I welcome the Minister and her officials, Mr. John Browne, Mr. Eugene Coughlan and Mr. Eddie Burke. I suggest consideration of the Bill continue without a break until 8.30 p.m.
Turf Development Bill, 1997: Committee Stage.
There is a very important debate in the House commencing at 5.30 p.m. I suggest we break as early as possible for that debate. Perhaps we could finish at 7 p.m.
Is that agreed? Agreed.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 6, subsection (1), between lines 1 and 2, to insert the following definition: " 'enactment' includes an instrument made under an enactment;".
This is a technical amendment. The Bill contains a number of references to enactments. These references arise, for example, in section 37(4), section 50, etc. This amendment is to make clear that a reference to an enactment covers not only primary legislation but also statutory instruments.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 2:
In page 6, between lines 44 and 45, to insert the following subsection:
"(2) The Minister may by order amend or revoke an order under this Act (including an order under this subsection).".
The advice of the parliamentary draftsman is that this technical amendment is needed. Its purpose is to provide that the Minister may, with the approval of each House, by order amend or revoke an order made under this Act. It is a standard provision in legislation.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
It is suggested here that section 25 of the Energy (Miscellaneous Provisions) Act, 1995, has been repealed. This section gave power to the Minister to give the money to Bord na Móna.
There is an amendment on that matter.
It was ruled out order because it was judged to involve a potential charge on the Revenue.
Could this provision be retained in the 1995 Act? If so, the Minister could still give the £10 million which has been saved to Bord na Móna. She would have no power to do this if section 25 of the 1995 Act is repealed. It would amount to short changing Bord na Móna by £10 million.
That is not the position. The provision in the Energy (Miscellaneous Provisions) Act allowed for £100 million to be paid to Bord na Móna. We examined this yesterday when we considered the Deputy's amendment. That money was given in two tranches, in December 1996 and September 1997. A sum of £10 million remains, which is a matter for the Estimates and the budget.
If this section is repealed will the Minister still have the power to give this money to Bord na Móna?
Yes. We considered this matter before it became clear that the Deputy's amendment would be ruled out of order.
I did not realise it would be ruled out of order. However, if tabling it has resulted in this outcome, I am satisfied that it was put down.
That is not to say the Minister for Finance and I will agree on the sum of £10 million. It is a matter for review under the budgetary process.
Question put and agreed to.
Sections 5 to 7, inclusive, agreed to.
SECTION 8.
I move amendment No. 3:
In page 7, subsection (1), line 18, to delete "public limited company" and substitute"cuideachta phoiblí theoranta".
The title of the company will officially be in two languages - in English and Irish. The amendment proposes that the company be given its full Irish title. Those who wish to translate it to English may do so. It would eliminate the oxymoron of the name of a company with an English and Irish version. The name would read Bord na Móna cpt rather than Bord na Móna plc. This would be the proper name for the company. The result would be similar to that of Aer Rianta, which the Minister has agreed should be called Aer Rianta cpt.
We did not agree that it should be called Aer Rianta cpt. When discussing the relevant legislation in that regard, it was agreed that the company should be given its full title. I am aware the Deputy has moved this amendment from the highest motives. However, increasingly these firms have become more international. In this context, Bord na Móna plc is understandable as an entity.
I thought it would be common sense to have the title of the company in one rather than two languages. I will withdraw the amendment if the Minister will consider the matter and see what can be done on Report Stage.
This is now an energy company; it is not just a turf company. It is involved in wind energy and I hope that part of its activities will expand. I would also like to see it take over the turf burning power stations, which would put it into the generation business. It would also be desirable for the company to take over the power stations, which the ESB never wanted and still does not want and, in consequence, is running inefficiently. I said this to the ESB, both as Minister of State, as member of the Front Bench and as a backbencher and it did not disagree with me. I favour a situation where Bord na Móna would have responsibility for running the power stations. In that context, perhaps the Minister will examine the title of the company. Perhaps it should be the Irish energy company. However, whatever the name, it should be in one language rather than two.
When Bord na Móna was set up, everybody understood the name. It would be difficult for people to understand "cuideachta phoiblí theoranta".
The company now distributes coal and is also involved in the production of wind energy.
I agree the company is expanding. The Deputy said he would raise this matter on Report Stage.
I ask the Minister to consider it between now and Report Stage.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
Amendments Nos. 4 and 5 are related while amendment No. 38 is consequential on amendment No. 4 and all may be discussed together, by agreement.
I move amendment No. 4:
In page 7, lines 30 to 32, to delete subsection (2) and substitute the following:
"(2) The principal objects of the company shall be-
(a) those comprised in the functions conferred on the Board by the Turf Development Acts, 1946 to 1995,
(b) those enabling Bord na Móna to participate in the market for electricity,
(c) those enabling Bord na Móna to engage in the commercial development of its land bank,
(d) those enabling Bord na Móna to commercially develop its engineering resources.".
