to confer on the Minister and I do not agree that the House should give her that power.
I would like some explanation as to the rationale for including this provision. My amendment seeks to delete this provision from the Bill. If, at some future stage - although I hope the situation will never arise - Ministers wish to sell off any of our inland waterways, they should be required to bring specific legislation before the House. The power to enable the Minister to carry out this function by order should not be built into this legislation.
The amendment in my name is identical to that tabled by Deputy Gilmore. I wish to add a number of points to place this matter in context.
I secured approval for this Bill, in draft form, during the lifetime of the previous Government. However, there are changes in the Bill before us when compared to the earlier draft. It would be useful to hear the reasoning behind those changes.
There is a fundamental difference in legislation, amending legislation and ministerial orders between the right to add and the power to delete. Deputy Gilmore highlighted an important point in this regard. Amendment No. 1 retains the Minister's power to extend the range of canals covered by the Bill. In the context of the power to add, this means that, in the event of public agitation in favour of taking over responsibility for something, the Minister could do so openly. Successive Governments have the right to change legislation but the alteration in this Bill is dangerous because the same transparency is not present with regard to the Minister of the day wanting to delete something. There is also a difficulty with the process by which this would be achieved.
When I held responsibility for ministerial orders, I recall receiving strong lectures on transparency. However, there is nothing in the Bill to indicate the reasons for making changes would be made explicit. For example, Deputy Gilmore stated that changes could be made by means of an order and unless that order is contested it automatically stands without the Minister's reasoning being known. That is extraordinary.
My second point relates to amendment No. 4, in Deputy Gilmore's name, which advocates the deletion of the term "and dispose of". The section to which the amendment relates seems to indicate a potential power which, if ever used, should be justified in the Dáil.
Amendment No. 11 is also being discussed with amendments Nos. 1 and 4 and it relates to the Schedule, the text of which is different from that for which I secured approval as Minister for Arts, Culture and the Gaeltacht. The three bodies of water listed in the amendment - the Tralee Ship Canal, the Eglington Canal and Claddagh Basin and the Boyne Navigation - were deleted from the Bill as originally drafted. I would like to know why they were singled out for deletion. This is illustrative of our net argument in respect of amendment No. 1 because no one wants anyone other than the Minister to have power to act. That is important in respect of the power to add. Even if the Minister has no such intentions she will no doubt provide assurances to Members in respect of the disposals, etc.
The section is open to the interpretation to which I referred. I strongly urge her to accept the proposed amendments.
I am bemused by Deputy Gilmore's surprise that the Minister should have the power to dispose of the Grand and Royal Canals, given that both were originally constructed with the use of private funds. If the Minister is reserving the power to which the Deputies referred, she is merely retaining the right to use a power which has always existed. It must be remembered that any contemplated disposals must come before the Dáil and, as a result, I find the Opposition's viewpoint bewildering.
On a point of information, will there be an opportunity for Members to contribute further following the Minister's reply?
Yes.
In taking amendments Nos. 1, 4 and 11 together it must be stated that this is not the first occasion on which anxieties have been expressed. Anyone who was present for or consulted the proceedings on Second Stage will be aware that Deputy Gilmore in particular expounded on these concerns at length. While I accept Deputies' concerns, I cannot accept any of the proposed amendments for a number of reasons.
It is important to place on record that I am of like mind with the Deputies opposite in respect of the disposal of State property. There is no question of a philosophy of wishing to sell off any property already owned by the State. That is not the reasoning behind section 2. Neither I, nor the party to which I belong, believe in such a philosophy. Section 2 contains enabling powers and provisions and Deputy Higgins will understand the philosophy behind these amendments. He is perfectly correct in stating that the Bill is designed to give the Minister power to act.
Amendment No. 1 seeks to remove the Minister's power to delete an inland waterway from, or amend an entry in respect of an inland waterway in, the Schedule. The provision to which the amendment relates is purely an enabling one. The purpose of the Bill is to give the Minister the necessary powers to carry out his or her functions. It is important to emphasise and underline that the power is not given directly to the Minister of the day. Use of that power must be approved by the Oireachtas and may be annulled by resolution of either House. This should allay Deputies' concerns. It is not a question of the Minister alone having this power to use because it is subject to approval by the Houses. If I understood him correctly, Deputy Higgins stated that this question must be contested at that stage. In that event, I am sure Members could make their concerns known in both Houses. I would be concerned if this power were merely a matter for the Minister to decide upon. I could not agree with such a provision and, as already stated, the approval of the Dáil and Seanad are required.
I cannot accept amendment No. 11 because I do not believe it appropriate at this time. Perhaps it would be of use to Members if I explain why the projects listed in the amendment cannot be inserted in the Bill at this stage. For example, the Tralee Ship Canal is owned by Kerry County Council and Tralee Urban District Council. It is believed that the management of this project should be left to those in the local area, namely, Tralee UDC. If the project was included in the Schedule and responsibility for managing it was taken on by Tralee UDC, amending legislation would have to be introduced in the near future to delete that provision from the Schedule.
I am sure Deputy Higgins is aware the Eglinton Canal is owned by the Corrib Navigation Trustees. There has been some difficulty in obtaining a legal definition of this waterway. When there is further clarification it may be added to the Schedule. It is important that, as proposed in this amendment, there is further clarification on the legal position.
Due to the prohibitive costs involved in reopening the Boyne Navigation, it is not feasible to consider carrying out any work on this stretch of water in the foreseeable future. Therefore, it would be inappropriate to include this waterway in the Schedule.
