Apologies have been received from the Chairman, Deputy Fahey, and Deputy Feighan.
The meeting has been convened for the purpose of considering the Harbours (Amendment) Bill 2008 which was referred to the select committee by order of the Dáil of 14 May. I welcome the Minister for Transport, Deputy Dempsey, and his officials, Mr. Garrett Doocey and Mr. Fintan O'Brien. A grouping list of amendments has been circulated.
Amendments Nos. 1, 2 and 7 are related and may be discussed together.
I move amendment No. 1:
In page 5, between lines 8 and 9, to insert the following:
"(b) after full consultation with relevant maritime stakeholders,”.
My first amendment refers to the Minister's powers of delineating the area within a company harbour. Dublin Port and Drogheda Port are mentioned. A number of stakeholders, including maritime pilots and others, believe this provision should be broadened to include full consultation. In other words, everybody in the ports referred to with a relevant interest should be consulted. The Minister is in the process of preparing a major report on Dublin Bay, which will be important for the future of that area, while the Minister for the Environment, Heritage and Local Government is having a type of rival report prepared and at the same time An Bord Pleanála is considering issues which, ultimately, will impact on the harbour area. I propose that this additional wording be inserted to ensure all relevant stakeholders in the harbour area are included in the process.
Amendment No. 2 provides that, "In page 5, between lines 8 and 9, to insert the following: "(b) the level of transport integration between the national ports and wider transport networks,”.” We have discussed this issue many times in regard to encouraging the development of rail freight and support linkages between rail freight and harbour and port areas. This would be an important issue in regard to Braemore. I would be a strong supporter, as I am sure would my colleague next to me, of the Braemore project and of Drogheda Port. The necessary preparations for the provision of the road and rail networks, namely the wider transport network, are critical. A decision was made during the previous Administration to transfer responsibility for ports and harbours to the Department of Transport to ensure the development of integrated networks.
I thought it was appropriate to table this amendment to provide for transport integration to a key section that refers broadly to harbours. It is a subject on which we have had debates. I hope we will invite back the chairman of CIE, the chief executive of Irish Rail and Mr. Fred Barry of the NRA to discuss this matter, which relates to all those organisations. The Deputy opposite, would be concerned to ensure that Balbriggan, in particular, would be provided for in such a way as to ensure that new port traffic will not impact on it.
Amendment No. 7 relates to the traffic separation scheme proposal, which is of particular concern. The amendment provides, "In page 6, line 19, after "of" to insert the following: "and wholly part of the Traffic Separation Scheme (TSS)"." It is perceived that the limits of ports have been amended without consulting stakeholders such as the Association of the Maritime Pilots of Ireland which have made strong representations to members of the committee. The limits of ports determines the limits of the pilotage area and responsibility of the port for traffic control within the limits of the harbour. Port traffic control or information services have a vital role in modern port management in protecting against the risk of collision occurring and monitoring the safe transfer of traffic. In the case of Dublin, the traffic separation scheme, called the TSS, is now only partly included within the port limit, as laid down by the harbours legislation. The use of traffic separation schemes is recognised internationally. When the members of the previous committee visited the port on a number of occasions, it was interesting to observe port traffic control and the way the maritime pilots ensured that ships were able to navigate their way safely in and out of the port. Therefore, this scheme is an important safety innovation. Part of the TSS in Dublin Bay will be outside the port limits, as I understand from the representations I have received, and therefore partly outside the area controlled by the port and Dublin Bay vessel traffic information service. I thought it was appropriate to table an amendment, to provide for that representation I received, to the section dealing with a harbour's limits. I propose those three amendments for consideration.
While I support these amendments, Fine Gael supports the Bill and we are happy to facilitate its passage before the end of the business on Friday week in terms of the taking of Report and Final Stages. There are many good provisions in the Bill and the powers granted under some of its sections will allow Drogheda Port Company to develop facilities at Braemore. That is critical to the development of that region.
As Deputy Broughan said, we have discussed on a number of occasions the importance of ensuring transport links into a new port such as Braemore. A report from the National Roads Authority on the Leinster outer orbital route, which will link with this region, has been lying on the Minister's desk for some time. As Deputy Broughan said, we do not want such development to impact negatively on the town of Balbriggan or the existing infrastructure, which is heavily pressurised at times. As one approaches Dublin city, the traffic jams, even in the current recessionary times, can be considerable early in the morning. Will the Minister comment on the status of the Leinster outer orbital route, which is directly related to and very much a part of the new development at Braemore? There are issues around PPPs and so on but it is essential it is built as soon as possible. I would appreciate hearing the Minister's views on that.
