Transport (Railway Infrastructure) Bill, 2001 [Seanad]: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 5, line 23, to delete "Railway" and substitute "Light Railway and Metro Railway".
The purpose of the amendment is to ensure what the Minister outlined in the Seanad will be the reality. On Second Stage she stated: "The Bill is concerned with the operation of Luas and the metro, although I am more than willing to listen to the views of all Members who contribute, and is not concerned with heavy rail." A similar amendment was tabled in the Seanad when the Minister suggested the Bill would also deal with Luas, the metro and any new heavy rail lines. That was not the understanding of those who attended the transport forum to discuss and reach agreement on the legislation with the Minister. The reason the amendment has been tabled is to copperfasten her comment in the Seanad.
Has the Deputy concluded?
Perhaps I will repeat my point as the Minister was not listening.
The trade unions and others held discussions and reached agreement with the Minister on the legislation in advance of its introduction in the Seanad where on Second Stage she stated: "The Bill is concerned with the operation of Luas and the metro, although I am more than willing to listen to the views of all Members who contribute, and is not concerned with heavy rail." That is a specific commitment. When a similar amendment was tabled on Committee Stage in the Seanad the Minister implied the legislation would also cover all new heavy rail lines including, for example, the proposed line through Senator Glennon's constituency.
The kernel of the Deputy's contribution is correct. The Bill is about Luas and the metro on which I made a public commitment in the Seanad and to the trade unions. That remains the position. There are three elements to the legislation: the establishment of the Railway Procurement Agency; the railway order procedure; and the regulation of on-street light railway. While the remit of the agency will only cover light railway and the metro, the railway order procedure provides for the development of all railway infrastructure. The agency will make applications for light railway and the metro while CIE will make applications for heavy rail developments. Acceptance of the Deputy's amendment would have the effect of limiting the scope of the entire Bill, excluding any further applications from CIE for an order for the construction of heavy railway infrastructure from the railway order process detailed in Part III.
In addition, section 3 repeals the railway works order procedures under which CIE currently applies to construct railways. Acceptance of the amendment would leave CIE in limbo and force it into normal planning permission procedures. Under various railway Acts, culminating in the Light Railway Act, 1996, CIE does not have to go through the planning process. It has the right to hold an inquiry, similar to the O'Leary inquiry. I give the strongest commitment that the Railway Procurement Agency will cover Luas and the metro. I know Deputy Stagg's amendment is well intentioned, but its inclusion would mean CIE having to apply for planning permission from the county councils through whose administrative areas a new line from Dublin to Navan, for example, would run.
I was of a mind in the beginning to oppose the Bill tooth and nail because it is the first step towards or the thin end of the wedge in the privatisation of Iarnród Éireann. There is no doubt this is the case. However, the Minister limited the Bill specifically to the metro and Luas and said in the Seanad that heavy rail would be excluded. She did not say future heavy rail. The acceptance of this amendment will require additional consequential amendments to deal with the points the Minister made and ensure CIE and Iarnród Éireann do not become subject to the normal planning process. Nonetheless, a commitment was given by the Minister in honesty and good faith.
If the limitation the Minister indicated would be placed on the Bill is not included, the effect will be to bring other heavy rail, especially new heavy rail, into the ambit of this agency and take it out of the hands of Iarnród Éireann. The only reason the Minister gives for not including the limitation is that it would push Iarnród Éireann into the normal planning process. I do not want to do that and I accept inclusion of the amendment would require further amendment of the Bill.
I am aware of the Deputy's belief and his motivation in tabling the amendment. I have no reason to doubt the sincerity of that. However, if the amendment is accepted, its effect would be that the railway order procedure, which is Part 3——
——and which provides for the development of all railway infrastructure, including CIE existing and future heavy rail, if there is an expansion, would not apply to CIE. I would not like to make the organisation subject to normal planning permission procedures because every country allows its rail companies to have different ways of dealing with these issues rather than through normal planning permission procedures.
Perhaps the Deputy might like to table the amendment again on Report Stage or we will try to see if there is any wording we could formulate with the parliamentary counsel which would have the effect the Deputy seeks without making CIE subject to planning procedures.
That is what I seek to achieve. I would not have supported the Bill in its original form where Iarnród Éireann's procurement powers were removed from it and given to an outside quango. I am not sure why there is not faith in Iarnród Éireann to do the job if it has the resources.
It has the resources at this stage.
Perhaps it does; I do not know. Various resources are required for this. If a quango can put the resources together, I do not know why Iarnród Éireann cannot.
I have accepted this limited version of the Bill as presented by the Minister to the Seanad and Dáil. The Minister was very clear in her statement in the Seanad and I want that clarity in the Bill in fairness to the people who understood clearly that was the limit of the Bill. They convinced me to accept the principle of the legislation on this narrow basis. The amendment broadens that principle and it is possible, without huge changes, to amend the Bill to ensure Iarnród Éireann is not required to seek planning permission every time it wants to lay a sleeper.
We will discuss this between now and Report Stage.
There are good intentions in this regard.
Does the Deputy accept that?
I will ask one of my officials to contact the Deputy when we have spoken to the Attorney General's office.
Deputy Stagg will be able to reintroduce the amendment on Report Stage.
I will, but I hope the Minister will——
The Deputy wants absolute clarity without pushing CIE into the planning permission process.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2:
In page 6, subsection (1), line 11, after "appointed" to insert "by the Minister".
This is a technicality. The Minister is normally mentioned in this section in most legislation. Perhaps it is something which should be taken on board.
Both Deputies have very good people formulating their amendments. It is a technicality and I accept it as such.
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
I move amendment No. 3:
In page 7, after line 40, to insert the following subsection:
"(3) Notwithstanding the repeal of sections 2 to 11 of the Act of 1963, where an application for a railway works order has been made and not determined immediately before the repeal of those sections, then those sections continue to apply to the application until its determination.".
Section 4 as drafted does not allow for cases where an application for a railway works order has been made under the 1963 Act but has not been determined prior to the enactment of the Bill. CIE has indicated that it will submit an application for a railway works order for some minor works at Drogheda in the immediate future. This is why it has asked for this amendment. Section 3 repeals the relevant provisions of the 1963 Act. The parliamentary counsel has advised that the amendment is necessary if CIE is to avoid having to make a fresh application if the Bill is enacted prior to the issuing of a railway works order for the Drogheda works.
It is an interim measure.
Yes. It is to carry it over.
Amendment agreed to.
Section 4, as amended, agreed to.
Sections 5 to 8, inclusive, agreed to.
SECTION 9.
I move amendment No. 4:
In page 8, lines 24 to 33, to delete subsections (1) and (2) and substitute the following:
"(1) References in this Act to the Agency shall be construed as references to Córas Iompair Éireann.".
The amendment seeks to put the powers and resources it is suggested would be necessary and available for this agency under the remit of Córas Iompair Éireann. There is no need to set up another quango or for this form of privatisation of a piece of Iarnród Éireann. We do not need the luxury of another board to do what can be done effectively by the existing agency, namely, Córas Iompair Éireann. I am anxious the relationship between the State and the provider of public transport will continue. I am fearful that what we are doing today will move us away from that position and eventually leave public transport in the hands of the private sector. We know from experience elsewhere what that will lead to in regard to rail travel and the whole area of safety on which the Minister is particularly strong and for which I give her full credit. I am not saying she is not strong in other areas, but she has been very effective in obtaining money for safety systems. Given the experience in Britain, of which we have first hand knowledge, I am worried about privatising the functions of Coras Iompair Éireann. There is no good reason to do so. There may be a need for an agency within Coras Iompair Éireann to do this job and to which my amendment would give effect.
I support the amendment. I notice the Minister has plans to break up CIE and have Iarnród Éireann as a stand alone company.
Bus Éireann and Dublin Bus also.
I would like to see this being done and possibly Iarnród Éireann being restructured and reorganised. However, I am worried about different agencies running the rail network. As Deputy Stagg said, we know what happened in Britain when that occurred. It is important to have one seamless organisation involved. I would be concerned about conflict and breakdown in communication between different agencies because this seems to be what happened in Britain with devastating results. We must be very careful to ensure something similar does not occur here whereby two agencies might be involved in procuring track infrastructure and possibly running the rail network.
No, that would only apply in emergency situations by operators.