I understand the anxiety of the Deputies regarding amendment No. 4. I wish to reiterate the reasoning behind the part of the Bill which deals with disposal. While I indicated it is not my intention to dispose of an inland waterway, it is important to allow flexibility in the Bill. If it should prove necessary for the development of a waterway to divert a waterway channel involving the acquisition of alternative land, the original, abandoned stretch of waterway should be capable of being disposed of. The most obvious example is the Ulster Canal where the Department may have to acquire further land. The original abandoned stretch of waterway could then be disposed of as it would no longer be of use. It is in that context there is flexibility in the Bill. I cannot accept amendment No. 4 as it is not appropriate in circumstances which could come to fruition depending on the completion of the report on the Ulster Canal.
I find that example a little exotic. We want to give the Minister flexibility but logic does not follow. There is a question as to whether the power to reroute a waterway exists in the Bill. It may also be ultra vires for the Minister to make an order of disposal under the Bill.
Amendment No. 11 deals specifically with the Tralee Ship Canal, the Eglinton Canal and Claddagh Basin and the Boyne Navigation. The Minister's reasoning is not identical. The argument against including the Boyne Navigation is it is expensive - we are unlikely to have the money to do it so why include it? That is a different argument from protecting the possibility of doing anything in relation to navigation in the future.
On the Eglinton Canal and Claddagh Basin, I doubt if the statement on ownership holds up. It is not my information that the Corrib Navigation Trustees are in ownership of the Eglinton Canal. They are what their title describes them, trustees. The canal has more than one usage. As it acts as a waterway, only part of it is used for navigation. As I remember, and I speak without the advantage of files in front of me, there is no question of ownership. I want to be of assistance to the Minister in relation to this. The local authorities involved nominate people to the board of the Corrib Navigation Trustees to exercise a trusteeship function. They have had advanced discussions with the Office of Public Works to facilitate the work which everyone agrees should take place.
The Minister said difficulties have been experienced in obtaining a legal definition of the Eglinton Canal. The Minister may say we were looking for a legal definition when I was Minister. However, with respect to both of us, it is inconceivable that after six years we are still looking for a legal definition. I would have had a shot at it. The Corrib Navigation Trustees' powers and functions can be derived from the law which established them. The confusion may arise in relation to the balance of rights between the local authority and their decisions regarding the Office of Public Works. The Bill washes its hands of the Tralee Ship Canal and leaves its maintenance to Kerry County Council and three UDCs. The purpose of this being included was that the Minister's Department would act as a catalytic agent to draw different powers together so something would happen.
I contest the use of the word "owned" regarding the Eglinton Canal and Claddagh Basin. It is an important concession that it is not included. There is not absolute ownership by the Corrib Navigation Trustees, although I am willing to be corrected on that. I am speaking from what I can recall in relation to the Boyne Navigation.
The power of a Minister should not be limited by the fact that money is not immediately available. Who knows when we will have money for an exotic project? It is not that exotic, just expensive. If one wants to retain powers, the case for finance can be made when money is available. The Minister was helpful in stating the circumstances regarding rerouting and being free to sell unused land. I described that as a little exotic. However, I am sure the Minister would agree that if that were the case, no serious parliamentarian would stand in her way. How do we know a Minister will always exercise such inspired discretion and will not want to sell for commercial advantage? To use the phrase used correctly by Deputy Gilmore, this would be privatisation.
As Deputy Higgins said, we know the Minister's policy on the disposal of inland waterways. However, we are not having a debate on Government policy but discussing changes in legislation. The power the Minister is proposing to put into legislation will enable her or any of her successors to sell our inland waterways. It is provided for in two sections: section 5, to which my amendment No. 4 refers and section 2, to which amendment No. 1 in my name and that of Deputy Higgins refers.
On amendment No. 1, the Minister is incorrect when she states that the power which she is asking the House to give her to delete from the Schedule an inland waterway would come back before the Houses for approval. If this is passed, as I understand the provision, the Minister will have the power, by order, to delete an inland waterway from the Schedule. She could simply come along and delete from the Schedule the Royal Canal, the Grand Canal or any of the other waterways to which it refers. She would then have to lay that order before the House for a period of 21 days. If the House did not pass a motion annulling that order it would stand.
I cannot recall when, if ever, the House passed a motion annulling a ministerial order nor, indeed, for that matter, can I recall when a motion on the annulling of a ministerial order was debated in the House. It does not happen in practice. What happens is that the order is made and, to all intents and purposes, it stands.
There is an alternative which would require the Minister, if she intended to exercise that power, to come before the House and move a motion to have the order approved by the House, but that is not what she is proposing here. She is proposing it the other way round. When the order is made, it stands in practice unless the House passes a motion annulling it.
With regard to amendment No. 4, I would not have any great difficulty - I defer to Deputy Higgins's experience and knowledge of what may or may not be ultra vires in this particular situation - with the principle of what the Minister is saying, that if, for example, an inland waterway was diverted and there was a disused waterway channel, it might come up for disposal. If provision was being made in the Bill to allow for that, I would not challenge it. However, that is not what is in the Bill. That may well be the Minister’s good intention and it may be her present policy, but it is not what she is proposing in the legislation. What she is proposing is to give the Minister the power to dispose of an inland waterway.