The comments made about the transport links are relevant. In that context, I flag that a third lane on the M1 will be required. Undoubtedly, once Braemore develops as a commercial port, the M1 will carry significant extra shipping traffic. The need to build a third lane on the M1 is an matter we will have to consider for the future.
I thank the Members for their general support for the Bill and for facilitating our efforts to put it in place, which is extremely important, particularly for Drogheda Port in respect of the proposed development as well as for a number of other reasons.
Amendments Nos. 1, 2 and 7 refer to the principles and policies to which a Minister shall have regard on making an order to extend a harbour's limits. The current list is outlined in the Bill. It is extensive. Matters such as present and expected capacity of the harbour as well as navigational safety are included for consideration before any relevant approvals or applications are made. All these approvals are made by way of applications, whether under the Planning Acts or Foreshore Acts.
In regard to consultation and facilitating as wide a participation as possible, I point out that by their nature the Foreshore Acts and the Planning Acts allow for and make it compulsory for there to be a great degree of consultation. In that context, I am satisfied the principles and policies listed in the Bill will ensure as broad a spectrum of opinion as possible to help inform any decisions made under this section.
I am always careful in legislation to try to avoid a series of duplications and triplications of procedures. Where it is possible to refine such provision into one solid procedure, it is much better. The kinds of issues about which we are talking here are dealt with in other legislation. The type of consultation Deputy Broughan, other members of the committee, myself and the Department would want are adequately catered for under existing legislation.
References to issues such as navigational safety and the present and expected capacity of the harbour have to be taken into account already and consultations must take place with the relevant maritime stakeholders when one does so. For that reason I do not feel it is appropriate to insert an explicit reference to consultation with maritime stakeholders when, by its very nature, the section already provides for that kind of consultation. The most recent example of a company's harbour limits being extended by ministerial order was in Drogheda in 2004. The seaward limits were extended at that time, subject to a publicly advertised period of consultation and all interested parties were invited to make submissions on the issue. They participated in that process. The provision is implicit in section 3 and does not need a further amendment to underline it.
My response to the second point is similar. I agree with the Deputy that it is hugely important if we take the Bremore example, but there are other examples of ports that are talking about developing. We had a good example of it in Cork. Whether I agree or disagree with An Bord Pleanála's decision, one of the major reasons it refused planning permission for the proposals submitted by the Cork harbour authority was the integration of transport. There is already a provision in the section for consideration of any planning applications, planning permission or environmental impact assessments made under the Planning and Development Acts. Issues such as transport integration are naturally included in that. For that reason they are part of the planning process and are judged by experts in that area. That is a sufficient safeguard to ensure that kind of integrated transport. The Deputy's point is a valid one — that we should have transport integration with ports — but we do not need an amendment to ensure that. It is already in place.
On the specific instance Deputy O'Dowd raised concerning the Leinster outer orbital route, the status of that has not changed since the Deputy asked me about it in the House some months ago. There is a report which indicates quite clearly that there would be a positive return from a cost-benefit analysis of an outer orbital route. The general route would facilitate Bremore, although work on this started before there was any talk of Bremore as a port. By coincidence, however, it does link up with that. As I said before, it is not included in the NDP or the current phase of Transport 21, but it will fall to be considered for either or both of those should the kind of developments we are talking about at Bremore take place. As part of the planning conditions, I have no doubt there would be specifications at least for getting to the M1 and probably the wider issue of the Leinster outer orbital route. Similarly, Deputy Kennedy raised the point concerning the necessity for a third lane on the M1, which would fall to be considered at that time.
The amendments deal with the insertion into primary legislation of the harbour limits of the Dublin Port Company. Section 3 does not alter the limits of the port company as they currently stand, but merely restates them in primary legislation, which is already the case as provided for in secondary legislation. Therefore we are taking the opportunity to confirm in primary legislation what is already there in secondary legislation. Deputy Broughan's amendment proposes to insert a reference to the traffic separation scheme in the description of the harbour limits. As the Deputy clearly indicated, the traffic separation schemes are areas designated by the International Maritime Organisation and authorised by the International Convention for the Safety of Life at Sea, known as SOLAS. They separate marine traffic where it converges. There are two schemes in Dublin Bay, the boundaries of which traverse the harbour limits of the company. I do not consider it appropriate to include reference to such schemes in a description of the harbour limits, which are essentially an administrative boundary of the port company.