I would prefer to see Iarnród Éireann being taken by the scruff of the neck, so to speak, and sorted out. Otherwise the agency may begin to take over by stealth the running of the rail network. I would like to see Iarnród Éireann being restructured, reorganised and modernised. Many of its management structures need to be examined. I would like to have seen the Minister go down that road. The amendment might be one way of doing this rather than establishing another board or layer of bureaucracy. There is merit in what Deputy Stagg suggests which perhaps could be considered. Another board will add to the time it will take to make decisions, including the overall cost. Perhaps the Minister will consider this aspect.
Just before the Minister replies, I have a view on this issue. I am surprised at the amendment. I understand the rationale behind it is to prevent privatisation by stealth or the opening of a trap door for privatisation. However, I do not think that will happen. When a group of us looked at the French model there was a very clear need for a functionally focused body in the procurement area. It seems that the amendment, if accepted, would effectively viscerate the heart of the Bill.
While Deputy Stagg's motive in tabling the amendment is sincere, if it was accepted, we might as well close our books and leave the room. The Railway Procurement Agency Bill has nothing to do with doing things by stealth. I gave a firm commitment to the ICTU, which I repeat here. I wrote to SIPTU and the ICTU stating the Government is not privatising Iarnród Éireann. What happened in the United Kingdom was that the rail network was sold off piece by piece and nothing was done to the tracks which were in a disgraceful condition. This resulted in several crashes. The company which bought the line in question wanted to make money and did not invest in the railway track. The Government is not proceeding with the privatisation or selling off of Iarnród Éireann which could not be done by stealth. If a future Government wants to do so, it will have to be done by way of legislation. It could not possibly happen by stealth.
This proposal relates to the metro and Luas, not a heavy rail system. The amendment would remove the means to establish a railway procurement agency with the result that CIE would remain the agency responsible for procuring light railways and the metro. Under the NDP, CIE already has a railway investment plan in excess of £680 million for heavy rail and the DART. The Railway Procurement Agency will focus on specific light railway and metro proposals.
The Route to Success, the ICTU's policy platform for trade unions in the public transport sector, supports the following proposals: first, the retention of Irish Rail in public ownership, with which I agree and on which I engaged in correspondence with them; second, it refers to the operating and infrastructure sides of the company, consolidated under a single company structure, with which I agree. The three wise men also agreed with this aspect. The ICTU also agreed with the creation of a railway procurement agency with a remit to procure an operator for Luas and ensure the development of the metro in Dublin which could involve the use of a PPP. The third point referred to the creation of a railway safety agency. I will be bringing that Bill to Cabinet on Tuesday.
The Minister is painting a very strange picture whereby there will now be two procurement agencies for railways, one in CIE and a new one for two different sections of railways. It would have been better if she had the courage of her convictions in the first instance and did not agree with the trade unions. We should have one agency, not duplication. It will be amazing if there are two railway procurement agencies. My amendment proposes one agency to include all the functions described in the Bill. CIE should be enhanced and given the functions described in the Bill.
Despite what the Minister said to the trade unions and the ICTU, we are dealing with the privatisation of a function of CIE which is being taken away from it and given to another agency with the express purpose of facilitating further privatisation, like PPPs, a form of privatisation. This idea is going out of fashion because the research on the results of PPPs in other countries where they have been the norm for some time shows that they are very bad value for money from the citizen's point of view. I will not be convinced by the notion that we can have a PPP because there is a quango established to perform a function previously within the remit of CIE. Will the Minister tell us the reason there is now a need for two agencies?
The Deputy said this work was previously done by CIE, but then there was no Luas or metro. The new transport proposals will come within the remit of the Railway Procurement Agency. Legislation must be prepared in order for Iarnród Éireann, Bus Éireann and Bus Átha Cliath to remain as Deputy Stanton suggested. The Railway Procurement Agency is being established to procure Luas and the metro.
Of course it is not a new area. It is just an expansion of the existing area, in which the Iarnród Éireann procurement section would have been involved. The fact there are new tracks does not mean the procurement section could not be expanded, enhanced and given the additional role outlined in the Bill. It is the case, as the Minister should state clearly, that she does not have confidence in CIE to do the job. I do, if it is given the resources.
If it gets the resources.
It has a £680 million plan under the NDP. That is a considerable sum. What it never had before, it now has - real money. I am glad about this. To give it its due, whenever it speaks it mentions it. I cannot accept the amendment.
If it has the resources, there is no reason in the world not to do what we are suggesting, that is, have one rather than two agencies.
I can think of tens of thousands of commuters who might not agree, but we have reached a fundamental point.
Chairman, you are not supposed to be taking sides.
You are not down here now.
I am simply observing what commuters have said.
You should remember that you are in the Chair.
Amendment put.
The Select Committee divided: Tá, 1; Níl, 8.
Níl
- Alyward, Liam.
- Brady, Martin.
- Carey, Pat.
- Collins, Michael.
- Killeen, Tony.
- O’Rourke, Mary.
- Power, Sean.
- Roche, Dick.
I move amendment No. 5:
In page 8, between lines 36 and 37, to insert the following subsection:
"(4) The Agency shall, subject to the provisions of this Act, be independent in the exercise of its functions.".
This is a technical amendment which provides that the agency will be independent in exercising its functions. It is important that we copperfasten the independence of the agency. We are setting up an agency and it is important to work out how it will relate to other agencies. In the context of the agency being involved in procurement we must consider that CIE has a lot of information regarding rail infrastructure. We should have clear lines of definition between Iarnród Éireann, CIE and the new agency. There should not be too much overlapping or cross-communication, as occurred in the context of electricity regulation. If an independent agency is set up there must be clear lines between it and other bodies so that information does not flow from one to the other to the detriment of suppliers and others who may want to be involved in railway infrastructure, as is envisaged later in the Bill. In light of what happened in the electricity sector it may be necessary to flesh the matter out further, but I want to raise the issue through this amendment.
I accept the amendment. This was always meant to be an independentagency.
I am fearful in another respect, namely that we may have rivalry between two agencies doing somewhat similar jobs. That worries me, as we have seen the effects of such rivalry between State agencies which have overlapping functions on a regular basis; there is great waste involved. The Minister is trying to get them to co-operate with each other in the public interest rather than in their own interests. I wonder about this word "independent" - independent of whom? Does it mean being independent of the Dáil or the Minister?
There are later amendments on that matter.
The Minister is accepting the word "independent", but who will this agency be independent of? What is intended here?
It was always our intention that this would be an independent agency. In other words, it would not have any link with and be independent of CIE. Deputy Stagg mentioned rivalry. I had always accepted it would be anindependent agency and inclusion of theword——
Does the Minister mean separate rather than independent?
Separate means physically separate.
If it is meant to be separate from CIE we should say that. Otherwise the intention might be read differently, as implying being independent of the Minister and that the Minister, operating on behalf of the public, would have no say in their affairs.
No, there are later amendments on this matter.
There is also a proviso that refers to being "subject to the provisions of this Act".
That is the redrawn section.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Amendment No. 7 is consequential on amendment No. 6 and they are to be taken together.
I move amendment No. 6:
In page 9, subsection (2)(b)(ii), lines 1 and 2, to delete “authorised by the Agency to act in that behalf.”.
These are technical amendments, included at the suggestion of the parliamentary counsel, to correct typographical errors made in the bills office.
I read re-read this to find the difference between what was deleted and what was inserted and I could not find a comma or an i without a dot. What is the technical change being made?
It refers to page 9 of the Bill. There is a reference to the staff of the agency and the parliamentary counsel felt that a separate line should be used. Do not ask me why. I do not understand it and I do not pretend to. He said it was a typographical error that would have to be remedied. I have often given my views on Committee Stage of parliamentary counsel. They look on every Bill and decide they want to spend more time making something prettier, and the result is an amendment like this. One has to keep them happy or they will not do the work.
How will the Bill now read? Will it state "authorised by the Agency to act in that behalf."?
We have to look at pages 8 and 9. There is a reference to the seal of the agency being authenticated by the signatures of those mentioned, and to a member of the agency or a member of the staff of the agency. It then states "authorised by the Agency to act in that behalf."
I do not understand it myself. It is the text as drafted but with this change.
Amendment agreed to.
I amendment No. 7:
In page 9, subsection (2)(b), between lines 2 and 3, to insert the following:
"authorised by the Agency to act in that behalf.".
This brings together subparagraphs (b)(i) and (ii), which are qualified by “authorised by the Agency to act in that behalf.” Originally that only applied to subparagraph (ii) allowing a member of the agency to act without the authority of the agency.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
I move amendment No. 8:
In page 9, subsection (1), between lines 12 and 13, to insert the following:
"(b) to monitor and publish regular reports on the safety of railway infrastructure generally;”.