Deputy Lenihan reminds us that the Royal Canal and the Grand Canal were constructed under an earlier regime by private capital. I would like to hear Deputy Lenihan in his constituency in Clondalkin trying to explain to his constituents why he wanted to sell the Grand Canal or the Royal Canal to private interests and justifying it on the basis of what is in this Bill. That is effectively the power which the Minister is putting into the Bill. It is quite clear: "power to dispose of any inland waterway". If this Bill is passed in this form, this or a future Minister will have the power to sell off the Grand Canal, the Royal Canal, the River Shannon navigation, the Ballinamore and Ballyconnell navigation, the Erne and Lough Oughter navigations, in so far as they relate to this State and the portion of the Ulster Canal which relates to this jurisdiction. I do not think the Minister should have that power. If the Minister wants to make provision in the Bill which gives effect to her stated intention I would not have any difficulty with that. However, I will not agree to provide in legislation a power to sell the inland waterways and that is what is being proposed in this Bill.
I support Deputy Higgins's and Gilmore's contributions. The powers contained in the words "to dispose of" are limitless if they are not curtailed in the Bill before it is passed. In this blunt form, the Bill, as Deputy Gilmore suggested, gives the Minister the right to sell without the consent of the people. Whatever may have been the origins of our canals and waterways, we now see them as part of our heritage and the national property of the people of Ireland, and not something which could be put at risk by being disposed of by a Minister.
I take Deputy Gilmore's point that having to nullify the order is a negative rather than positive position. Perhaps the Minister might consider his suggestion to change that in the Bill, that a positive spin be put on the established procedure which allows the order to be laid before the House and go through unless it is contested and nullified by the House. That might at least give the Oireachtas a chance to have some sense of power and responsibility over such an extraordinary act, which could come about under the present wording.
I am slightly bewildered by the interpretation being put on my remarks and by the Opposition Deputies' interpretation of what is contained in this Bill. I read the explanatory memorandum and there is no mention of an indication by the Executive to allow powers to dispose of canals. It seems to me that the Minister is correct in stating that a Minister needs the power from time to time to delete, amend, divert, if necessary, or dispose of a certain section of a waterway.
The same applies to almost all transport infrastructure. The canals are not just a simple heritage matter; wider issues are involved. The Minister is giving herself a very limited power. It is tendentious to suggest that there is some sort of privatisation agenda behind this because the Minister, judging by her comments here, would probably find it very difficult to privatise a canal in the manner in which Deputy Gilmore has suggested. Her comments, which clearly indicate that is not her intention, would be of use in any subsequent action relative to her or a subsequent Minister in that regard. It would be open to a court challenge and it would only be fair of Deputies Higgins, Barnes and Gilmore to accept that the Minister is being sincere when she points out that she has no intention of selling off large chunks of our waterways.
The Minister's sincerity is not in question. We have, in fact, welcomed her assurance. We, as Members of the Oireachtas, are legislators and anything we say in these debates would not count in court. It would not be worth a tráithnín. What the court would decide on would be the text of the legislation as passed by the Oireachtas and signed by the President. Therefore, it behoves us - this is all we are saying - to have the best possible text.
We are in favour of the Minister having flexibility. We are simply drawing attention to the distinction between the power of addition and the power of deletion, if one takes Deputy Gilmore's very reasonable halfway measure.
I recall another Bill about cultural institutions, which is now an Act, and the question of introducing charges, although we agreed in the end that the public would not want them. Even when that measure was being considered, the idea was that one would not do it until one had brought a positive, affirmative motion before the Houses of the Oireachtas, in which the case for doing so had been justified and people had an opportunity to hear the arguments and vote for or against them. In a case of disposal or deletion it is not an unfair constraint on a Minister to require him or her to place an affirmative order before both Houses and let it stand or fall on its merits. It would probably go through quickly because who would want to delay something eminently practical?
We must also be fair. I appreciate what the Minister is trying to do and it is not a criticism of her to suggest we must try to produce the best text. My amendments are an attempt to discover the reasoning behind the changes made to the Bill. I am happy to await the reply to my more fundamental points in amendment No. 11, in relation to the use of the words "own" and "ownership". It is strange that, on the one hand, the Bill states it is difficult to discover a legal entitlement but precedes that remark by stating that something is in the ownership of a set of trustees. That does not fit.
As to the question of deletion and disposal, it is important not to use emotive words such as "selling off" or "privatisation". I have no intention of using them because they give the wrong perspective on this legislation. I agree with Deputy Barnes that it would not be right for the Minister to take on himself or herself, through legislation, the power to make such decisions. We are not doing that, we are ensuring that the question must come back before the Houses of the Oireachtas. In that way, the decision is not solely made by the Minister of the day.
On amendment No. 11, as a former Minister, Deputy Higgins will be only too well aware of the difficulties of not having the powers proposed under this legislation. With regard to the Tralee Ship Canal project I understand that a lack of powers led to problems about involvement in the works and maintenance of the scheme. We got around this by using the Office of Public Works.
I understand that he would wish further clarification of the ownership of Eglington Canal. I understand it comes under the power of navigation trustees but I am sure he will appreciate they stand as the legal owners subject to the trust. That is the approach which has been taken and that is why there have been difficulties. As he said, this has gone on for some years and given that it was not resolved during his four and a half year tenure I am sure he would not expect it to be resolved during the first six months of this Government.
The example of the Ulster Canal was used in discussing amendment No. 4. I was disappointed to hear Deputy Higgins refer to this as an exotic project because it is not. Given the result of the task force report on this canal, there is scope not only to improve this facility but for further cross-Border co-operation on the cultural and heritage fronts, which I am sure he will welcome.