The company's responsibilities with regard to navigational safety extend to the limits of its pilotage district, which is described in Part 2 of the 1996 Act. These limits include the areas currently designated as traffic separation schemes. Taking the advice I received from the marine survey office, there is no benefit or purpose in including explicit reference to the schemes in the description of the limits, particularly in the company's harbour limits. The intent and spirit of the Deputy's amendments are already explicitly dealt with in the Bill as it stands. For that reason I will not accept the amendments.
Having listened to what the Minister has said, I will withdraw amendments Nos. 1 and 2. On amendment No. 7, however, it seems there is an opportunity to ensure the highest levels of safety by including the traffic separation scheme. The amendment envisages that all the existing traffic separation schemes would be included in the new harbour limit. The Minister might reconsider that before we come back on Report Stage. On foot of that, I will also withdraw amendment No. 7.
I wish to make two points: the Leinster orbital route; and section 3 generally concerning the description of Drogheda Port. I raised an issue about which I got a reply from the Minister's officials. However, I would like to get on the record the fact that it refers only to the seaward side — that is, up to the high-water mark but not inside it. I would like to have total clarity on that point. Some of these areas were not legally under the jurisdiction of the Drogheda Port Company until now. There is secondary legislation which designates these areas but I need a categoric assurance that none of these landward side areas — which are highly residential and in the past have opposed anything that would interfere with the residential nature of those developments — will come under the jurisdiction of the port development. Is that a fair comment?
Yes.
Notwithstanding the fact that we all support the Braemore move.
I understand the Deputy's reason for raising that issue. We did that in writing and I am putting it on the record here. I am informed by my officials that there is no change to the situation from the 2004 boundaries and that this refers to the seaward side, not the landward side. It does not have an effect on properties on the landward side.
So there are no planning implications in terms of that?
Not that I am aware of. However, if the Deputy is talking in terms of somebody being refused planning permission for a house or other residence in the area because there is some port designation, that does not arise in this case.
The second point was in response to the point the Minister made about the Leinster outer orbital route. I accept the bona fides of the Minister and the Department. The move from Drogheda Port to Bremore is one we all support and will facilitate. Without a greater commitment than that given to the Leinster orbital route, which is to take traffic away from the M1 and bring it around the city through counties Meath and Kildare where there has been exceptional development, and the CSO projections show a massive increase in population in those counties over the next ten to 15 years notwithstanding the recession, if Bremore Port proceeds it will ultimately lead to traffic chaos, resulting in economic disadvantage to those areas which will carry much of this traffic. Much of the traffic that goes through Dublin Port may eventually come through Bremore Port. A road network from Bremore is required to take that commercial traffic away from the city. If there is no commitment to the Leinster outer orbital route, except that the Minister said it will be reconsidered post 2012, that is a serious economic disadvantage to the area and will disadvantage the effective operation of the port when constructed.
Does the Minister wish to reply?
I will reply very briefly. I have given the Deputy the factual position and I do not want to mislead anybody. I am committed to this project as is the party of which I am a member, but it is not in the programme for Government or the NDP and is not part of Transport 21. Irrespective of whether Bremore Port goes ahead, the Leinster outer orbital route is a good idea and would be of economic benefit and I certainly will pursue it.
Is it the case that the Green Party opposed its inclusion in the programme for Government? That is the key to this issue.
With respect, the Green Party was not in government when the NDP was drawn up.
No. I know that but I am speaking about the programme for Government. It is expressly not included in that.
It was not included in the NDP when the Green Party was not in government. It was not included in Transport 21. It is an issue that has arisen since then. For that reason it could not be included because of the amount of money involved. The present economic circumstances make it more difficult but that will not stop me from trying.
The Minister said that he and his party supports this development — and I accept that — therefore, the only party opposing it is the Green Party. It is amazing that a Minister of State from that area is not in favour of this development. That is a critical issue.
I will not speak for the Green Party. I am giving the factual position. No money was included in the NDP for that development, nor in Transport 21.
They were Government decisions.
No. They were not. It was not a live issue then.
The Government drew up the NDP.
When the NDP was drawn up there was not even talk of it at that stage. As far as I recollect, it was subsequent to the drawing up of the NDP that the NRA was asked to look at that project and the eastern bypass for Dublin. The reports on those projects came in post decisions on Transport 21 and the NDP. That is the factual position.
When we came to negotiate the programme for Government, the amount of money for the NDP and Transport 21 was already decided and was based on a 4% increase in GDP each year. We are now talking about minus 8% growth. If it is decided to include the outer orbital route a whole range of projects, such as Deputy Connaughton's Atlantic way and the western rail corridor, will have to be taken out. That is the situation we are in.