The Minister has a Bill somewhere about rail safety.
Yes, it is due next week.
We are waiting a long time for it.
I am bringing it to Cabinet on Tuesday.
The Minister dealt with a similar amendment in the Seanad and said clearly that if this Bill was processed and an agency was in place, as it will be, before the Bill on rail safety, she would include this amendment.
I remember that debate with Senator Ryan or Senator O'Meara.
It was with Senator Quinn, who was acting on behalf of the Labour Party that day.
The Minister stated that, if the railway safety Bill was delayed more than she had hoped, she would accept this amendment on a temporary basis. I am not sure it is worded in a manner which would suit that situation.
The Deputy is correct. I remember the conversation. As the railway safety Bill is being brought to Cabinet next Tuesday, it will be printed by Friday. I stated that, if the Bill was delayed, the proposal in the amendment could be accepted, and the functions later transferred to the railway safety agency. I see nothing wrong in that respect, but will have to check the wording with the office of the parliamentary counsel.
The amendment proposes that the railway safety agency would "monitor and publish regular reports on the safety of railway infrastructure generally." I would have no difficulty with this proposal as an interim measure until the agency is up and running. I hope the railway safety Bill will be ready by the end of January. However, the agency will then have to be established, which will take some time. We will check the wording, but I will accept the amendment as an interim measure until the agency is established. I gave such a commitment in the Seanad.
The Minister stated that, in the unlikely event of it coming into being before the railway safety Bill starts, we would then look at giving such powers to the agency. It was useful to have the benefit of the Minister's thoughts in another forum before Committee Stage of the Bill in the House.
We will have to decide on our approach as we will have to check the wording.
I will withdraw the amendment and leave it to the Minister to draft the suitable wording before Report Stage.
I accept the principle enunciated by the Deputy as an interim measure.
I agree with this proposal as an interim measure. However, it might be useful if the procurement agency also took account of safety. Such a provision should be included in the Bill. A railway safety agency is about to come on stream, but it might be useful if the procurement agency also had a safety function. I do not know how this would be achieved, but we should provide that the agency would take account of safety needs.
The principle is accepted as an interim measure and we will decide on the wording before Report Stage.
Is the Minister taking on board my comments that the procurement agency should also have a function regarding safety issues?
I am sure it would have to have regard to those issues as part of its function.
I presume the agency would subsequently be bound by the safety regulations under the new safety legislation.
That is correct. The new railway safety agency which will be established under the Bill will go further than was suggested in the United Kingdom. It is advanced legislation. We will agree on the wording and come back to the issue on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 9, lines 40 and 41, to delete subsection (7).
Section 11(7) was not included in the original Bill. It provides that the agency may only act as an operator of a railway where authorised by the Minister by order and so on. It gives the agency the power to act as an operator. The Minister stated this would only happen in emergency situations, but will she clarify how she envisages this taking place?
I accepted section 11(7) as a Labour Party amendment on Committee Stage in the Seanad. It is not intended that the agency will be an operator, except in exceptional circumstances such as in the case of an operator going bankrupt. The original Seanad amendment was suggested to allay fears in CIE that the new agency was being established to operate as a public transport operator in its own right. That is not the case. This amendment seeks to delete a proposal which I accepted in the Seanad. I do not propose to delete the section.
I tabled the amendment as I was unclear as to the circumstances in which the agency would function as an operator. The Minister referred to an emergency situation or where an operator goes bankrupt. This is one example.
This issue was discussed with Senator Costello, but the amendment was in my name. I think the Senator proposed the principle and I came up with the wording. I do not propose to delete a section which we added in the Seanad. That would be silly.
Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."
The core of this part of the Bill concerns the functions of the agency. The Bill stipulates that the agency may receive income, but it is not clear from where it will get this income or what it will do with it. Apart from Government funding, from where will the agency get the income?
The funding provided for the agency for next year is for establishment costs. The income will derive from fares on Luas and the metro.
Question put and agreed to.
SECTION 12.
Amendments Nos. 10, 15 and 39 are related and will be discussed together.
I move amendment No. 10:
In page 10, subsection (2), line 5, to delete "1999" and substitute "2001".
These are technical amendments included at the suggestion of the parliamentary counsel. Since the publication of the Bill a new Companies Act has been passed necessitating a change in the wording of the Bill to read "the Companies Acts, 1963 to 2001," rather than "the Companies Acts, 1963 to 1999."
Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
Is the agency expected to make a profit at some stage?
Question put and agreed to.
Sections 16 to 18, inclusive, agreed to.
SECTION 19.
Amendments Nos. 11 and 18 are related and may be discussed together.
I move amendment No. 11:
In page 12, after line 52, to insert the following subsection:
"(7) The Minister shall make information on the finances and operation of the Agency available to Dáil members in response to parliamentary questions and that the Agency shall co-operate in the matter when requested by the Minister.".
This issue arose on a number of occasions in the House and was referred to by a number of Deputies. There are many agencies which spend public money and are responsible for property belonging to the State. However, when Deputies seek information on these agencies they are told the relevant Minister has no responsibility to the House regarding the matter.
We accept that the Minister has no responsibility to the Dáil regarding the day to day operations of many of these agencies. However, Deputies should have the right to obtain by way of parliamentary question information pertaining to those agencies as long as it does not relate to their commercial activities, competitive tendering processes, etc. We should be in a position to obtain information regarding their general activities. The agencies should, under the law, be obliged to make such information available to the Minister to communicate to the House when requested. I have not seen such a provision in previous legislation.
Agencies such as that with which the Bill deals are obliged to appear before Oireachtas committees. However, they are usually only required to do so once a year and there are issues that arise in the interim. Members of the public seek information through their representatives which is difficult to obtain because if we write to the agencies it may take some time for a reply to issue. In addition, we may not be given the information requested. We should be allowed to obtain such information. Many Deputies from all sides of the House made this point on Second Stage. That is why I tabled the amendment. Perhaps the Minister will take it on board.
I have tabled a similar amendment which states that "The Minister shall be accountable to Dáil Éireann for the actions of the Agency and shall answer parliamentary questions in respect of its functions." and that "Members and staff of the Agency shall appear whenever requested to do so by a committee of the Houses of the Oireachtas or either of them". We have discussed this matter at great length on each occasion we have established an outside authority to take responsibility which previously rested with the Dáil. We have been fortunate that during her term of office the Minister has been willing to answer questions in the Dáil which she was not technically obliged to answer. We could, therefore, raise issues about CIE and would not receive a letter from either the Department or the Ceann Comhairle stating that they were matters for the board of the company and that the Minister had no responsibility to the Dáil in the matter.
Good practice has been established in respect of obtaining information about the agencies for which the Minister is responsible. However, that is not the case where other Ministers are concerned. If other Members of the Government can find a way of refusing to answer a question they will do so. For example, it is virtually impossible to ask a question about local government because the matter raised is usually the responsibility of some outside agency and the Minister will not provide an answer. The position is similar in relation to health boards.
There has been a large degree of consensus in the debate on Dáil reform. The package is virtually ready to be put forward——
When will it be announced?
The Whips are the driving force behind it and we are hoping to be able to present it to the parties before the end of January for their approval. We will, hopefully, be able to implement it on the first day the Dáil returns after the Christmas recess, but perhaps I should not say that.
One of the elements of the package we have agreed is that Ministers will be required to answer Dáil questions about any agencies under their remit or within their area of competence. Under current regulations or law, Ministers are not responsible for answering such questions. The Minister with whom we are dealing now has always answered such questions and I do not believe she has ever refused to answer a question on the basis that she has no day to day responsibility for the operations of a particular agency. However, I have received many such refusals from other Ministers. We are trying to ensure that this will no longer be the case.
It makes it much easier for an agency such as that which we are going to establish if information about its operations can be obtained. I encourage the Minister to consider this matter because these agencies, which have separate powers, should not be completely divorced from the Oireachtas in terms of their operations.
Under the second part of my amendment, members and staff of such agencies would be obliged to appear before Dáil committees. There is a degree of uncertainty at present about the way the committees operate but, if they return after the election and operate in the manner envisaged by the Oireachtas, witnesses could be summonsed to appear if they do not do so voluntarily. The first part of the amendment states that the Minister shall be accountable to Dáil Éireann for the actions of the Agency and shall answer parliamentary questions in respect of its functions, which would go a long way towards meeting the argument regularly put forward by Members about the fact that they are unable to obtain information and that Ministers are not accountable for certain matters.