As to the Bill's reference to the Houses of the Oireachtas, any Minister in this Department, from any political party, will not sell off part of our heritage. To allay further fears, "inland waterway" is defined in section 1 - already agreed by the committee - as "any river or lake . . . navigation or canal . . . and includes . . . a part of such river, lake, navigation or canal". It is not a question of looking for an opportunity to sell, privatise or otherwise dispose of our heritage, it is simply a practical and flexible measure which must be laid before the Houses. It is not within the power of a single Minister.
If I may clarify, I did not refer to the Ulster Canal as an exotic project - we were talking about the Boyne. The Minister and I share an approach; we differ from Deputy Lenihan regarding the canals as our heritage, which is the property of the people of Ireland.
I think we all do.
Let us leave aside those who exercised proprietorial and privileged colonisation through the canals at different periods of our history. I did not work for four and a half years on the question of who owned the Eglington Canal. I support much of what is in the Bill and am attempting to improve it. The proposed inland waterways authority is the best way to deal with the issue but my problem with the canals referred to in amendment No. 11 is that the Bill leaves the mess unresolved. I agree with the Minister's approach - it is one I used myself - that where the problem seemed almost intractable, using the Office of Public Works to act as agent is probably the only way to do something desirable.
It would be neater to put the amendments into the Bill. If one backs away, as in the case of the Corrib navigation trustees, the word "owned" will be qualified; the Bill provides that a right of ownership will be exercised by the Corrib navigation trustees subject to the trust. However, when one examines the text of the trust, it is a simpler matter than people think. A waterway is sometimes used for the passage of commercial traffic, sometimes for navigation and sometimes for recreation but future options will be bedevilled if rights of ownership are conceded. It depends on one's attitude. One could have included this provision in the Schedule and allowed those with absolutist ownership intentions to test the legislation if they wished. People differ but that would have been my inclination.
It is better to take the approach that these are the property of the people. Many of the provisions are archaic - some people had responsibility for buoys and markers, others for general maintenance, etc. In this case we wanted to do something which everyone agreed was important - repair the finest architecture and machinery such as locks and stonework. Archaic ownership structures from 150 years ago should not stand in the way of that work but so be it.
I will not repeat my arguments about the Kerry project. My argument is that the Boyne should be included as having future potential. I am aware of the cost of restoring a significant portion of it as a waterway.
I want to give an example of the difference between these affirmative offers in placing an order. I ran into this problem in relation to section 31 of the Broadcasting Act which was repeated before I became a Minister. Deputy Gilmore made the point that a positive resolution would be required to negate it within a period of time. Unless someone challenges a ministerial order to delete without justification, this will happen. Why can the Minister not agree to give notice of deletion by placing a motion on the Order Paper of the Dáil? This would be passed in minutes and no one would suggest an ulterior motive. That argument was made by all sides of the House at different times. If the Minister accepts amendment No. 4 and says she will consider the ownership issue in amendment No. 11 between now and Report Stage, progress could be made.
I am disappointed with the Minister's response to these amendments. Both Deputy Higgins and I have made a reasonable case and have suggested that if the Minister introduced amendments along a particular line, it might meet our requirements. I agree with Deputy Higgins about deleting a waterway from the list of waterways in the Schedule. If the Minister told us she would be willing to bring an order before the House and that the House would be given the opportunity, as she indicated in her earlier reply, to approve or disapprove it, that would satisfy me in relation to section 2. The House would be guaranteed an opportunity to screen the proposed order and the Minister would be able to set out the reason for it. Deputy Higgins is right that the order could be technical and that there could be occasions when it would pass the House without debate.
I am disappointed the Minister took issue with some of the language used during the discussion. Emotive terms have not been used and the discussion has not had an emotive tone. There is nothing ambiguous about a provision in legislation which states that the Minister wants the power to dispose of State property. When we talk about disposing of State property, we are talking about selling it. I do not make any apology for stating that the Bill gives that power to the Minister.
It is not far fetched to envisage a situation where someone might contemplate selling one of the canals to a private interest. I know from my experience in Government that there has been a rapid increase in the number of water based leisure pursuits and that there is considerable private interest in the development and use of our waterways. Whether a Minister wants to sell a waterway or not is another matter. We should not include in legislation a blanket power which enables a Minister to sell one of the canals. I accept the Minister's point that there may be circumstances where this might be used and if she wants to amend the provision to circumscribe those circumstances, we could probably reach agreement. However, giving this or any future Minister a blanket power to sell off the waterways - one cannot use any other term as to dispose of means to sell - is wrong. A canal will be deleted from the list if it has been sold. It will not be deleted because someone fills it in. We must deal with this provision in the Bill.
We have spent a long time discussing these amendments. Unless the Minister has something to add, Deputy Eoin Ryan will be the last contributor.
Deputy Higgins proposes that three waterways should be included in the list. I do not know if it is coincidence, but one of them is in the former Taoiseach's constituency, one is in the former Tánaiste's constituency and a third is in Deputy Higgins's constituency. Are there other waterways of equal merit which could be included if money was available? Is there no waterway in Dún Laoghaire which Deputy Gilmore could have included?
We could have added Dún Laoghaire harbour.
I realise the importance of this discussion but I will not delay the committee any further. Three projects are mentioned in amendment No. 11. It is important to state that one or all of these may be included in the Schedule at any time where appropriate. It is not appropriate to include the Tralee Ship Canal at this stage because management of the canal should rest with Tralee Urban District Council. As I said previously, if this amendment was accepted, the Tralee Ship Canal would be mentioned in the Schedule and then legislation would have to be introduced to delete that if the powers of deletion were not already in the Bill as proposed. It can be added to the Schedule at any stage.