The fundamental terms under which Bord na Móna was set up have not been altered. The market for electricity is opening up and Bord na Móna's main assets are its peat resources and the engineering capacities of its staff. The fundamental mandate for Bord na Móna should be widened to enable it to engage in other activities such as the generation of electricity. Bord na Móna's contract with the ESB expires in approximately four years. The amendment seeks an expanded mandate to allow Bord na Móna to develop in the electricity industry market which is being liberalised.
Earlier during Question Time I mentioned that the Northern Ireland electricity service hopes to build a generating station somewhere on the east coast at a cost of £150 million. A Finnish group is building a generating station at Edenderry and the purpose of the amendment is to give Bord na Móna the same opportunity. I congratulate the ESB, its chairman, Mr. William McCann, and its chief executive, Mr. Ken O'Hara, on the company's profits which were announced this morning. The purpose of the amendment is to give Bord na Móna a role in the changing market. The amendment should be considered in the context of what the future may hold for Bord na Móna when peat stocks run out.
The Bill provides that the functions of the new plc shall be those contained in the 15 Turf Development Acts which were introduced between 1946 and 1995. A large range of measures have been adopted since the original Act was introduced. These relate to the development of Ireland's peat resources. For many years the board's activities involved only the harvesting and marketing of turf and turf products.
The Turf Development Act, 1990, allowed the company to extend its activities beyond its traditional remit. This Act enables the board to engage in all such commercial activities which can be advantageously conducted in conjunction with its core activities. Section 5 of that Act states that the board may inside or outside the State engage in all such commercial activities whether in relation to the production or marketing of turf or otherwise which, in the opinion of the board, arise out of and can be advantageously conducted in conjunction with any function of the board. The 1990 Act, which was sweetly compiled, allows the board to engage in any commercial activities it considers fit.
Members will have noted from today's newspapers that the board announced yesterday that it has become involved in other commercial activities. Bord na Móna is outgoing and forward looking. The money provided by this and the previous Government to the company to discharge its overhanging debt gave it a great sense of confidence in its future which it is now using. I have checked and there is no commercial activity in which the board cannot engage if it wishes under the 1990 Act. The legislation does not state that the company cannot engage in certain commercial and viable activities.
Can the company knit any type of pattern now?
Yes. Regarding the Deputy's point about what will happen when the peat stocks are exhausted, the company is already facing that situation and is moving ahead. It acquired the Sutton's Coal and Stafford's Coal companies this week.
It is also involved in wind energy.
Yes. It is involved in many areas. I join Deputy Currie in congratulating the ESB on its 1997 figures.
Am I correct that under the 1990 Act, there are no commercial activities in which the company cannot engage if it wishes and this covers the point of my amendments?
Yes.
I will be happy if all the answers to queries are as satisfactory.
I join the Minister and Deputy Currie in congratulating the ESB. I am delighted at the level of profits because it will enable the Minister to do as she said and not make an order for an increase in ESB domestic and other customer charges.
Will the Deputy support me publicly in that?
Yes. This is a public meeting.
Yes, but nobody is watching or listening to us. They are all in the Dáil.
Today we can celebrate the fact there will be no increase.
The Deputy should hold his horses.
We should not lose sight of the fact that Deputy Stagg is speaking on his own behalf and not necessarily on behalf of his party.
Everybody wishes the ESB well in its endeavours but we should not forget that the company has huge borrowings of approximately £800 million.
That is the lowest they have ever been.
The fact that the company made substantial profits last year does not take away from the fact that it has substantial borrowings.
It also has a big capital programme.
I would like the ESB to proceed with the fourth phase of the development at Moneypoint.
Perhaps we should return to the Bill.
This matter is related because Bord na Móna proposes to get involved in developing a station to generate electricity with turf. The fourth phase of Moneypoint could be brought into operation at much less cost. The economics of such a move should be taken into account.
All the markets, including the electricity area, are being liberalised.
Regulators will be everywhere. We will not need a Minister.
I will be redundant.
In view of the assurances given by the Minister, I will withdraw the amendment.
It is marvellous that the State enterprises are beginning to move into the black. However, I am concerned about the level of duplication among State enterprises. There were disasters in the past when State enterprises outbid each other because they were involved in similar areas of activity. It is important that they are not in a position where they will be in negative competition with each other. In the past, a large number of staff moved from one State enterprise to another.
The Deputy is making a Second Stage speech.