I wish to read into the record the two amendments because they are quite similar. Deputy Stanton's amendment states that "The Minister shall make information on the finances and operation of the Agency available to Dáil members in response to parliamentary questions and that the Agency shall co-operate in the matter when requested by the Minister.", while Deputy Stagg's states that "The Minister shall be accountable to Dáil Éireann for the actions of the Agency and shall answer parliamentary questions in respect of its functions.", and "Members and staff of the Agency shall appear whenever requested to do so by a committee of the Houses of the Oireachtas or either of them".
The second part of Deputy Stagg's amendment is already contemplated in the Bill under section 19(6) which states that "From time to time, and whenever requested, the Agency shall account for the performance of its functions to a Committee of one or both House of the Oireachtas and shall have regard to any recommendation of such Committee relevant to its functions."
I accept what the Minister is saying, but we had a difficulty with the subsection because we are unsure of the meaning of the phrase "shall account". Under this subsection, the agency might only be obliged to send a letter or to submit the annual report.
No, that is not the case.
That is why the amendment is more specific.
To return to Deputy Stanton's amendment, I would have no difficulty in making available information regarding the agency's finances because it will be obliged, in any event, to submit six monthly and yearly accounts. However, I have a difficulty with information about its operation. For example, one could not answer questions about why the 8.05 a.m. metro from Dublin airport to the city was late on a particular day. I am not obliged to answer questions regarding why the No. 13 bus did not show up at a particular time.
The value of committees is that we can tease out matters of this nature. I accept what the Minister is saying about my amendment, which differs somewhat from Deputy Stagg's which states that the Minister "shall be accountable". In framing my amendment I was trying to avoid the possibility that charges of political interference might be made.
Under Deputy Stagg's amendment - which states that the Minister shall be accountable to the Dáil for the actions of the agency - the Minister will be responsible to the House for whatever the agency does or does not do. My amendment states that the Minister shall make information available, it does not state that she shall be accountable. There is a thin line between making information available——
If one answers, one is accountable.
No, you are not. You are merely providing information or acting as a conduit for its provision.
I have no difficulty with the general thrust of the amendments. I am of the opinion that if one is asked questions in the Dáil one should answer them because part of one'sjob is to be accountable. I could never understand——
We are afraid that we will lose the Minister's services after the election and that her successor will not follow her example.
I do no wish to criticise Deputy Owen, but on one occasion she stated that her party was going to drag me into the Dáil. I never had to be dragged into the House, I have always gone there quite willingly because it is part of my job and it is what I am paid to do. How can one act in the manner outlined in the amendments without being accused of interfering?
I do not believe a Minister, who is after all elected by members of the public, can interfere. Ministers have a duty to interfere when things are going wrong and also to ensure that they are going well. I believe in democracy and in the Minister having the power to intervene when required to do so. With regard to the phrase "accountable to the Dáil", my legal advice is that it means the Minister will be required to give an account to the Dáil——
——but does not have a responsibility for it. The Minister will only be required to give an account. That is the meaning of that phrase.
That is an interesting difference. The point of establishing a State sponsored body is to remove an area of public administration from the concept of ministerial responsibility——
——where the Minister is not responsible, that is, the Minister is not answerable in the sense that he or she takes responsibility. It is an interesting differentiation. There was a famous incident in the Dáil in 1961 where this issue of accountability arose. It arose again in the case of the removal of a judge from the Special Criminal Court a number of years ago - a controversial issue in which letters were lost. Deputy Stagg told us that the Whips are going to devise a formula in the new year. Most Members of the House have often felt frustrated that the State bodies are impenetrable. However, if these amendments were accepted, would they not run counter to the objective unless there was a new definition for accountability in the legislation?
When the semi-State bodies were set up, some were commercial and some were not. I have been perplexed by this area. I can understand that a Minister should not have to answer for the No. 13 bus being late or not turning up. That would be daft.
Maybe we are too ready to accept trains and buses running late and people being seriously discommoded. Perhaps if somebody was accountable in a certain way, these services would be run on time and efficiently.
No, I must draw a line. I do not intend to come to the Dáil or the Seanad and explain why the No. 13 bus did not run. The Deputy may do it when he becomes a Minister but I will not.
They will probably run on time then.
Mussolini said that if he were a Minister the trains would run on time.
They did run on time under him.
Look at what happened to him.
He also pretended he could play bridge and had himself photographed with a bridge hand in front of him. He thought he was smart.
I have sympathy with the thrust of the amendments but not with the over-reaching nature of what the Minister would have to tell.
Will the Minister consider what we are saying? I believe she accepts the principle involved. We will withdraw the amendments on the understanding that the Minister might come back with something suitable next Thursday. It would be a good idea, from the point of view of Dáil reform, if a Minister said that type of thing. The Minister has it in practice in her Department.
That is a good suggestion. Ministers differ. I served under many Ministers and some Ministers use the concept of ministerial responsibility to avoid ever answering a question. This Minister has never operated that strategy but, unfortunately, not all the Minister's colleagues are the same.
However, one is then accused of being a nosey parker or of being interfering or interventionist. One is accused of all the nasty things people can dream up. We will try to make a shift——
I say a lot of nice things too.
Of course. I laughed at Deputy Noonan. He wanted me to intervene with regard to the menus at Bunratty Castle.
The Minister is a dab hand in the kitchen.
This is an important issue. It touches on the single bone of contention that always arises when we are setting up an agency.
Let us see if we can arrive at a wording that will embody both amendments.
Okay. We will withdraw them on that basis.
I did not intend to demand the type of detail the Minister mentioned regarding timetables and the like. The overall operation at macro level, however, is important
Amendment, by leave, withdrawn.
Section 19 agreed to.
SECTION 20.
Amendment No. 13 is an alternative to amendment No. 12. Amendments Nos. 12 and 13 can be discussed together. Is that agreed? Agreed.
I move amendment No. 12:
In page 13, subsection (1), line 1, after "members" to insert ", at least 2 of whom shall be elected by the employees of the Agency,".
This amendment is self explanatory. The desirability of having worker directors has been tested and proven over a long period of time. Worker directors have been an invaluable, additional resource and give a stakeholding to employees. They appear to have gone out of fashion under the current Administration with all sorts of alternatives such as experts, shareholders, directors or some other systems being suggested. I do not know why that is so. In my opinion, the worker director system worked extremely well and where it still exists it works well from the public's point of view in getting agreements, information and an input from the people who work in the companies. I do not know why the system is resisted.
There was an amendment in the Seanad which allowed trade union representation on the board. I do not know how many or how they might be appointed but I do not equate trade union representation with worker directors and would not accept it as being equal. I do not know what is intended under the provision. Is it the shop steward or somebody from the floor? What type of trade Unionist must the person be? Must it be a full-time official or must they have a degree? I do not know what is meant by the provision or what is meant by trade union representation.
Deputy Stagg said what I intended to say. It would enhance the agency if the workers had a member on the board. It also helps where accountability is concerned because workers would bring a different perspective. It would a degree of ownership of the agency to the workers in that they would feel they have somebody at court, as it were, to whom they could talk and who would represent their views. We have seen occasions where worker directors have acted virtually as whistle blowers in some instances and that is important for balance. I am not concerned whether there is one or two but it is important to have worker directors in the agency. It would be a positive addition.
On Committee Stage in the Seanad there was no mention of trade unions or trade union representatives. We inserted that provision. There is a representative from ICTU, Tom Wall, on the board of the interim railway procurement agency and it is my intention to appoint him to the statutory agency when it is established.
We were dealing with this issue this morning. The number of employees is small because the operators of the railways will be companies and they will probably vary from time to time. The employees in the railway procurement agency will be mainly administrative or specialists in the area. Deputy Stagg said with regard to a sister and a brother from ICTU that while he recognised their worth, he did not consider them to be worker directors. Nobody is casting aspersions on Tom Wall. He is a fine person who is currently on the interim board and it is my intention that he will be on the statutory board. A small number of people will be employed at the head office of the railway procurement agency and I thought somebody of Tom Wall's experience would fit in well. He is a nominee of ICTU.
It is quite regular to have trade Unionists of proven value among the ministerial nominees on State boards as well as worker directors. It is simply not true for the Minister to say she is giving workers representation because a trade Unionist has been appointed to the board. It sets aside the stakeholder proposal which is contained naturally within the worker director system. Why has this practice been set aside? I have not seen worker directors appointed to any of the new agencies which have been set up in recent times.