I appreciate the latitude from the Chairman and do not wish to take away his project in the west of Ireland. It seems to me that the economic development of the greater Dublin area absolutely requires the Leinster outer orbital route. One of the primary purposes of this legislation is to allow port development in the area between Balbriggan and Drogheda, which we strongly support. That the Leinster outer orbital route will not proceed is a bad decision by the Government. I believe the Green Party is absolutely opposed to the proper economic development of the greater Dublin area. That it has opposed it is a reprehensible and disgraceful step, particularly from a Deputy who is from that area.
We are talking about integrated networks. While I would be supportive of the western rail corridor and the key projects in Transport 21, the former Taoiseach, Deputy Ahern, said on one occasion that the outer orbital route taking in Navan, Newbridge and Arklow did not have to be in Transport 21 because the various elements of it were consistent with the major plans of each of the seven counties concerned. That has to be borne in mind.
Bremore will be a major infrastructural development by the State as it involves the creation of a completely new heavy goods port. This will be a major step in the history of the country in terms of its infrastructure. Landowners around Balbriggan have been seeking changes, as Deputy Kennedy will be aware, to various tranches of land. Balbriggan is scheduled in the Fingal development plan to become a small city of over 30,000 people. It is incumbent on the Minister and the Minister for the Environment, Heritage and Local Government, Deputy Gormley, to ensure any development north of Balbriggan is consistent with planning objectives, one of which is the outer orbital route.
I totally support Deputy O'Dowd. As part of integrated transport, a strategic development plan is needed for the greater Balbriggan and south Drogheda area in the interests of this huge project which is so important for the future of the country. I urge the Minister, if not today, to return to this issue and to do what is in the interests of the country and not of a tiny sectional interest, represented by virtually nobody as we will find out in the general election.
I repeat what I said earlier as there are other Deputies present and we could go on ad infinitum on this issue.
That brings us back——
The Leinster outer orbital route was not included in the NDP or in Transport 21. Obviously the NDP and Transport 21 will be reviewed in 2011-12. The NDP will end in 2012 and Transport 21 in 2015. It will fall to be considered whether the Leinster outer orbital route will be put in place. The fact there is no plan for it at present is not in any way hindering development at Bremore. We are a long way from any formal planning being carried out. However, when this commences, I have no doubt that the matters to which the Deputies refer will have to be considered.
Deputy Broughan referred to an investment by the State in Bremore. There will be no such investment. The port company and another private company will be involved in the project. I agree with the Deputy that for a development of the magnitude proposed, it would probably be advisable — I stress that I am not advising those involved — to try, for all sorts of reasons, to establish a strategic development zone in the area rather than trying to obtain planning permission for a port and then for ancillary developments. There would also be a need to ensure adequate transport links were provided. I am of the view that this is the route those involved should take.
Amendments Nos. 3 to 6, inclusive, 38, 39 and 43 are related. Amendment No. 4 is a technical alternative to amendment No. 3, amendment No. 6 is a technical alternative to No. 5 and amendment No. 39 is a technical alternative to No. 38. These various amendments will be discussed together.
I move amendment No. 3:
In page 5, lines 26 to 28, to delete all words from and including "Planning" in line 26 down to and including "2006" in line 28 and substitute "Planning and Development Acts 2000 to 2009”.
These amendments arose on foot of amendments tabled by the Labour Party in the Seanad in respect of citations in sections 3 and 21. Following the debate on Report Stage in the Seanad and consultations with the Office of the Parliamentary Counsel, it was decided that rather than accept the amendments tabled, we should bring forward our own. We agreed to table our amendments to facilitate the Labour Party.
The amendments propose to change the citation in section 3 from "Planning and Development Acts 2000 to 2006" to "Planning and Development Acts 2000 to 2009” to take account of the changes introduced to the Planning Acts by this Bill. It is also proposed to amend the reference to the “Harbours Acts 1996 to 2005”, found in section 21, to take account of an amendment to the original Act in 2006 in the Sea Pollution (Miscellaneous Provisions) Act. The new citation will read “Harbours Acts 1996 to 2006”. This updated citation to the Harbours (Amendment) Bill will also apply to the Long Title thereof. I thank the Labour Party for identifying these issues.
I thank the Minister for responding to our concerns regarding the various citations. Those concerns first arose when we were considering the Water Services Act 2007 which updated the citation in respect of the Planning Acts. That is why we tabled amendment No. 4, which proposes deleting "2006" and substituting "2007". The position with regard to amendment No. 6 is similar. The amendments tabled by the Minister are more comprehensive and achieve our purpose. Amendment No. 39 proposes to delete "2005" and substitute "2006". This is covered in amendment No. 38 in the Minister's name.