Deputy Gilmore is overstating the argument about disposing of property. He seems to suggest this is a new provision which has not been included in previous legislation. Disposal of property is an issue for every Department and is included in legislation regarding property under the aegis of a Minister.
It is important to emphasise that we are talking about a minuscule amount of property under section 1 on inland waterways and the reference in amendment No. 4 to the Ulster Canal. Amendment No. 1 concerns a deletion. This will come back to the Oireachtas. The Opposition made the case that this is not the kind of procedure it would wish to see. However, once a proposal is laid before the House it is open to challenge. The Minister will have to explain why such action is being proposed. It is not, nor should it be, a question of the Minister being able to take unilateral action. It is important that there be flexibility for the proper working of our canals. It is not, nor should it be seen as, the Minister overstepping his or her remit on the protection of property and our heritage.
As regards the Tralee Ship Canal, Deputy Higgins rightly stated that it was because of the lack of ministerial powers that the Office of Public Works took on that work. We are grateful for that. It was a way around the problem. I am asking the committee to adopt a practical approach to try to see how best we can maintain our inland waterways and make them accessible to more people. All sides appreciate that inland waterways are important. They have great tourism potential and the canals are intrinsically important. I hope the committee will support me. The people are protected by the fact that proposals must be laid before the Houses of the Oireachtas. This puts the Minister on the spot as he or she must explain why they wish to take a course of action. This is a small matter which will result in greater care of and access to our canals.
Amendment put.
The Select Committee divided: Tá, 6; Níl, 8.
Tá
- Barnes, Monica.
- Carey, Donal.
- Gilmore, Eamon.
- Higgins, Michael D.
- McCormack, Pádraic.
- Mitchell, Olivia.
Níl
- Brady, Johnny.
- Carey, Pat.
- de Valera, Síle.
- Hanafin, Mary.
- Lenihan, Conor.
- Moynihan, Donal.
- Moynihan, Michael.
- Roche, Dick.
SECTION 3.
I move amendment No. 2:
In page 4, subsection (1), line 5, to delete "and be deemed always to have been".
This deals with the retrospective effect of the legislation. The Department in its present format has only existed since last July. It is too much to ask us to legislate to the effect that responsibility for these inland waterways had always been a function of the Minister. Will she clarify the position?
This is a drafting provision and it should not cause problems. It is necessary to give retrospective effect to the Minister's functions and to mange and develop the inland waterways. The Attorney General has advised that this is the best way to proceed.
I accept the Minister's assurances.
I cannot disagree with my colleague.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5.
Amendment No. 3 is a drafting amendment and amendments Nos. 4, 5 and 6 are related. Amendment No. 4 has already been discussed and amendments Nos. 3, 5 and 6 may be taken together. Is that agreed? Agreed.
I move amendment No. 3:
In page 4, subsection (1), line 42, to delete "It" and substitute "Subject to compliance with any legal requirement in that behalf, it".
This inserts a normal legal draft that would, for example, take account of compliance with such planning or other legislation as is contingent on the action proposed to be taken. The Minister may not find it difficult to accept this in the spirit in which we discussed the previous accepted amendment.
Amendment No. 5 is consistent with this accepted amendment in that the words "and have" be deleted and substituted by the words "and to have had". If we concede the principle outlined in the amendment agreed to it would be sensible to have the text consistent in that regard. Amendment No. 3 deals with this when it proposes that "It" in page 4, subsection (1), line 42, be deleted and substituted by "Subject to compliance with any legal requirement in that behalf, it".
Section 5 gives the Minister various powers and functions, including providing for the demolition of buildings, as set out in section 5(1)(b). I am seeking to ensure that these powers will be exercised in line with all the usual legal requirements such as planning permission. The Minister may well say she has no intention of doing anything which is illegal or outside of the planning ambit. The fact of the matter is that the Bill would be better if this amendment were accepted. It would place such legal actions, as the Minister of the day might be required to take, within the disciplines which have been accepted in other legislation recently.
Amendment No. 6 in the name of Deputy Kenny is very much in line with the thrust of the Bill. The Minister, in response to earlier contributions, stated that she and her Department are committed to restoring waterways and making them even more accessible to Irish people and tourists in order that they can avail of their full potential. The Minister assured us that great emphasis will be placed on leisure and recreation for Irish people and tourists.
In the past, attempts may have been made to deny people access to certain parts of land along our waterways. It is very important that all land which may be used for recreational purposes and over which the Minister has control is specifically spelled out. The Bill should make provision for the Minister's right to designate land for recreational purposes. Because difficulties may be experienced through people attempting to privatise or cut off land which should be accessible, the amendment would strengthen the Bill considerably. I take the Minister's point that there are by-laws to cover this area but perhaps it would be better to include this provision in a section of the Bill rather than in a by-law as certain dangers might lie ahead in relation to contentious law cases or people erecting boundaries which can give rise to huge problems. The inclusion of this provision would strengthen the Bill and its motivation to confer extra powers on the Minister.
I support Deputy Barnes's comment. This problem in relation to recreational facilities has arisen mainly in the midlands, Kildare and Laoighis-Offaly. I support the amendment as it would make the Minister's powers more explicit.