This is the first agency I have set up.
Several agencies have been set up.
No worker directors have been appointed in recent times. That is a bad thing. When we have half privatised some companies and privatised others, worker directors have tended to disappear.
The Deputy is talking about those who work for the railways.
Yes. The staff should have a right to elect one or two people to the board. That would give employees a real stake in the company. It would give them information, allow them an input and encourage them to do their jobs better. All the reasons we had worker directors in the first place would apply. That would not exclude Tom Wall from being a member of the board. On the board of Aer Lingus, for example, the Minister might appoint a senior trade Unionist and a senior person from the IBEC side as well as worker directors.
Section 20(1) states, "The agency shall consist of 7 members who shall direct and carry on the functions of the agency . . . ". The seven members of the interim board are the seven I propose to appoint to the permanent board. They are Pádraic White, the chairman, Fionnuala Kennedy, an economist, Tom Wall, assistant general secretary of ICTU, Margaret O'Malley, director of transport study and research group in TCD, David Manley, the former president of the Dublin Chamber of Commerce and Colin Hunt, an economist. I had a notion that we were going to have a really good board when I put it together.
I would like to allow one worker director but I would have to change the number of board members in the Bill. I have told the interim board members they will be appointed to the permanent board when the legislation is enacted. I will accept the election of one representative of the employees of the RPA.
I welcome that positive decision and I thank the Minister for it. When I was being advised about this amendment my adviser suggested the addition of one representative. I decided to propose two representatives in the hope of getting one.
Another section of the Bill will have to be amended.
I compliment the two Deputies. Worker directors have almost disappeared from the scene for a number of years and it is difficult to know why.
I do not know why Deputies say they have disappeared.
A number of companies were privatised and worker directors disappeared.
A number of companies have been created over the years.
Other companies were formed and worker directors were not appointed to their boards.
The worker director experiment did not take off in the private sector as was hoped.
What we are doing now is very useful. Can the Minister tell us how many employees the agency will eventually have?
There will be fewer than 100.
That is a substantial enough number to justify one worker director. I agree that we may have to change the number of members on the board.
One part of the Bill will have to be changed. Section 20(1) specifies that the agency should consist of seven members. I have told the seven members of the interim board that they will be appointed to the permanent board. Therefore the new board will have to be increased to eight.
Deputy Stanton's amendment will have to be altered. Minister, are you accepting amendment No. 13, or will you return to it on Report Stage?
I am going to accept it. The other section will be amended on Report Stage, to allow for the appointment of eight members to the permanent board. May I do that if the amendment has not been submitted on Committee Stage?
It can be moved across the floor of the House if the committee agrees. I believe the committee would be in agreement that the Minister would amend section 20. The Minister's amendment will increase the number on the board to eight and following that, the wording of Deputy Stanton's amendment No. 13 will be inserted.
If the board is increased from seven to eight members will the question of a vote by the board be affected?
The seventh will be the chief executive but Deputy Stanton has a later amendment on that.
Votes by the board would result in a tie unless provision is made for the chair to have a casting vote.
The chair of a board usually has a casting vote.
That is usually written into the legislation. That may need to be done here, if it has not been done already.
Deputy Stanton's point is valid.
Unless the number were increased to nine?
That would be getting out of hand.
An amendment may be required on Report Stage to specify that in the event of a tie the chair would have a casting vote.
I did not think it would be necessary to put that in a Bill.
The ramifications of this could be considerable. It will be necessary to come back to this matter on Report Stage.
I never saw that in a Bill. The chair of an urban or county council always has a casting vote.
It is specified in local government standing orders.
Is it? We will query that. As of now the number of the board is eight, including one employee representative.
Amendment No. 12a will read, "In Section 20 to substitute the number eight for seven" and amendment No. 13 will stand as Deputy Stanton tabled it.
Amendment agreed to.
I move amendment No. 12a:
In section 20, to substitute the number eight for the number seven.
Amendment agreed to.
I move amendment No. 13:
In page 13, subsection (1), line 1, after "members" to insert ", at least one of whom shall be elected by the employees of the Agency,".
Amendment agreed to.
Amendments Nos. 13a, 13b and 16 are related and amendment No. 14 is an alternative to amendments Nos. 13a and 13b. Amendments Nos. 13a, 13b, 14 and 16 can be discussed together.
I move amendment No. 13a:
In page 13, lines 35 to 44, to delete subsections (8) and (9) and substitute the following:
"(8) The Minister, when appointing an ordinary member of the Agency under subsection (3), shall fix such member’s period of membership which shall not exceed 5 years.
(9) Such number, as decided by the Minister, of the first ordinary members of the Agency appointed under subsection (3) shall hold office for a period not exceeding 4 years from the date of their appointment as determined by the Minister by lot.”.
My amendment is in conjunction with Deputy Stanton's. The draftsman feels his could have been more elegantly drafted. My amendment proposes that members be appointed in turn, their turns coming up at the same time. My official tells me this is not the case. The appointments will be staggered so that there will always be experienced people on the board.
Amendment agreed to.
I move amendment No. 13b:
In page 14, lines 1 and 2, to delete subsection (10) and substitute the following:
"(10) A member of the Agency (other than the chief executive) shall not serve for more than 2 consecutive terms.".
Sometimes a very good person who is doing a very good job must be dispensed with because his time is up. The Bill does not allow for flexibility.
The case of Billy McCann was interesting. He was an excellent chairman and for years was an ordinary member. He served 14 or 15 years, altogether.
An ordinary member may serve no more than five years. Does that limit apply to the worker director?
The worker director will be elected for a period by the workers.
Can the worker director be elected for a second period?
We have not had a chance to consider the position of the worker director.
Worker directors are normally elected for a second period. A worker director might need a longer period.
Would he need more than two terms?
He would need at least two terms.
That would be long enough.
Amendment agreed to.
Amendment No. 14 cannot be moved because it is an alternative to amendments Nos. 13a and 13b. We may discuss amendment No. 16 at this stage.
I do not consider subsection (15) to be necessary. What does it mean?
The subsection means that if a member's five year term is up, he or she be will be eligible to go forward again.
Is that not a given? Is there another reason for the inclusion of the subsection?
The subsection does not add to or take from the Bill. I will agree to take it out.
I propose that we adjourn for a time now.
Can we find out if a Special Notice Question has been accepted?
That will be taken first, before they start the shouting.
I am not sure. The Order of Business will be at the same time as every other day.
The last time I answered a Special Notice Question it was taken before the Order of Business. That was only about a month ago.
Amendment No. 14 not moved.
Amendment No. 15 has already been discussed with amendment No. 10.
I move amendment No. 15:
In page 14, subsection (11)(e), line 12, to delete “1999” and substitute “2001”.
Amendment agreed to.
Amendment No. 16 has already been discussed.
I move amendment No. 16:
In page 14, lines 32 to 34, to delete subsection (15).
Amendment agreed to.
I move amendment No. 17:
In page 14, subsection (16), lines 35 to 37, to delete all words from and including ", in" in line 35, down to and including "Agency" in line 37 and substitute "comply with the requirement that at least 3 members shall be women and at least 3 shall be men".
I read with interest the comments made in the Seanad when this matter was discussed. I would be amazed if the principle behind what I am trying to do is not accepted, given that we have failed, under the nod and wink system which is the alternative to this hard fact system, to achieve the levels of participation by women at the highest level in society. We are still at the 30% level and well short of the 40% target set by the Government.
The Special Notice Question is being taken after the Order of Business. The Order of Business will begin at 4.15 p.m.
I have work to do before I go in.
I suggest that we break now and resume at 5.15 p.m.
I cannot return as I have a personal situation to attend to. I will have someone stand in for me. Please accept my apologies.
That is a pity. We were getting on well.
Sitting suspended at 4.10 p.m. and resumed at 5.30 p.m.
We are resuming on section 20, amendment No. 17. When we adjourned Deputy Stagg was about to make some points.
I understand it is Government policy that 40% of the membership of State boards should be women. I am not aware that this policy has been changed and I am seeking its implementation. In order to achieve this, it will be necessary to have positive discrimination. I support the point the Minister made that the best people for the job should be selected and have no doubt that that should be the case. I do not believe that it would be affected by the proposal before us, that, of the people to be elected, three should be men and three should be women, of necessity, to give a gender balance to the board. It has long been accepted - in the interim before we achieve the ideal of full and equal representation for women at this level - that this form of positive discrimination is the best method of achieving it. I see it as a temporary measure until it is achieved, but we are certainly a long way from achieving it at the moment. In fact, the figure has stagnated in recent years at about 30%, well short of the 40% required by Government policy documents. I am asking the Minister to consider this matter as positively as possible.