That is not the case. I am making a fair point. We should not get carried away. While it is marvellous that these companies are doing well, we must not lose sight of the fact that there have been disasters in the past, such as Bord na Móna's acquisition of Du Móna SA in France. There is much to be said for ensuring the company focuses on specific areas and that there is not much negative competition involved.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 7, lines 41 to 44, to delete subsection (5).
I am strongly advised that subsection (5) does not comply with the Constitution. It is doubtful if the Minister can be given power to amend an Act by regulation, as this section purports. There are a number of Supreme Court decisions to this effect. For example, in City View Press Ltd. v. ANCO and Cooke v. Walsh it was ruled that the Minister could not change an Act by order.
Any part of it.
The Minister or any collection of Ministers could not change any Act or any part of any Act by order. It could only be done by legislation. There is also other case law dealing with this aspect. In view of this, I suggest the Minister consider this matter for Report Stage. I will be opposing section 50 for the same reason. It purports to give power to the Minister to change the Act without legislation. I am advised this is unconstitutional and there is case law to support that view.
We will take legal advice and go back to the parliamentary draftsman and the Attorney General's Office.
There has been much discussion about the rights and wrongs of ministerial law. There are similar provisions in other legislation.
That is correct. Examples include the Forestry Act and the Irish Aviation Authorities Act.
What happens when a provision in a Bill is found to be unconstitutional? Does the whole Bill fall or does that section of the Bill fall subsequently?
I suppose it is the section.
Perhaps the relevant provisions fall.
We will look into the matter.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 15, inclusive, agreed to.
SECTION 16.
Amendment No. 23 and amendment No. 1 to amendment No. 23 are related to amendment No. 7 and all may be taken together. Is that agreed? Agreed.
I move amendment No. 7:
In page 9, lines 6 to 8, to delete subsection (3) and substitute the following:
"(3) Save as authorised by subsection (2), the Minister shall not transfer or alienate any of his or her shares in the company.".
This amendment would prevent the Minister from selling her shares in the company without the sanction of an Act of the Oireachtas. The implications of the existing subsection (3) appear to be that the Minister can sell 49.99 per cent of the shares and a Dáil resolution rather than an Act is required to sell the rest.
This arose because of the debate on Second Stage. A group of unions met with me to discuss the matter and subsequent correspondence ensued. The group was anxious that legislation would provide that over 50 per cent of each subsidiary cannot be disposed of without Dáil approval. I drafted amendment No. 23 on that basis. Following discussion with the management, we concluded that we could proceed in line with the stated position. I subsequently told management of my intentions. The proposal was reasonably well received.
The Minister's amendment has move along the direction of my proposal, which I appreciate. I would have preferred if her amendment had ended with the word "company" in the third line. However, I am prepared to accept the amendment as a move in the right direction and in the spirit in which it has been drafted.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Section 17 agreed to.
SECTION 18.
Amendment No. 1 to amendment No. 26 and amendments Nos. 27 and 33 are cognate on amendment No. 8. Amendments Nos. 25, 26 and amendment No. 1 to amendment No. 26 are related and all may be taken together. Is that agreed? Agreed.
I move amendment No. 8:
In page 9, subsection (6), line 28, to delete "and 1988" and substitute "to 1993".
This and similar amendments are designed to correct an error in the Bill by updating a reference to the Worker Participation (State Enterprises) Act, 1977 and 1988. This is a drafting amendment, which the Minister has accepted.
Similar amendments appeared in the Air Navigation Bill. We express our thanks to the Deputy for his foresight.
Amendment agreed to.
Question proposed: "That section 18, as amended, be agreed to."
How many directors are on the board?
There are 12 directors, four of whom are worker directors.
Question put and agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Amendment No. 9 was ruled out of order for the reasons stated.
Amendment No. 9 not moved.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23.
Amendment No. 11 is consequential on amendment No. 10 and both may be taken together. Is that agreed? Agreed.
I move amendment No. 10:
In page 10, subsection (1), lines 45 and 46, to delete "and in such money (including money in a currency other than the currency of the State)".
These are technical amendments. Section 23 deals with the guarantee of Bord na Móna's borrowings. It is a standard provision in semi-State companies and empowers the Minister for Finance to guarantee up to £100 million of the borrowings of a company and, if necessary, the repayment of those borrowings. The amendments are required to clarify the text. The reference to "money" is inappropriate in its current position in the text and has been reinserted in a more appropriate position in the subsection. The intention is to make clear that the Minister for Finance will guarantee the repayment of money, including money in a foreign currency.
Amendment agreed to.
I move amendment No. 11:
In page 11, subsection (1), line 1, after "money" to insert "(including money in a currency other than the currency of the State)".
Amendment agreed to.