This is basically a tidying-up exercise. I thank the Labour Party's legal advisers who noted these important issues in respect of the citations which could have proven problematic at a later stage. I thank the Minister for responding to the concerns we raised.
I move amendment No. 5:
In page 5, lines 32 and 33, to delete "Planning and Development Acts 2000 to 2006" and substitute "Planning and Development Acts 2000 to 2009”.
Amendment No. 8 in the name of Deputy Broughan cannot be moved as it involves a potential charge on the Revenue.
I will not repeat what Deputy O'Dowd and I said on Second Stage in respect of the matter to which the amendment relates. Essentially, however, the amendment proposes an integrated national rail and sea strategy. When preparing for the deliberations on the Bill, we relied on the ports policy statement for background information. That statement was produced by the former Minister of State, Pat The Cope Gallagher, who, happily, is now an MEP.
Happily for whom?
We will wait for the outcome of the by-election to see who will be happy.
The ports policy statement to which I refer is becoming somewhat outdated. As the Minister is aware, the Vice Chairman, Deputy Connaughton, and the committee are attempting to bring forward a report on this matter. This afternoon we will be meeting representatives from the Wicklow Port Company before bringing our deliberations to a conclusion and issuing the report to which I refer.
I tabled the amendment in order that there might be an integrated national rail and sea strategy. This would encourage the boards of the ports to re-examine the position with regard to the final implementation of the policy statement. Does the Minister intend to revamp the ports policy statement or to introduce a Green Paper, especially in light of the changes that have taken place and the matters to which we referred earlier, particularly the development of Bremore?
A review of the ports policy statement is due next year. The committee is carrying out work in that regard in the context of meeting representatives of the ports. In addition, a number of items of legislation, including that before us, must be put in place during the course of this year. The committee's report will help to inform the review and I look forward to the assistance and co-operation of the committee in respect of this matter. The Deputy is correct in that it is timely to review where we stand and evaluate the actions we intend to take during the next five to ten years. The review will be conducted next year.
I move amendment No. 9:
In page 7, line 7, after "harbour" to insert the following:
"provided that those activities are clearly beneficial to the harbour in question and to the Irish State".
This amendment relates to one of the key elements of the Bill, namely, providing port companies with more authority in respect of commercial activities carried on outside harbour limits. There has been criticism by some harbour boards of some of the restrictions, as they see them, particularly in relation to land, and I am aware the Government had to take account of what happened in certain areas in the past in that regard. An attempt is being made here to give harbour and port companies a greater degree of commercial freedom and to ensure that they become more dynamic. For example, developments like those at Bremore, Dublin Port, Shannon-Foynes or Cork are ones that companies themselves must finance, carry out and develop. We need to encourage them in that regard.
With regard to potential developments, I am aware Dublin Port has an interest in Indonesia and some of our other ports have relationships with ports in other jurisdictions. We should, perhaps, qualify this additional freedom through some sort of formula, such as that put forward in amendment No. 9 which suggests we qualify it by stating "provided that those activities are clearly beneficial to the harbour in question and to the Irish State". In other words, we should look further down the line. We would not want a situation to arise where a successful port's core activity in its home port would become secondary to other activities. That is the intent behind the amendment.
Perhaps the Minister will say that the rest of the legislation makes that impossible and that the new Harbours Act and the 1996 Act will ensure that this cannot happen. However, I want to ensure that in the future we will not end up with the tail wagging the dog and that the interests of ports like Drogheda, Bremore and Cork, etc., will not become secondary to the fundamental reason we had harbour boards in the first place. I want to tighten up the legislation in that regard.
I agree with Deputy Broughan. I agree fully that port companies should become dynamic and independent and should be able to negotiate business deals and be free of political and other interference. In principle, I do not have a difficulty with the Bill on this point, but I understand the issue. In section 9, the Minister allows a port company to borrow up to 50% of its estimated assets at the time of borrowing. Given the current situation, with property developers having practically sunk the economy, how will the Minister control this borrowing? I am aware the port company needs the Minister's consent and that he has the consent of the Minister for Finance for these proposals. In light of what has happened during the recession, it is important that port companies do not end up — like some of those people who have ended up in the High Court recently — with completely disproportionate borrowings in relation to the true value of the properties they hold.