I cannot agree with the amendment because I never believed in forced agendas for gender balance. I still do not. I remember distinctly what I said about this matter in the Seanad. I did not agree with the former Minister for Education and Science, Niamh Bhreathnach, when she did this with the boards of regional colleges. I know women who have been called "quota" women because they were appointed in an effort to reach a quota under such a system. I simply do not agree with it.
Is the Minister saying she will include this provision without having it written into the legislation?
No. May I read out the names of the board members?
How many women are on it?
Of six board members, two are women - Fionnuala Kennedy and Dr. Margaret O'Mahoney, director of the transport research group at TCD.
By having two women board members the Minister is very close to what I am seeking.
Perhaps the elected person will be a woman.
That is what I was going to suggest. Perhaps when the Minister is notifying Congress she will suggest this. When I was in her Department we used to do this on the advice of officials who would notify outside nominating bodies suggesting to them that the figure would be met if a woman was elected. It was then a matter for them whether to do it. That might meet the case. If I received an indication from the Minister that she might indicate to the outside nominating body - there is only one - that it might do so, I wouldbe happy that she was moving in the rightdirection.
Mr. Tom Wall is already there and is clearly a man.
The poor man would be embarrassed if that were being questioned.
It is a fact. I will certainly say it to the chairman of the board, if he feels it would be fit to do so, but I am not going to order him to do it.
I actually do not believe in it. The two women I appointed to the boardwere appointed because they were excellentindividuals, not because they were excellent women.
Usually one has much more difficulty in making this case to women than if a man was sitting where the Minister is sitting. Perhaps that is because a male Minister would be embarrassed into accepting the case I am making. The reality is that we have only achieved 30% representation for women at board level, when the Government's objective is 40%. Therefore, the Minister has fallen short of the target set in the Government's own policy statements. She may accept that a small movement in that direction may suffice, but I am not suggesting that anybody should be ordered to do anything. It could, however, be suggested that if a woman was nominated for election - I appreciate no one has yet been nominated - it would assist the gender balance.
I will certainly suggest it to the chairman, although I shall not order him to do so. However, I cannot accept the amendment because I do not agree with it.
I will withdraw it on foot of that.
Before Deputy Stanton had to leave we discussed the casting vote. It is stated on page 15, section 20(5), "at a meeting of the agency, each member of the agency present, including the chair, should have a vote on any question in which a vote is required . . . voting on the question and in the case of an equal division of votes, the chairperson of the meeting shall have a second and casting vote."
On which page is that stated?
Page 15. There was a debate on the matter initiated by Deputy Stanton.
Amendment, by leave, withdrawn.
Section 20, as amended, agreed to.
Amendment No. 18 not moved.
Section 21 agreed to.
SECTION 22.
I move amendment No. 19:
In page 15, subsection (1), line 8, after "functions" to insert "but shall hold at least one meeting in each quarter of the calendaryear".
The amendment is self-explanatory. It seeks to insert the words "hold at least one meeting in each quarter of the calendar year." In that way there would be regular meetings of the agency during the year. I am sure the Ministerwill have no difficulty in accepting the amendment.
I wish to give notice that I may bring forward an amendment on Report Stage to sections 18 and 19 concerning accountability.
I understand the Minister has indicated she will respond positively to amendment No. 19.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
Amendments Nos. 20 to 22, inclusive, form a composite proposal and may be discussed together by agreement.
I am accepting these amendments. We accept the lesson from the teacher, Deputy Stanton.
I move amendment No. 20:
In page 15, subsection (2), line 34, to delete "office" and substitute "office,".
Amendment agreed to.
I move amendment No. 21:
In page 15, subsection (2), line 34, to delete "reasons" and substitute "reasons,".
Amendment agreed to.
I move amendment No. 22:
In page 15, subsection (2), line 34, after "Agency" to insert "and in accordance with the terms and conditions of his or her contract of service".
Amendment agreed to.
I move amendment No. 23:
In page 15, lines 35 to 37, to delete subsection (3) and substitute the following:
"(3) The chief executive officer shall manage and control generally the staff, administration and business of the Agency and perform such other functions as may be conferred on him or her by or under the Act or determined by the Agency. He or she shall advise the Agency in relation to the performance of the functions of the Agency and shall make any proper proposals to the Agency on any matter relating to the activities of the Agency.".
The amendment is self-explanatory. Amendments Nos. 23 to 27, inclusive, all relate to the same issue and are designed to give a fuller description of the role of the chief executive officer by elaborating on or qualifying that role. They seek to insert more detail in the legislation in relation to it. The five amendments relate to the same issue, namely, to outline the performance and role of the chief executive officer.
Deputy Stanton's amendment is too prescriptive on day to day matters and is not suitable for legislation. I draw the committee's attention to section 23(3) which states the "chief executive shall carry on and manage and control generally the administration and business of the Agency and perform such other functions as may be determined by the Agency". That is preferable. A chief executive must run the show.
We would be happy if the Minister wanted to sack him.
The board would have to sack him.
I could think of circumstances where that might be useful.
I withdraw the amendment on the basis that it can be reintroduced on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 24 to 27, inclusive, not moved.
I move amendment No. 28:
In page 15, lines 43 and 44, to delete subsection (5) and substitute the following:
"(5) The chief executive officer shall not be a member of the Agency. However, he or she will have the right to attend meetings of the Agency and to address the Agency on matters relating to the performance and the functions of the Agency.".
The chief executive officer should be independent of the agency and have an independent role in terms of managing and supervising theagency.
It is normal practice. I remember an amendment to the Aer Rianta Bill, 1998. I am strongly of the opinion that a chief executive should be at the table. How will he or she manage the business if he feels everyone at the table is talking about him and he is only called in from time to time? It makes for a better company if the chief executive is an ex officio member of the board. I fail to see why the agency should be exempt from that good practice.
I agree with the Minister's point. If the chief executive is excluded, his status will be reduced in his dealings with outside bodies. As a member of the board and chief executive, his status will be enhanced and that is important in his dealings with outside bodies.
It is interesting that this issue is being raised again because in the 1960s the IPA had a long series of meetings on the boards and chairpersons of State bodies. That was one of the biggest issues discussed at that time.
It favoured the chief executive being on the board.
I withdraw the amendment on the basis that it can be reintroduced on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 23, as amended, stand part of the Bill."
Subsection (7) states:
A chief executive officer shall not, for a period of 12 months following his or her resignation, removal or retirement from office, hold any office or employment or act as consultant where he or she may be likely to use or disclose information acquired by him or her in the exercise of the functions of the Agency.
It has been suggested that the 12 month period should be extended to 18 months following his or her resignation, removal or retirement as chief executive of the agency. As we all know, some of the proposals which come before the agency may take longer than expected to come to fruition. A minimum period of 18 months should be used rather than 12 months.
Both public and private companies believe the period of 12 months is right. The Deputy is entitled to his point of view, although I do not agree with it.
It could lead to a constitutional issue because it prohibits someone from practising his or her trade.
An amendment may be introduced to deal with that issue on Report Stage.
We will be busy on Report Stage.
Question put and agreed to.
SECTION 24.
I move amendment No. 29:
In page 16, between lines 31 and 32, to insert the following subsection:
"(6) Each consultant and each member of the staff of the Agency at a grade or level specified in section 28(2) shall not, for a period of twelve months following his or her resignation, removal or retirement from office, hold any office or employment or act as consultant where he or she may be likely to use or disclose information acquired by him or her in the exercise or the functions of the Agency.”.
The amendment seeks to prohibit members of the board or staff of the agency above a certain grade from taking up employment or a consultative role where information may be disclosed for a 12 month period following their resignation. The amendment is important in terms of protecting the information made available to the agency. It relates to a later amendment about the disclosure of information to the agency and to other bodies. If organisations, such as CIE, furnish the agency with information, it is important that confidentiality is protected, and the amendment provides for that. Questions have been raised in the past about people who left one organisation and joined another one to its benefit. I ask the Minister to seriously consider the amendment.
I support the amendment which has value. If the chief executive is in that position, we should also look at staff above a certain level in the agency. We have the experience of the mini-CTC project in Iarnród Éireann where the public was scandalised by staff who were senior negotiators for Iarnród Éireann one day sitting on the other side of the table and getting paid the next day. Consultants were paid by the two sides at the same time.