I move amendment No. 12:
In page 12, subsection (11), line 21, to delete "in money" and substitute "in respect of money borrowed".
This amendment sets out how guarantees in respect of borrowings should be treated. It is designed to clarify matters as guarantees cannot be given in money - one cannot say "I guarantee" with cash in the hand - but rather in respect of money borrowed. The amendment provides for the text to be amended accordingly.
Amendment agreed to.
I move amendment No. 13:
In page 12, subsection (11), lines 23 to 30, to delete paragraph (a).
This has a similar purpose as amendment No. 12.
Amendment agreed to.
I move amendment No. 14:
In page 12, lines 40 to 50, to delete subsections (12) and (13).
This gives the Minister for Finance power to borrow on the security of the Central Fund for the purpose of providing advances to him or her in the event that the company defaults on its loan repayments. The Minister for Finance already has general borrowing powers under Finance Acts to meet liabilities. Therefore, subsections (12) and (13) are unnecessary.
Amendment agreed to.
Section 23, as amended, agreed to.
Sections 24 and 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Is the managing director one ofthe 12?
Yes. A similar provision was added to the Air Navigation Bill whereby the chief executive officer or managing director would be included. The same measure should be included in the Bill relating to Aer Lingus when it is introduced.
Question put and agreed to.
Section 27 agreed to.
SECTION 28.
I move amendment No. 15:
In page 15, subsection (6), line 8, before "done" to insert "previously".
The amendment is necessary to clarify that if any scheme is annulled under the section, only acts taken previous to the annulment are protected. The word "previously" is used in section 3 in a similar context so it should be used in this section also.
It is a necessary technical adjustment.
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29.
I move amendment No. 16:
In page 16, subsection (1)(f), lines 50 and 51, to delete "shares of, or loans to," and substitute "loans to".
This amendment was suggested by the Department of Finance, which will immediately make everybody suspicious. However, its purpose is to rectify a drafting error. Under section 7 of the Turf Development Act, 1953, the trustees of the pension fund are restricted to making loans to the board. The amendment is designed to increase the flexibility of the trustees to make loans to enterprises other than to the board itself.
In drafting the provision a requirement for ministerial approval of normal equity investment by the trustees was inadvertently included. The current position is that such approval is not required and other semi-State pension funds are not subject to such a requirement. Investment decisions in this regard are a matter for the trustees and the pension fund manager. This flexibility would be frustrated by a requirement for ministerial approval of such investments. The provision is unnecessary and the purpose of the amendment is to delete it.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30.
Amendments No. 18 is consequential on amendment No. 17 and both may be discussed together by agreement.
I move amendment No. 17:
In page 17, subsection (1)(c), lines 12 to 14, to delete "section 15 (inserted by the European Assembly Elections Act, 1984) of the European Assembly Elections Act, 1977" and substitute "section 19 of the European Parliament Elections Act, 1997".
The amendments are necessary because the 1977 and 1984 Acts referred to in the Bill were repealed and replaced last year. The amendments substitute the correct up to date references. The Minister accepted two similar Labour Party amendments to the Air Navigation Bill.
I accept the amendments and thank the Deputy for his vigilance.
Amendment agreed to.
I move amendment No. 18:
In page 17, subsection (2)(c), line 22, to delete "section 15" and substitute "section 19".
Amendment agreed to.
Question proposed: "That section 30, as amended, stand part of the Bill."
The section refers to the payment of superannuation to directors. Do directors receive salaries?
I understand they receive £5,000 and the usual travelling expenses.
Is the maximum director's fee £5,000?
Yes. It is a nominal amount.
Do they pay superannuation?
No. Only the chief executive officer pays it, not the individual directors.
Does the chief executive officer receive £5,000?
No, because he receives a salary. He is an ex officio member of the board. Any director appointed by a Minister receives the £5,000 fee. It is a nominal amount and the board operates well on a tight budgetary arrangement. The sum is a nominal amount given the time involved in being a director of a company.
It is an antiquated amount.
They are all antiquated amounts.
Are there any plans to increase it? Will the Minister consider such a move?
Some are on lesser amounts and others do not receive anything.
Government guidelines control this area. The amounts appear to apply to all similar boards, such as the board of Aer Rianta.
Some directors on various boards receive nothing while others receive £2,500. The chairman receives £5,000. The top level of payment for any board member is £5,000 which is a nominal fee. However, people may serve better in that capacity rather than if they were paid a large salary because they must have other incomes.
They do it as a civic task.
Is there any provision to increase the amount?
No.
Can it be increased?
It is a Government decision. I cannot decide the directors of a particular company are very good and give the board members £6,000 or more. I do not have the right to take such action.
It is not covered by the legislation.