The amendment states that the Minister may designate any or all land for recreational use. If a river bank is sound enough, and if the rights of pedestrians are not interfered with, a person should be allowed to ride horses or pursue other activities there. A distinction exists between 'designating' and 'facilitating'. It may well be in the Minister's power to address the spirit of the amendment but if she were to designate a waterway for recreational use she would not wish to diminish any existing use it has. I support the idea that, where nobody is being interfered with, use of the waterways should be allowed for recreational purposes. However, such use should be facilitated rather than exclusively designated. Exclusive designations on any kind of public property ultimately cause more trouble than they offer assistance. I am arguing in favour of the principle of the amendment. Perhaps the Minister, between now and Report Stage, would consider the text of the amendment should she be disposed to accept its principle.
I want to refer to amendment No. 6 first. I agree with Deputy Higgins's point on the necessity to be somewhat circumspect on the question of exclusive designations. That would not be something we would wish to see happen. This is enabling legislation and the power which exists under the by-laws effectively gives the Minister the power outlined in the amendment. As the power already exists, there is no necessity to enable the Minister of the day to make such designations through the Bill if he or she so wished. One must then consider what would happen if the Minister were predisposed to implementing the power under those by-laws.
I am aware that Deputy Dukes is very interested in what could be done to facilitate horse riders along the banks of the canal. This issue has caused some controversy and debate in other countries. I am considering the appropriate use of the property along the canal and I will contact Deputy Dukes when a decision is reached. However, in terms of this legislation, we are concerned with the powers of the Minister. In that respect, I do not believe amendment No. 6 is necessary as the powers already exist under the by-laws. In facilitating pursuits such as horse-riding, we must seek to strike a balance to ensure that, in facilitating one sport, we do not undermine the facilities which already exist for other people such as pedestrians. Although I cannot accept the amendment, I am considering this entire matter. Deputy Dukes raised the issue very effectively on Second Stage and has also corresponded with me on it. I shall contact him when a decision has been reached.
Amendments Nos. 3 and 5 are technical ones. On amendment No. 3, I have been assured that the subsection to which it refers is correctly worded and, therefore, I cannot accept it.
I agree with the general principle of amendment No. 5 but I have been advised by the Attorney General that the amendment would require redrafting. I intend to table an amendment on Report Stage.
I welcome the Minister's agreement regarding amendment No. 5.
I can appreciate why the Attorney General would advise any Government of the day that everything was in order in relation to amendment No. 3. The suggestion is that anything drafted for the Minister is perfect. I am merely stating that the Bill would be strengthened by such a provision. The fact is that, in the past, some Departments and agencies had to be dragged by the hair to comply with planning regulations. We must be grateful to the courts for ruling that these bodies should be subjected to the same planning disciplines as other citizens, corporations and institutions. It is to our advantage that this happened. I am simply saying that any function carried out by the Minister should be subject to compliance with any legal requirement in that behalf.
I am not interested in delaying matters but I wish to make a second point. I do not know whether the Attorney General advised the Minister on this matter but other legal requirements might arise out of, for example, the Accession Act. There might be a future European requirement which would be implemented by direct action into domestic law by putting in place text such as that under discussion. The Minister stated that she observed everything on the Statute Book and that helps the legislation. She also stated that if this was not done the Government would wait for someone to challenge the text of the Bill.
Will the Minister reconsider amendment No. 3 before Report Stage to see if it improves the legislation? I believe it does.
We have already dealt with amendment No. 5 and, considering the fact that I agreed to it in principle, I will be putting down an amendment on Report Stage on the advice of the Attorney General.
With regard to amendment No. 3, I am advised by the Attorney General's Office that the wording of this section is correct. Therefore, the amendment would be superfluous because the Minister is subject to the usual legal requirements. For this reason, I cannot accept amendment No. 3.
Is amendment No. 3 being pressed?
If history had been different and if Departments and agencies had been forthcoming and offered to place themselves under the same discipline as companies and individual citizens, I would agree with the Minister that the amendment is unnecessary. However, that has not been the case. People are seeking what I call "an equality of discipline before planning law". It is good for the people if legislation states that we will be bound by the same legal requirements in respect of planning, the environment, etc., as everyone else. The Minister's assurances convince me that the amendment, as she considers it, is unnecessary. However, I believe there is merit in spelling out the requirement because it is exemplary. I am pressing the amendment.
Amendment put and declared lost.
Amendments Nos. 4 and 5 not moved.
I move amendment No. 6:
In page 5, subsection (1), between lines 28 and 29, to insert the following:
"(e) to designate any or all land referred to in paragraph (a)(i) of this subsection for recreational use including walking, horse-riding, fishing and such other uses as the Minister shall from time to time deem appropriate.".
The amendment is not being pressed at this stage. I take the Minister's assurance with regard to copper-fastening this provision. If by-laws serve the purpose outlined in the amendment, do they carry the same weight as legislative provisions?
Yes, I understand that the necessary powers are contained in the by-laws.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 5, between lines 28 and 29, to insert the following subsection:
"(2) In providing financial assistance under subsection (1)(d) or otherwise to the Arts Council, the Minister shall determine the amount of such assistance as shall be expended by the Arts Council for the sole purpose of grant-aiding the Irish Museum of Modern Art Company, the National Concert Hall Company and the National Theatre Society Limited.".
The effect of amendments Nos. 7 and 8 would be to allow the Minister to ring-fence funding for the three major national cultural institutions for the arts, namely, the Irish Museum of Modern Art, the National Concert Hall and the National Theatre Society Limited. This was done on an administrative basis during my tenure as Minister and I believe it succeeded. I suggest that the Minister take this opportunity to place the mechanism on a statutory footing.