It might be difficult to tell a consultant he or she cannot work for anyone else for a year, or to put them in that situation.
One would not get a consultant.
However, we could say he or she cannot work for someone else at the same time if the work is in conflict with the person's work for the agency. It might be difficult to deal with consultants. Perhaps it would be better not to hire them or to impose conditions on them at the time of hiring.
Perhaps the amendment is drawn too wide. The Deputy's point is right.
One could not do it with consultants because one would not get a consultant. They are trying to make a living and they are doing that well. One could not tell them they could not go somewhere else because they would have another consultancy the next day. Given that four people left CIE to join MNL - they continue to assert their objectivity - we asked the Office of the Parliamentary Counsel about employees and the advice is that curtailing a person's employability via legislation would be open to challenge, as was said here earlier.
How was it done in regard to the chief executive?
That was the point I made. The chief executive is the organisation's linchpin, and so cannot be allowed to go straight to another organisation.
A member of staff could challenge it.
My own experience, like that of thousands of employees, is that one cannot get employment without signing a confidentiality clause.
Confidentiality is a different matter.
It is commonplace in the private sector that employees of a certain grade are prohibited from working within the same sector for a set time after leaving their employment. Why can the same thing not apply to the public sector? It has caused huge concern and I could name a few examples where it has happened, of which CIE is one. The Minister must address this issue.
Will the Deputy give us the examples?
Will the Deputy name them?
There are serious questions about ACC Bank, where staff left to join the Bank of Scotland. That is one example and I believe there are others which would be discovered if we delved into it. While there is protection in relation to a chief executive officer, there is none for other grades, such as the next in command, who could easily have access to the same information as his or her senior. Such a person would definitely have information on a particular section or type of business within the company. It can easily be transferred by someone in a grade lower than the chief executive officer, and could then be used against a State company.
It is covered by the code of practice, but we wonder about the efficacy of codes. A code is not mandatory, but merely an expression of good intentions such as we all make from time to time. I am worried about the Parliamentary Counsel's advice that it would be open to challenge if put in the legislation.
As there is value in this, the Minister ought to consider it even though time is limited.
We will look at it again. I will ask the counsel to write out his advice.
Is the code of practice part of the contract?
Page 18, line 23 of the Bill states that the agency shall, following consultation with the Minister, draw up a code of conduct in respect of controls on staff interests and ethical behaviour to apply to each staff member.
What happens if someone breaches the code of conduct?
That would be up to the executive.
What is the maximum sanction?
That would not stop them releasing information or going the next day to join the company they had released information to. The sanctions are inappropriate for information that may be extremely valuable to another company. Serious problems and question marks hang over a number of organisations regarding this. The individuals in question may be innocent but it raises serious issues. The questions asked today arise from actual incidents. I ask the Minister to think again about this amendment and the comments of Deputy Stagg and myself in order to arrive at a compromise amendment.
I will go back to the Office of the Parliamentary Counsel to get his advice in writing. I am able to accept amendments and make up my own mind. However, when advice comes directly, it is more likely to receive attention.
Amendment, by leave, withdrawn.
Sections 24 and 25 agreed to.
Amendments Nos. 30, 31, 32 and 33 are consequential and, by agreement, may be discussed together.
SECTION 26.
I move amendment No. 30:
In page 17, subsection (1), line 31, to delete "is".
These are technical amendments involving the word "is."
Amendment agreed to.
I move amendment No. 31:
In page 17, subsection (1)(a), line 32, before “nominated” to insert “is”.
Amendment agreed to.
I move amendment No. 32:
In page 17, subsection (1)(b), line 33, before “elected” to insert “is”.
Amendment agreed to.
I move amendment No. 33:
In page 17, subsection (1) (c), line 35, before “regarded” to insert “is”.
Amendment agreed to.
Amendments Nos. 34, 35 and 36 may, by agreement, be discussed together.
I move amendment No. 34:
In page 17, subsection (2), line 41, to delete "is".
Amendment agreed to.
I move amendment No. 35:
In page 17, subsection (2)(a), line 42, before “nominated” to insert “is”.
Amendment agreed to.
I move amendment No. 36:
In page 17, subsection (2)(b), line 43, before “elected” to insert “is”.
Amendment agreed to.
I move amendment No. 37:
In page 17, subsection (2)(c), line 45, before “regarded” to insert “is”.
Amendment agreed to.
I move amendment No. 38:
In page 18, subsection (5), line 18, to delete "Agency" and substitute "Minister".
This amendment arises from an oversight when the Bill was being published.
Amendment agreed to.
Section 26, as amended, agreed to.
Section 27 agreed to.
SECTION 28.
I move amendment No. 39:
In page 19, subsection (5), line 34, to delete "1999" and substitute "2001".
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29.
I move amendment No. 40:
In page 20, between lines 39 and 40, to insert the following subsection:
"(2) The chief executive, a member of the Agency, a member of the staff of the Agency, or a consultant, adviser or other person engaged by the Agency shall-
(a) notify the Agency of a potential conflict of interest or circumstance in which the person has a doubt about a conflict of interest, and
(b) desist from pursuing an interest that they know to be in conflict with the work of the Agency.”.
This amendment is self-explanatory and is a positive statement on any conflict of interest which may arise. It puts the onus on the individuals involved to disclose such a conflict.
The Bill, as drafted, has adequate provisions regarding the declaration and disclosure of interest. Section 29 (1) states:
Where the chief executive, a member of the Agency, a member of the staff of the Agency, or a consultant, adviser or other person engaged by the Agency, has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Agency he or she shall . . .
The section goes on to outline the actions which must be taken. The Deputy suggests they should notify the agency of a potential conflict of interest or circumstances in which a person has a doubt about a conflict of interest and should desist from pursuing an interest they know to be in conflict with the work of the agency. That is all dealt with in section 29. Section 29 (4) provides a mechanism for establishing whether there is a conflict of interest.
I will withdraw the amendment but may reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 29 agreed to.
SECTION 30.
I move amendment No. 41:
In page 22, between lines 21 and 22, to insert the following subsection:
"(5) The First Schedule to the Freedom of Information Act, 1997, is hereby amended by the insertion therein of a reference to the Agency.".
This is an old chestnut. It could be very important that this particular agency be subject to the Freedom of Information Act. Section 30(5) does not do this despite the fact that a lay person might think it does. My advice is that it does not do the job. I presume the Minister will argue that this is a matter for the Minister for Finance but there is nothing on it in the legislation. We checked because the Minister has made this argument a number of times.
The Minister argues that it is a matter for the Department of Finance but it is not. The Minister is leaving it to the Department of Finance and there may be Government agreement to do that but there is nothing in the legislation to say that it must be introduced by that Department. That is not the case. The Minister could do this if she wished and could make the agency subject to the Freedom of Information Act, 1997. She should ensure the agency is subject to that Act by actually stating that in the Bill.
Under decisions made by this and previous Governments the Department of Finance became the lead Department when the Freedom of Information Bill was enacted. It is the function, therefore, of the Department of Finance to make the necessary amendment. All Bills in all Departments are subject to this measure which is carried out by regulation. If the Bill is passed, we will liaise immediately with the Department of Finance, as we have done with all our Bills, to ensure that the agency is brought under the remit of the Freedom of Information Act. The Department of Finance is the lead Department in this area.
It is because we do nothing that it becomes the lead Department.
No, this Government and the previous one made the Department of Finance the lead or parent Department. We send in the Bill and ask that it be subject to the Freedom of Information Act.
The Minister is really saying that she has not the power to deal with it because it is the work of the Department of Finance. That is not the case. While the Minister does not have the power to deal with it we do, or the Oireachtas does, but we require the Minister's support to do that. If it is not provided for in the Bill then it becomes, by Government decision, a job for the Department of Finance. If it is provided for in the Bill, the matter is dealt with. I would love to try it just once.
When the Deputy is back in power with all his new friends, he can try it.
As far as I am concerned, old friends are best. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 36, inclusive, agreed to.
NEW SECTION.
I move amendment No. 42:
In page 25, before section 37, to insert the following new section:
"37.-It shall be a requirement that CIÉ, or any of its subsidiaries, make available all relevant information either to the Agency, or any other person with the consent of the Agency, who intends to apply to the Minister for a railway order.".