I understand it is difficult to get this right. The Minister does not want to fetter the independence or the freedom of the port companies to invest. It is important they can be dynamic and develop their business plans. However, given what has happened in the recent past, how will the Minister ensure that those decisions are always prudent?
The Deputies have hit the nail on the head on this, namely, the tension between giving semi-State organisations freedom and independence to make commercial decisions free from outside interference, political or otherwise, and at the same time the necessity to protect State assets. That is what we are trying to do. I am not attempting to score a political point. Both Deputies welcomed section 5 on Second Stage, but now we have an amendment that might fetter that section. I am not criticising the Deputy because it is important to try to get the right balance between freedom and control or oversight.
We think the way the section is worded currently provides this balance. It gives the commercial freedom to conduct negotiations and come to a deal that may be beneficial to the port company. It is only at that stage that the company comes to the Department of Transport, which will then consult with the Department of Finance. Both Departments may then raise questions or seek advice and this provides an oversight that will ensure that the kind of thing the Deputies fear does not come to pass. We can never be absolutely certain, but this is as near and as good a balance as we can get. If we were to go down the route of making it more restrictive, we would end up with a situation where companies would run to the Department before doing anything and before every stage of negotiation. Departments might then make decisions on the basis of an incomplete picture.
The ideal combination is the commercial freedom to try to identify deals and to negotiate them as far as possible and then to have the overall oversight of the Departments of Transport and Finance. This happens with other State companies. I have had such dealings at other times with companies like ESB International, the DAA and Aer Rianta and have found the arrangements work fairly well. One will not always get everything right, but the system works well in general.
I have a concern with regard to the amendment. It goes against what we all want, namely, the commercial freedom to operate. The balance exists in the legislation as it stands and I do not propose to accept the amendment because it would make the situation a bit more restrictive than necessary. I agree with the Deputies that we must be cautious. These are State assets. However, I feel the oversight of the Departments of Transport and Finance is sufficient to ensure that the balance is kept reasonably well.
The wording regarding the acquiring of assets outside the State does not preclude either the Minister for Transport or the Department of Finance from seeking professional advice from outside consultants. We are all agreed on what we want, but how will this oversight operate? Different types of deals will be negotiated. Some will be simple and open and others may be more complex. I am not concerned about the integrity of the Departments examining these proposals, but what tests will they apply? They will have to apply different tests to different types of proposals. The Minister has said the port boards will need the prior approval in writing of the Minister, but he has not said what tests may be applied in the oversight of the proposals. Does he need to tighten up in that regard? Are there criteria or protocols that will apply based on either the amount being borrowed or some other commercial issue or having due regard to economic conditions?
Let me put it this way as an example. At the height of the boom people went to places like Bulgaria and bought property, but then realised that what had seemed like a great deal was really a very bad deal. They are paying for that now. How will we ensure that this does not happen here? What tests or protocols will the Minister employ or does the Department of Finance already have guidelines in place that will be applied?
If one looks at the past there were definitely some instances where one would wonder how decisions were made. I recall in particular when I was party spokesperson on energy, which was the Minister's previous Department. Deputy Dermot Ahern was the Minister at the time. The ESB went off to New York to organise major financing of several billion euro with JP Morgan and other banks and it was quite obvious that the Minister did not have a clue about it — I think he would admit that. Somebody in the Department might have been vaguely aware of it, but the Minister did not seem to know and he was very upset at the time. I think he subsequently amended legislation regarding the borrowing limits of the ESB. People are confident that the ESB could manage but it seemed to act in an almost unilateral manner which was a little worrying. This is an example of what Deputy O'Dowd is talking about. Does it need to be outlined in such a way that a State company could begin to operate way beyond its original remit? Whatever the merits of that, perhaps a different structure may be appropriate rather than the port company in question.
Guidelines exist for the commercial viability of such projects. Corporate governance arrangements are in place. The practice now in State companies is that ports or companies generally keep the Department informed of any significant developments and they are obliged to make annual reports. On the question of a major project such as Aer Rianta doing deals about duty-free shops in places around the world or the port doing business with Indonesia, the normal procedure is that a fully-fledged business plan would be presented by the company giving all the information about the likely costs, the financing arrangements and the projected profits. A complete picture would be provided. The Department would make its decision on that basis.
The Department of Finance has an extensive amount of rules and regulations regarding capital appraisal guidelines which must be adhered to; there is a pretty good oversight. It is not perfect and we will not make all the right calls all the time, but it is relatively extensive.