If that is not done and it is decided to end the practice, a corrosive debate will ensue between, for example, the Arts Council and the National Theatre Society or the clients of the council will see themselves as being in competition with the three cultural institutions. The amendment identifies the three cultural institutions and seeks to ring-fence funding in respect of each. The Arts Council can then proceed with its own business. The practice to which I refer was agreed in consultation with the Arts Council at a meeting at which all interested parties were present to agree the mechanism of operation.
Amendment No. 8 suggests the insertion of the following subsection:
In providing financial assistance under subsection (1)(d) or otherwise to the Arts Council, the Minister shall be entitled to provide funding for dance and for creative communication in sign language and notwithstanding section 1 of the Arts Act, 1951, the Council may so expend assistance provided in accordance with this section.
The dance community has a long standing grievance about its exclusion from Arts Council funding. It was not my business, nor is it that of the Minister, to interfere with the Arts Council but dance is treated as the Cinderella of arts funding and a dance officer has not been appointed.
Amendment No. 8 also relates to sign language and arises on foot of a recommendation made by the Council on the Status of People with Disabilities. It seems this section is the appropriate place to respond to that recommendation. That is the reasoning behind both amendments.
With regard to amendment No. 7, Deputy Higgins will be aware that I referred to this matter in the Dáil on 22 November 1997. I am reviewing the funding arrangements for the National Concert Hall, the Irish Museum of Modern Art and the National Theatre Society Limited. Therefore, it would not be appropriate to consider making legislative provision at this time. In November, I stated I was unclear about the efficacy or relevance of the new funding arrangements in respect of the three institutions in question which were introduced by my predecessor, Deputy Higgins. The National Concert Hall and IMMA are not entirely happy with that procedure. Therefore, I cannot accept this amendment.
I agree with Deputy Higgins that dance has been seen as the Cinderella of the arts. It is an art form in which I have an interest and is an area I would like to see developed. However, the Deputy adverted to the fact that it would be unwise and inappropriate for any Minister to be seen to interfere with how the Arts Council, which is an independent body, uses its funds. This is the main reason I cannot accept amendment No. 8. However, I accept that under the Arts Act, 1951, and the Arts Act, 1973, art is defined as painting, sculpture, architecture, music, cinema, drama, literature, design in industry, the fine arts and the applied arts. There is no direct reference to dance. This was also a concern of the previous Minister, Deputy Higgins. However, the absence of such a definition does not inhibit the council from supporting the art form. I would like to see greater support given to dance. However, it is important a Minister does not cross the line when it comes to the independence of the Arts Council. It must make decisions regarding the funding of each element of the arts.
On amendment No. 8, I am glad the Minister and I agree on the principle of autonomy. I never interfered with any institution for which I, as Minister, had responsibility, whether RTÉ, the Irish Film Board or the Arts Council. I accept the Minister follows the same rule. However, the issue arises regarding legislation. The defect is in the wording of the Arts Act, 1951. We must amend the wording of that Act, not the Arts Council. The Minister could accept the principle of amendment No. 8 and give parity of esteem in the language of the Act. The Minister is not ring-fencing the Arts Council. The amendment states that "in providing financial assistance under subsection (1)(d) or otherwise . . . the Minister shall be entitled to provide funding . . ."
This has not arisen, but hypothetically, if the Minister gave a block grant to the Arts Council and someone had a grievance regarding the specified activities defined in the 1951 Act, he or she could contest an allocation made to dance. By accepting this amendment, parity will be given to dance and the Minister will be proactive in accepting the report of the Council for the Status of People with Disabilities as regards creative communication in sign language. I urge the Minister, even if she does not accept my wording, to look at this amendment between now and Report Stage.
I note the Minister's point that the National Concert Hall Company and IMMA are not entirely happy with amendment No. 7. I did not draft this amendment without thought and consideration. We had meetings with all the institutions. A debate about the future of the National Theatre Society Limited is necessary although this is not the time for that. If this amendment is not accepted and one departs from the practice of ring-fencing cultural institutions, the Arts Council's clients in different disciplines - and both of us as Ministers have increased the Arts Council budget - will say the reason they are not getting more is because of the cost of running the Abbey Theatre.
The reason I specified these as national cultural institutions is so that argument will be put aside and the Arts Council will get on with its business and move forward. One could say the National Theatre Society Limited was a greater beneficiary than the National Concert Hall and IMMA because the opprobrium was not on them. The National Concert Hall and IMMA enjoy a different relationship with the public. Perhaps the Minister can draft a differently worded amendment if she proposes to change my model. There must be a mechanism of ring-fencing cultural institutions in order to avoid the debacle I described.
The discussions relating to amendment No. 7 are ongoing and it is not appropriate to incorporate the views expressed by the Deputy in this legislation. I accept some of the arguments he put forward and they will assist my deliberations on this matter. It is a debate for another day. Deputy Higgins said a debate on the Abbey Theatre should not be conducted today. Further debate on this matter is necessary.
On amendment No. 8, I am interested in dance and I am also aware of the Council for the Status of People with Disabilities' wish to forward sign language. However, that is not a matter for this legislation. It would be more appropriate to review the Arts Acts because they are in operation for almost 50 years, rather than having a piecemeal approach to existing legislation. A complete review might augur well for the arts. I would like to see these proposals discussed in that context.
I thank Deputy Higgins for acknowledging that the Government and I followed up on our election promises regarding the substantial increase of funding to the Arts Council, which was increased by over £5 million to £26 million in 1998.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendment No. 8 not moved.
Section 5 agreed to.
NEW SECTION.