No. It is governed by Government order. The guidelines are interpreted by each Department.
I am confused because the directors of different boards are paid different amounts. There must be a method of regulating this area.
The board members of the Great Southern Hotel receive £2,500. It is a subsidiary of the Aer Rianta board. In general the boards of subsidiaries meet every two or three months while main boards meet every month. I presume more work is involved in main boards than in the boards of subsidiaries.
I presume worker directors also receive the nominal salary.
Yes. They also get an emolument for being a member of the board. This would not be docked from their wages if they attend a board meeting. It is regarded as a good thing for a worker director.
It is good that Deputy Daly is looking to the future.
Question put and agreed to.
SECTION 31.
I move amendment No. 19:
In page 18, subsection (7), line 46, after "who" to insert "knowingly".
I am worried that people may inadvertently become criminals. The word "knowingly" would ensure protection for people in that regard. The Minister had some sympathy for this point on the last occasion it was raised. However, I am not sure she is prepared to accept the amendment and I ask her to reconsider this area.
If one takes up a board appointment, one should know one's business and what the board involves. A person should be able to acquit himself or herself accordingly. I am not inclined to give latitude in this area. People should know their business
Amendment, by leave, withdrawn.
Section 31 agreed to.
SECTION 32.
Amendments Nos. 20 and 21 are related and may be discussed together by agreement.
I move amendment No. 20:
In page 19, subsection (1), line 13, after "authorised" to insert "or required by law".
The purpose of the amendment is to protect a person who gives out information when required to do so under the Freedom of Information Act, even if the company has not specifically authorised him or her to do so.
Does the Deputy mean give out information about the company?
Yes. If a person is required to give information under the Freedom of Information Act, even if he has not received prior specific instructions from the company to do so, the amendment seeks to ensure the person will not be prosecuted.
The second amendment inserts a much tighter definition of what should be regarded as confidential information. It is along the lines of the requirements of the Freedom of Information Act.
Does the Deputy mean exemptions?
Yes. Some information cannot be given out, even under the Freedom of Information Act. In the amendment "confidential information" means (a) trade secrets of the company or the subsidiary concerned; (b) financial, commercial, scientific or technical or other informations whose disclosure could reasonably be expected to result in a material financial loss or gain to the company or subsidiary concerned or could prejudice its competitive position in the context of its business or (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the company or subsidiary concerned.
Rather than simply saying "confidential information" we are defining it along the lines of the Freedom of Information Act, which will be applied to this Bill and this board in the near future in any event. The definition in the Bill is a pre-freedom of information one; it allows any information to be classified as secret. The law will not allow this any longer.
That definition of "confidential" is the one embraced by the Freedom of Information Act. I have sympathy with amendment No. 20. To my relatively non-professional eye it appears to help the situation. I will refer the wording to the draftsmen but it appears to be necessary. We all know what "confidential" means. We are seeking to ensure that nothing of a confidential nature which might be injurious to the company is released. I will re-examine amendment No. 21 also on Report Stage.
The old system allowed anything to be declared secret. Nothing is secret now except what is specifically declared to be secret.
I understand what Deputy Stagg is seeking to do but I would have thought that this was already covered in the Freedom of Information Act.
It applies to Government Departments but not to semi-state companies. It will be extended gradually to health boards and then further.
It would be wise, in anticipation of that, to make the Bill fit the Freedom of Information Act.
I understand Deputy Stagg's point. This Bill was drafted in his party's time in Government before the enactment of the Freedom on Information Act.
Things have improved greatly since then. At that time some draftsmen and officials thought the Freedom of Information Act would never come into effect. They now know it will. That is a credit to the Minister.
Yes, she deserves credit for that although it has made an amount of work.
I meant this Minister.
I thank Deputy Stagg. It is interesting how life can be made easier if freedom of information is embraced rather than avoided. We used see huge notes written on parliamentary questions saying they contained confidential information. One would often wonder what they contained.
In view of the last few contributions, it might be churlish to point out that the Fianna Fáil freedom of information Bill addressed this specific issue.
That was Deputy Roche's Bill.
Yes, indeed. The Bill was opposed by the previous Government.
That is being partisan.
The point being addressed here is a very good one. I argued that the current Freedom of Information Act is deficient. One of the deficiencies on the definition side is the very point Deputy Stagg has made. When things are being excluded from information it is necessary to be specific. If one is generous with words the range of matters excluded will become too wide. The sooner State-sponsored bodies are included in the Freedom of Informaton Act the better.
That will be fun. I acknowledge Deputy Roche's work on the freedom of information Bill.
Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section 32 agreed to.
Section 33 agreed to.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
This section deals with the establishment of subsidiary companies. Are there many of these?
They are referred to as operational divisions. There are four including a horticultural division.