Basically, this amendment seeks to impose the requirement that CIE or any of its subsidiaries should provide information to the agency which would be of benefit to ensure fair play in any competition for a railway order. For example, CIE could have information available to it which, if made available to any competing interests, could benefit them in making a submission for a railway order. It would also ensure competition within the market place for such railway orders as may arise in the future under the agency. This balances the tables so that the information that CIE has at its disposal is also available to other companies or organisations seeking an order for the same service.
First of all, this is not about CIE but about the metro and Luas and is beyond the remit of this Bill. We could not place an obligation of this nature on CIE in this Bill. That is not what the Bill is about. At the moment, CIE can apply to the Minister of the day for a railway order. This obligation could not be imposed on CIE in a Bill dealing with the metro and Luas. The new agency is not a subsidiary of CIE.
I do not support the amendment. CIE has a commercial remit and is obliged to act in a commercial manner. It should not be asked to give everything to another agency. There may be some rivalry between these two agencies but I do not see where there competition would arise. I expect that there will be an overall regulator of transport who will regulate the co-operation between them. There is co-operation on the provision of an integrated transport system. Asking the semi-State bodies to give up all their secrets, as it were, to a rival, is just not on. I do not see them as rivals or competitors in that sense. It is like the time the late George Colley insisted that Bord na Móna help its competitors and give them bogs. This is heading in the same direction.
I will withdraw the amendment with leave to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 37 agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill."
This section exempts all relevant works from planning controls. There is a danger that it may result in less environmental protection. I do not feel very strongly about this issue but perhaps the Minister would outline the procedure in this area. We are aware of the procedure for getting planning permission and we will all have to pay £20 from now on if we write to the local authority about a particular matter.
That is the truth. That is what the last vote was about.
Does the Deputy mean that will happen every time a person makes a telephone call?
They will not take them unless people have paid. The procedures for planning permission will include a £20 charge from 1 January onwards. What would be the procedure for making a railway order if CIE wanted, for example, to build a railway from Dublin to Navan next year?
The latest one we had in that regard was the Light Rail Order. CIE applies to the Minister for a railway order and an inquiry is set up——
Yes. Judge Seán O'Leary was appointed to conduct a public inquiry and did marvellous work.
He is a good Fine Gael man.
He is a strong Fine Gael supporter but I had no qualms about appointing him as he is very competent. People came to him and complained that the Luas line would run behind their back garden and that they were worried about the loss of privacy and increased noise. He listened and went out to look at the site for himself.
The Minister is using up the argument for the next amendment. I am only asking about the procedure for the railway order.
I am just telling the Deputy that Judge O'Leary went out, inspected the site and made his decision. That is how the matter proceeded.
Did it ever happen that a railway order was refused?
I did not receive very many applications other than those regarding Luas and a part of the Connolly line. Judge O'Leary did not agree with the proposed terminus location at Connolly and I took his point.
This is a licensing process which operates in the same way as planning permission applications. Planning permission applications are regularly refused even for big projects.
I do not know whether when railways were first built there were rows about building them and whether permission to construct them was refused. Generally speaking, they are not refused. This is a great piece of legislation which has been updated on an ongoing basis. It allows a railway to be built if it is for the public good.
We saw in the summer the legal situation which pertained in France. A magistrate is appointed, holds hearings and within a three-month period - a specified time - makes a public service order. Once that order is made, the process goes ahead. That is why light rail services in Lyon, Montpellier and the outskirts of Paris are up and running far faster than they are here.
There is no time limit on our system which I prefer because people get a decent hearing.
Question put and agreed to.
SECTION 39.
I move amendment No. 43:
In page 25, subsection (1), lines 40 to 42, to delete all words from and including "comply" in line 40 down to and including "particular" in line 42.
This amendment clarifies a misunderstanding that occurred on Committee Stage in the Seanad when an amendment inserting the above wording was accepted. Section 39 as now drafted replicates the requirements of environmental impact statements as laid down in the current EU directive. I accepted an amendment on Committee Stage in the Seanad. The Department of the Environment and Local Government is responsible for directives concerning environmental impact statements and this section will be amended if those directives change or if new ones are agreed. My Department cannot change these provisions as it does not have responsibility for environmental impact statements.
I received telephone calls about this matter.
I was happy to deal with the matter on Committee Stage in the Seanad and I will discuss it with the Minister for the Environment and Local Government.
Amendment agreed to.
Section 39, as amended, agreed to.
Sections 40 and 41 agreed to.
Amendments Nos. 44 and 45 not moved.
Sections 42 to 44, inclusive, agreed to.
SECTION 45.
Question proposed: "That section 45 stand part of the Bill."
An agreement was made a few days ago between the IFA executive and the Department of the Environment and Local Government in relation to compulsory purchase orders. How do the compensation procedures compare with it?
The judge appointed decides on the level of compensation.
Ultimately, it is the responsibility of the individual judge.
Yes, the judge decides on the extent or height of a wall or the amount payable for a garden. However, property is acquired by way of compulsory purchase order and arbitration. Is the Deputy asking the question because another body was brought in when the Department of the Environment and Local Government and the IFA were involved?
Does the agreement between the Department of the Environment and Local Government and the executive of the IFA, subject to it being agreed by landowners, have any impact on the levels of compensation payable on foot of compulsory purchase orders?
That is an agreement made between the Minister for the Environment and Local Government, Deputy Dempsey, and officials of the IFA.
Through it, the Department of the Environment and Local Government agreed that land had a particular valuation. A few years later we may decide to run a railway along——
There would already be a road there. It is about roads, is it not?
Yes, but if a railway was to run alongside the road and different standards were set for compensation, how could one Department determine one value for the land and another determine it was worth less?
We will have to address that matter when we reach it. No doubt the lobby groups will be out in force.
Question put and agreed to.
Section 46 agreed to.
SECTION 47.
I move amendment No. 46:
In page 36, subsection (5)(a), line 39, to delete "its" and substitute "the".
This is a technical amendment.
Amendment agreed to.
Section 47, as amended, agreed to.
Sections 48 to 54, inclusive, agreed to.
SECTION 55.
Amendments Nos. 47 and 48 are related and may be discussed together.
I move amendment No. 47:
In page 42, paragraph (c), line 30, after "person" to insert "driving or".
The Government's amendment is included at the suggestion of the parliamentary counsel to correct an oversight at the time of publication of the Bill.
Why is this necessary? Surely it is self-evident that such a person would get the boot when caught.
The parliamentary counsel suggested there was a lacuna, which should be addressed.
Amendment agreed to.
Section 55, as amended, agreed to.
NEW SECTION.
I move amendment No. 48:
In page 42, before section 56, to insert the following new section:
"56.-(1) A person who is disqualified under the Act of 1961 for holding a driving licence (within the meaning of section 22 of the Act of 1961) shall not drive a light rail vehicle on a public road.
(2) A person who contravenes this section is guilty of an offence and is liable on summary conviction to a fine not exceeding \2,500 (£1,968.91) or to imprisonment for a term not exceeding 3 months, or to both.".
Amendment agreed to.
Sections 56 to 64, inclusive, agreed to.
SECTION 65.
I move amendment No. 49:
In page 44, subsection (1), line 41, to delete "or the Agency" and substitute ", the Agency or a railway undertaking, with the consent of the Agency,".
This amendment allows railway undertakings to make by-laws with the consent of the agency.
Amendment agreed to.
Section 65, as amended, agreed to.
Sections 66 to 70, inclusive, agreed to.
SECTION 71.
Amendments Nos. 50 and 51 are cognate and may be discussed together.
I move amendment No. 50:
In page 46, subsection (1)(a), line 36, to delete “9” and substitute “10”.
These two amendments would increase the number of directors on the boards of Iarnród Éireann and Bus Éireann. CIE requested them to strengthen the individual boards. The original request increased the number of directors from six to nine. The number of worker directors would also increase proportionately. On further examination of the issue, CIE has requested a further increase to ten. However, I do not agree with my amendment and withdraw it.
Can we move the amendments to embarrass the Minister?
Amendment, by leave, withdrawn.
Section 71 agreed to.
Amendment No. 51 not moved.
Table agreed to.
Title agreed to.
Bill reported with amendments.
I thank the Minister and her officials for attending today's meeting.
I thank you, Chairman, with the staff of the committee as well as Deputies Stagg and Naughten.
I thank the Minister for speaking to us today as the Bill has been improved through our discussion. I have no intention of tabling the same amendments in two days because the legislation has now been dealt with. If I am not here on Thursday, do not worry.