Amendment No. 9 involves the insertion of a new section. There is an amendment to amendment No. 9. Amendment No. 12 is consequential on amendment No. 9. Therefore, amendments Nos. 9, the amendment to amendment No. 9 and amendment No. 12 are to be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 5, before section 6, to insert the following new section:
"6. (1) The Heritage Act, 1995, is hereby amended in section 10 by the insertion after subsection (4) of the following subsection:
'(5) This section shall apply to a building owned by a public authority and which has been designated as a heritage building by order made under subsection (4).'.
(2) Subsection (1) of this section shall be deemed to have applied and have effect on and from the 10th day of April, 1995.".
I move amendment No. 1 to amendment No. 9:
In the second line of subsection (2), to delete "and have" and substitute "and to have had".
My amendment is a drafting one. Section 1 defines "functions" as including powers. It is, therefore, wrong for the title to refer to powers and functions as if they were distinct concepts when the Bill says they are not. The amendment simply makes the Bill consistent. Since section 1 defines functions as including powers, when one comes to powers and functions in the title one is setting up two kinds of powers - powers and powers which are contained within functions. It is simply a drafting amendment which removes confusion.
Are we discussing amendment No. 10 or the amendment to amendment No. 9?
We are discussing the amendment to amendment No. 9.
I believe the amendment to amendment No. 9 is technically acceptable.
With regard to the amendment to amendment No. 9, I understand that the Deputy's wording may be more eloquent than the Bill but I am assured by the Attorney General's office that, from a legal point of view, the wording which is being proposed in the Bill is the way to proceed.
I will return to this matter on Report Stage. I have learnt to treat the advice of Attorneys General to Ministers with the greatest respect but with some circumspection and wisdom as well.
With regard to amendment No. 9, I informed the Dáil on Second Stage that I would be tabling an amendment at this stage because there was a technical problem which had to be addressed by way of such an amendment.
This refers to section 10 of the Heritage Act, 1995. This amendment seeks to put clearly and without equivocation the views which were expressed by the previous Minister, Deputy Higgins, with which I wholeheartedly agree. It is important to ensure that in this legislation we set out clearly the intentions of section 10.
Section 10 of the Heritage Act, 1995, conferred an important function on the Heritage Council in relation to heritage buildings owned by public authorities. The intention of that Act was to provide that a public authority may not proceed with a proposal to demolish, alter significantly or dispose of a building owned by it which was designated as a heritage building by the Minister for Arts, Heritage, Gaeltacht and the Islands under this section on the advice of the Heritage Council unless the Minister agrees to the proposal or to a modified form of the proposal or the Government agrees to the proposal. In other words, the interpretation of section 10 has been subject to conflicting legal advice. Rather than having that space for ambiguity or legal conflict, it is important that we state clearly what I believe was the intention of this legislation in the first place. In fairness to the previous Minister, he made that quite clear on Second Stage when he was referring specifically to section 10.
The amendment just clarifies the matter. That is why it is important that the committee accepts amendment No. 9. I seek the support of the committee in that regard to remove any possibility of uncertainty over the interpretation of section 10.
Part of the problem has been that matters will move on in the future, but one could have local authorities and planning decisions in conflict with a heritage matter. In so far as this adds both clarity and strength to the Heritage Act, 1995, I can support it.
Amendment agreed to.
Amendment No. 1 to amendment No. 9, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.
I move amendment No. 10:
In page 5, line 41, to delete "Powers and".
I have already spoken in favour of this amendment and I do not intend to waste the time of the committee. The use of "Powers" is redundant for the reasons that I have stated, that is, in relation to section 1 functions are defined as including powers and, therefore, it seems that the Minister has set up the idea as if they are distinct concepts. If the Minister includes powers and functions and defines functions as including powers, she will need to seek an interpretation as to which powers are included in functions and whether powers are separate to functions. Frankly, one does not need "Powers and" at all. That should be deleted and leave it as "Functions". It is absolutely clear then that powers are included in functions, as stated in section 1. That just seemed consistent. I urge the Minister to accept the amendment.
I cannot accept this amendment because we are talking about the powers and functions of the Minister for Arts, Heritage, Gaeltacht and the Islands in this Bill. The words "powers and functions" give the Minister the power to carry out the functions. Therefore, we need "power and functions".
If one holds that logic, the way to end this is to revisit the text of section 1 on Report Stage.
Are you giving notice of doing so, Deputy?
Yes, I am. I will not press a vote in relation to this matter but if one is to interpret it as the Minister has now, it has implications for the text of section 1. I was trying to leave intact the text of section 1 and make the title consistent.
The clerk will note that Deputy Higgins intends to return to section 1 on Report Stage.
We may raise that issue on either one section or the other or both.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SCHEDULE.
I move amendment No. 11:
In page 6, after line 16, to insert the following:
"7. The Tralee Canal.
8. The Eglinton Canal and Claddagh Basin.
9. The Boyne Navigation.".
Amendment put and declared lost.
Question proposed: "That the Schedule be the Schedule to the Bill."
Is the Minister proposing to make changes to the Schedule between now and Report Stage?
No. I give notice to the committee that I will introduce an amendment on Report Stage concerning my powers to close a waterway, including a towpath. I have received legal advice that there are implications for the completion of maintenance and structural works along the waterways - the plans may be interfered with unless we have these powers.
Which section will be amended?
It will be an additional subsection to section 3 concerning the power to close the towpath as there seems to be a difference between canal and canal property.
Question put and agreed to.
TITLE.
I move amendment No. 12:
In page 3, line 14, before "AND" to insert "TO AMEND THE HERITAGE ACT, 1995,".
Amendment agreed to.
Title, as amended, agreed to.