Do these divisions now become subsidiary companies with chairmen and boards of directors?
They will. That will be discussed further because an amendment has been tabled on worker directors. There are now four operational divisions which will become subsidiary companies dealing with horticulture, peat, environment and solid fuel. They will all be re-organised with boards of directors and chairmen or chairwomen.
Section 34 agreed to.
Sections 35 to 40, inclusive, agreed to.
SECTION 41.
I move amendment No. 22:
In page 21, subsection (4), line 19, after "subsidiary" to insert "or by virtue of subsection (5)".
This amendment provides that where a person holds a share in a subsidiary for the purpose of complying with the minimum two members rule, he or she does so in trust for the company and not on his or her own behalf. This seems to be an important omission as a similar provision is inserted in section 41, page 8, line 20, the section which deals with shares in the company as a whole.
I accept the Deputy's amendment.
Amendment agreed to.
I move amendment No. 23:
In page 21, lines 29 to 49, to delete subsection (6) and substitute the following:
"(6) Shares in a subsidiary may not be issued or transferred to a person other than the Company or a person who holds them in trust for the Company without the consent of the Minister and the Minister for Finance, and the number of shares held by the Company in a subsidiary shall not be so reduced by such an issue or transfer (unless such reduction is authorised by Dáil Éireann by resolution) that the number of such shares held by the Company is less than a majority of the issued shares in the subsidiary.".
I will not move my amendment to the Minister's amendment.
Amendment to amendment No. 23 not moved.
Amendment agreed to.
Section 41, as amended, agreed to.
SECTION 42.
I move amendment No. 24:
In page 21, subsection (1), line 52, to delete "subsection (2)" and substitute "subsection (3)".
A clerical error has resulted in an incorrect cross-reference. This amendment makes the necessary correction.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43
I move amendment No. 25:
In page 22, lines 8 to 10, to delete subsection (1) and substitute the following:
"(1) The number of directors of a subsidiary shall be-
(a) in case the number of shares in the subsidiary held by or in trust for the Company is 100 per cent of the issued shares in the subsidiary, not more than 6, and
(b) in any other case, such number as may be determined by the Company with the consent of the Minister.".
Amendment agreed to.
I move amendment No. 26:
In page 22, subsection (5), to delete lines 20 to 22 and substitute the following:
"(5) Two of the directors of a subsidiary shall be persons appointed to be directors under the Worker Participation (State Enterprises) Acts, 1977 and 1988, who are willing to accept office, and".
I move amendment No. 1 to amendment No. 26:
In the third line, to delete "and 1988" and substitute "to 1993".
Amendment No. 1 to amendment No. 26 agreed to.
Amendment No. 26, as amended, agreed to.
Section 43, as amended, agreed to.
Sections 44 and 45 agreed to.
SECTION 46.
I move amendment No. 27:
In page 23, subsection (7), line 27, to delete "and 1988" and substitute "to 1993".
Amendment agreed to.
Section 46, as amended, agreed to.
SECTION 47.
Amendments Nos. 28, 29 and amendment No. 1 to No. 29 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 28:
In page 23, lines 28 to 32, to delete subsection (1) and substitute the following:
"(1) So much of the property (including choses-in-action) that, immediately before the transfer day in relation to a subsidiary, was held or enjoyed by the Company as may be determined by the Company and the subsidiary shall, on such day or days during the period of one year beginning on that transfer day as may be determined by the Company and the subsidiary, stand vested in the subsidiary without any further conveyance, transfer or assignment for all the estate, term or interest for which, immediately before that day, it was vested in the Company but subject to all trusts and equities affecting the property and capable of being performed.".
The main purpose of this section is to provide for the transfer of property to the new subsidiaries without the need for extensive individual assignment documentation. As currently drafted, the section does not provide for the transfer of land from the company to the subsidiaries and therefore is too restrictive. While it is intended that the bulk of the land will remain the property of the plc which will licence the use of it to the subsidiary, circumstances may arise where the formal transfer of some land to a subsidiary may be necessary. The amendment, by giving the company the power to transfer land to a subsidiary, will allow that flexibility.
The purpose of the proposed new subsection (2) which arises from the amendment is to allow the company to issue a certificate specifying that particular property vested or did not vest in a subsidiary as appropriate. Such certificates are to be regarded as conclusive evidence in the matter. These are pragmatic arrangements to provide for the conclusive documentary proof of property transfers in a legally acceptable manner.
What is choses-in-action?
Chose is a French word and means an intangible property.
This is an important section of the Bill because the case has arisen in other State enterprises as to how assets are valued on their point of transfer. Given that land and other property will be transferred to the subsidiaries——
They "may" be transferred.
is there a policy on their valuation? The performance of subsidiaries is very significant.