I am speaking from memory, and if I am mistaken I will correct the record of the House later, but the incident to which Deputy Broughan refers consists of two issues. The Minister was not kept properly informed about what was happening and the Government was presented with a last minute proposal. From memory, I think the Government was told a decision was required that evening or maybe within a week and it was just not possible to do the kind of appraisals Deputy O'Dowd was talking about. It was necessary to protect the interests of the company and the port. There was not enough time and the Government said it had not been given sufficient time. Since then there has been a change and there are better protocols in place where early warnings or notifications and broad outlines are given.
This is all commercially sensitive information. When the time comes for a ministerial or Government decision, people have had time to make an assessment. When we were given the initial case about Bremore port, we were concerned about the financial details and that the port would not become involved in a business that would start draining resources from the parent port. This aspect is covered in the Bill. We had the initial proposal assessed and this would always be the case if the Department is in any doubt.
I wish to tease out the discussion a little more as this is a key part of the Bill. The Department of Finance may require value for money audits and so on and it may require certain protocols before the Government will continue investing in a particular project. I note that we are one step back from this as this is a private company, but it has State assets and we want to ensure that these are secured. Does the Minister ever envisage a case where a Minister would consent to a decision of a departmental official with regard to value for money guidelines? For example, in 2003, the metropolitan area networks were proposed by the State for the installation of broadband in a certain number of towns. The Government went ahead with phase 1 and then phase 1a. In the same year it proceeded to invest a further €80 million in broadband, notwithstanding the fact that no value for money audit was done and that Department of Finance guidelines were breached. The point I am trying to make is to find out whether the Minister will ensure that there will be value for money and that Department of Finance guidelines for projects will be adhered to in every respect to ensure that money will not be wasted. The Minister is allowing these companies to borrow up to 50%. We all want this project to be successful and we all want to assist it, but it could also be a disaster. We must ensure that everything is right. What assurances can the Minister give on value for money?
I believe in State enterprise. I think we can have dynamic, publicly-owned companies. Last night, we were talking about Aer Rianta when it managed Birmingham Airport and Moscow Airport and we were quite proud of the company for garnering extra resources for the development of Shannon, Cork and Dublin airports. There must be an element of commercial freedom allowed and the companies should not be strapped down. This is related to the next amendment. I ask the Minister to consider re-examining this amendment before Report Stage so that some kind of formula to protect the public could be devised. On that basis, I will be prepared to withdraw the amendment.
I will have a look at that. I wish to make a general point that guidelines are just that. Recommendations are usually contained in a file with the pros and cons but a Minister may not always agree with the recommendation.
I accept that protocols will be followed.
I accept what the Deputy is saying but that would be the intent. The guidelines would be adhered to. Value for money would also be a consideration. Many of these are done on a non-recourse basis. If the project fails, we try to ensure it does not affect the parent company. I refer in particular to companies I am familiar with, such as the airport and ESB International. Domestic electricity prices cannot be increased on the basis of ESB International's activities. In that sense, it is done on a non-recourse basis.
I move amendment No. 10:
In page 7, line 26, after "guidelines" to insert the following:
"and fully cognisant of the priority of maintaining port lands in the public interest for public transport uses and for the public good".
This amendment relates to the debate we have just been having. The selling, leasing and acquiring of land is an important issue. The Minister will recall that on Second Stage, I referred to a number of controversies that have developed over the years, such as the sale of 27 acres at Dublin Port near East Wall Road and the Point Depot to the Anna Livia consortium. I queried whether a tendering process should have been used in that case. I also mentioned the 2005 Irish Glass Bottle Company debacle, when South Wharf plc tried to buy lands it was occupying at Dublin Port for a pittance. The then Minister had to introduce and rush through an amendment to the Landlord and Tenant (Ground Rents) Act 1978. Further concerns have been expressed to a number of members of the committee by our constituents. Citizens in the mid-west area have made major complaints on foot of the Deloitte investigation into the actions of the Shannon Foynes Port Company. That the matter is now being handled by the Garda Bureau of Fraud Investigation underlines the need for a Bill of this nature to provide for much better governance of boards at this level.