One of the extraordinary abnormalities in this country is the placement of headquarters of State sponsored bodies in Dublin. At one stage, 80 per cent of headquarters were in Dublin 2 or 4. In the case of this company which is wedded to the land, if it sets up subsidiaries, there should be a directive that the headquarters should not be in Dublin.
Bord na Móna's headquarters are in Newbridge.
I know, there was some kicking and screaming when they were dragged from their elaborate and pleasant headquarters in Baggot Street. Successive Governments gave directives that all State-sponsored bodies' headquarters should, in the interests of decentralisation, be outside the city centre.
All subsidiary headquarters should be in Athlone.
That would be lovely.
Athlone or Arklow. I could not care less so long as they are not all in Dublin 2 or 4.
Bord na Móna's headquarters are in Newbridge and the peat energy section's headquarters are in Tullamore.
Those are divisional headquarters. A general directive is necessary so that the headquarters of State-sponsored bodies do not creep back into the city.
They will not creep from Newbridge, they are in bog country.
I would not describe Newbridge as bog country, it is a sophisticated place. There should be a stipulation regarding headquarters in all this type of legislation.
We completed the Air Navigation Bill in the Dáil last week which deals with Aer Rianta. Its main function is to oversee the operation of airports, so it is proper that its headquarters are at an airport. They could not be in Westmeath where we do not have an airport.
What about Shannon, Cork or Knock?
Which headquarters are in Dublin 2 and 4?
It is not so many years ago since every State-sponsored body, except two, had its headquarters in Dublin city. I am surprised that anyone should suggest it is a question of being parochial. State-sponsored bodies belong to all the people and we should protect against the potential for headquarters locating in Dublin. At one stage there were 96 State sponsored bodies, all but two of which had their headquarters in Dublin.
The Deputy objected to me saying parochial. I should have said partitionist. In the aftermath of the British-Irish agreement we should be thinking in wider terms. Perhaps some of these institutions could locate in Northern Ireland, where there are plenty of bogs.
I support Deputy Roche. We are concerned about new subsidiaries. Bord na Móna moved to Newbridge, which was welcome.
It closed a briquette factory at the same time.
A Government decision was made that all new semi-State bodies would be established outside of Dublin.
There were directives from successive Governments.
We are concerned that in the event of the establishment of new subsidiaries, Bord na Móna will locate them in new areas, for instance, Ennis, Kilrush or Ennistymon.
Are there decent bogs there?
Amendment agreed to.
I move amendment No. 29:
In page 23, between lines 32 and 33, to insert the following subsection:
"(2) The Company may, on its own initiative, and shall on the application of a subsidiary, issue a certificate in respect of specified property stating, as may be appropriate, that the property-
(a) vested in a particular subsidiary on a particular day under this section, or
(b) did not vest in any of the subsidiaries under this section, and the certificate shall be conclusive evidence of the facts so stated.".
I move amendment No. 1 to amendment No. 29:
In the third line, to delete "conclusive evidence" and substitute "sufficient evidence until the contrary is proved".
The purpose of this amendment is to comply with the Constitution. The Supreme Court has ruled that evidentiary certificates which purport to be conclusive evidence are unconstitutional. The case to which I refer is Maher v. Attorney General - page 140, Irish Reports, 1973 - and the Supreme Court judgment of Chief Justice Fitzgerald. Like the section condemned in the Maher case, this section would be unconstitutional without the amendment. I ask the Minister to consider this.
I will deal with that on Report Stage.
Amendment No. 1 to amendment No. 29, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 30:
In page 23, subsection (2), line 34, after "transfer day" to insert "in relation to the subsidiary".
This is a technical amendment. It deals with the transfer of intangible property to the subsidiaries on the transfer day and eliminates the need to notify parties bound by chose-in-action action of such a transfer. The transfer day is the day on which a subsidiary commences operations. There could be different transfer days for different subsidiaries. The purpose of the amendment is to make it clear that the transfer of a chose-in-action to a subsidiary on the transfer day relates to the transfer day of that subsidiary and not of some other subsidiary. The term "chose-in-action" is used for intangible property, such as a desk. One can transfer it or sue in respect of it but one cannot take possession of it, as in the case of real property, such as land, or delivery of it, as in the case of goods and property.
Amendment agreed to.
Section 47, as amended, agreed to.
Sections 48 and 49 agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."
I withdraw my opposition to this section on the basis of an earlier discussion. Again, it is a legal matter.
Question put and agreed to.
Sections 51 to 55, inclusive, agreed to.
SECTION 56.
I presume Bord na Móna has a section that deals with archaeological and heritage matters. What is the extent of the board's involvement in this regard?
That is covered under the environmental section.
I presume the board keeps in touch with other State agencies, such as The Heritage Council and would contact them if, for example, a ring fort was found in a bog in which it operated.
Yes.
Does the board deal with such matters directly or does it get other State agencies to act on its behalf?
There is a requirement on the board to take heed of such environmental considerations.
Does this section create a new provision or is it a re-enactment of a previous provision?
We are in consultation on this with the newly established Department of Arts, Heritage, Gaeltacht and the Islands. It is a practical arrangement between the staff of Bord na Móna and the staff in the new Department. The matter arose when the new Department was established.
It appears to encroach on the responsibilities of other Departments.
I am advised there will be a partnership between Bord na Móna and the Department of Arts, Heritage, Gaeltacht and the Islands in this regard.
And the Commissioners for Public Works.
They get slightly frustrated from time to time.
If Bord na Móna complied with everything the Office of Public Works asked it to do it would never cut a sod of turf.
I half agree with the Deputy.
Section agreed to.
Section 57 agreed to.
SECTION 58.
Question proposed: "That section 58 be deleted from the Bill."
This section is no longer required because section 12 of the Finance Act, 1895, has recently been repealed.
Question put and agreed to.
SECTION 59.
I move amendment No. 31:
In page 26, subsection (2)(b), line 17, to delete "5 or".
This corrects a clerical error and provides that the existing Turf Development Acts will continue to apply to the new companies from the vesting day with the exception of certain provisions.
Amendment agreed to.
I move amendment No. 32:
In page 26, between lines 23 and 24, to insert the following subsection:
"(4) References in any enactment (other than the Turf Development Acts, 1946 to 1995) to the Board shall, on and after the vesting day, be construed as references to the Company.".
The provisions of the Turf Development Acts will apply to the new companies. The amendment provides that references to Bord na Móna in all other enactments will, from the vesting day, refer to the new company entitled Bord na Móna plc.
Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.
I move amendment No. 33:
In page 26, lines 24 and 25, to delete "and 1988" and substitute "to 1993".
Amendment agreed to.
Section 60, as amended, agreed to.
SECTION 61.
Amendments Nos. 35 and 36 are related to amendment No. 34 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 34:
In page 26, subsection (1), line 28, to delete "section 299 of the Income Tax Act, 1967" and substitute "section 312 of the Taxes Consolidation Act, 1997".
This is a technical amendment. It provides that the new company, subsidiaries and Bord na Móna are to be deemed to be members of a group so that they can avail of the tax provisions which are available on the reorganisation of a company. It is helpful to them in respect of the Income Tax Act, 1967, and the Corporation Tax Act, 1976, which have been consolidated under the Taxes Consolidation Act, 1997, which was enacted on 30 November.
Amendment agreed to.
I move amendment No. 35:
In page 26, subsection (2), lines 32 and 33, to delete "section 20 of the Corporation Tax Act, 1976" and substitute "section 400 of the Taxes Consolidation Act, 1997".
Amendment agreed to.
I move amendment No. 36:
In page 26, subsection (3), lines 37 and 38, to delete "Parts XI and XII of the Corporation Tax Act, 1976" and substitute "Chapter 5 of Part 12, section 456 and Chapter 1 of Part 20 of the Taxes Consolidation Act, 1997".
Amendment agreed to.
Section 61, as amended, agreed to.
Section 62 agreed to.
NEW SECTION.
I move amendment No. 37:
In page 26, after line 40, to insert the following new section:
"63.-With effect from one year following the passing of this Act, the Freedom of Information Act, 1997, shall apply to the Company and its subsidiaries as if each of them stood prescribed pursuant to the regulations made by the Minister for Finance for the purposes of paragraph 1(5) of the First Schedule to that Act.".
The purpose of the amendment is to apply the Freedom of Information Act to Bord na Móna. Presumably the board will not have too much difficulty with the Act. I ask the Minister to buck the trend and accept the amendment. It would not rock any boats and in doing so she would set a trend for other Ministers to follow.
I am sure I would. There is to be an unfolding of the Freedom of Information Act. Its provisions affect all Departments and will also affect health boards, education boards and other such bodies. There is a programme in this regard over which I do not intend to extend my writ, much as I would like to.
The question of worker directors on subsidiaries was raised by Deputy Stagg and others on Second Stage. We have rectified the position by an amendment.
I am happy with the Minister's amendment, which meets the requirements of the Bill.
The points about worker directors and majority shareholding were put to me at the meeting we held with the union members. The company and those who work in it are progressive. They deserve every praise.
Amendment, by leave, withdrawn.
TITLE.
Amendment No. 38 not moved.
Title agreed to.