Many harbour boards, historically and of necessity, are sitting on major land banks. Dublin Port has proposed to increase the reclaimed area near Clontarf from 600 acres to 650 acres. Similar proposals will be made by other port companies. It is obvious that major reclamation will be needed for the Bremore project. We are familiar with what happened in Rosslare and Waterford in the past. We also know about the planning saga in Ringaskiddy, County Cork. The leasing, sale and purchase of land is subject to significant requirements. While I understand what the Minister is trying to achieve in this section, which states "a company shall have regard to any Government policy or guidelines in relation to the acquisition of land or the disposal of land, as appropriate, by State enterprises which is or are for the time being extant", it would be advantageous to amend it slightly. Amendment No. 10, which proposes that such a company should be "fully cognisant of the priority of maintaining port lands in the public interest", may have to be tightened up a little. I suggest that the public interest should be paramount. Following the disgraceful and appalling collapse of our banking structure late last September, the Government introduced a number of Bills in which the upholding of the public interest is a fundamental ambition of public policy. The Labour Party disagrees with the Government on how the public interest should be protected in relation to some of the banks. Fine Gael would probably make similar criticisms. I believe we should maintain port lands "in the public interest", for example for public transport uses, particularly at a time when we should be encouraging the integration of freight and rail and trying to use rail to an increasing extent. This is generally important for the public good. A few months ago, I was delighted to tour the Galway West constituency. The Vice Chairman will be disappointed to hear I have not gone to Galway East yet.
The Deputy can go tomorrow.
It is one of my ambitions. I will go there to meet Councillor Colm Keaveney and my other colleagues in the area. When I went to Galway West, I met the harbour authorities and examined some of their proposals. They did some amazing work in the harbour area in advance of the recent yacht race. One of their proposed developments involves moving the harbour out of the centre of town, which would be important. This amendment, which is related to amendment No. 9, proposes that the public good, including the need for public transport services, be taken into consideration. Port usage should be the paramount requirement. Three or four years ago, I objected to the ludicrous and crazy proposal that the new national convention centre in Dublin would be built on port lands, on stilts over the River Liffey. I do not know where the proposal, which involved allowing ships to come in and out under the centre, came from. It was like something out of the comic pages of Phoenix magazine. I think another State company may have been involved in it. The public interest should always be the primary requirement. Having said that, I understand that concern has been expressed by chief executives and boards about the restrictions being imposed on their ability to use port lands as they see fit. This section of the Bill, which will require them to consult the Department’s guidelines on acquisition and sale, represents a step forward in general terms. It has been suggested that ports achieved good value in the past because they acted fairly independently. While that is a consideration, we have to consider the overall public good. It is critical that all transport modes are integrated with the port itself. That, rather than some of the crazy projects that were pursued in the past, should be the primary use of these lands. People might allege that some of the projects in question resulted from weak governance by boards.
Section 11 of the Harbours Act 1996 clearly states that the "principal objects" of a State commercial port company include taking "all proper measures for the management, control, operation and development of its harbour and the approach channels thereto"; providing "such facilities, services, accommodation and lands in its harbour for ships, goods and passengers as it considers necessary"; and using and managing "the resources available to it in a manner consistent with the objects aforesaid". It is clear that when consideration is being given to the acquisition or disposal of land, port companies have to remain focused on the continued development of their harbours. Under the port policy statement, port companies are permitted to dispose of non-core assets to fund development. In many cases in the past, such forms of disposal proved very beneficial to the port companies and the State as a whole. For example, they provided funds to facilitate continued infrastructural development.
This Bill makes changes to the requirement on port companies to have regard to Government policy on the disposal and acquisition of land. Not only will it correct a drafting imperfection in the original legislation, but it will also ensure consistency. For those reasons, I am not inclined to take the Deputy's amendment on board. His proposal is adequately catered for in the Bill as it stands. As the Deputy suggested, his amendment could end up subjecting the port companies to additional red tape when they want to dispose of non-core assets. It is to be presumed at all times that State companies will act in the public interest, which in this case means the development of ports in line with the guidelines I have mentioned. I am concerned that the use in the Deputy's amendment of the phrase "maintaining port lands in the public interest" could be deemed to mean that port lands could not be sold at any stage, even to raise capital for other worthy developments in the port in question. This would imply one could not sell port lands at any stage, even to raise capital for other worthy developments in the port in question. The amendment would create a serious doubt. While this is not what the Deputy intended, it could be an unintended effect. If the Deputy agrees to withdraw the amendment, I will examine the issue to determine whether the expression "in the public interest" or a similar phrase can be inserted on Report Stage. I am concerned about the possible effect of the amendment in the hands of a good lawyer.
I will withdraw my amendment. I have had another look at the 1996 Act. The Minister referred to section 16 of the Act, which relates to sale, lease and acquisition. Subsection (2) states that land shall not be less than its open market value. I am interested in how leases are managed in this context. I will table another amendment on this matter later in the proceedings. On the basis of the Minister's assurances, I propose to withdraw the amendment.
I do not oppose the section, as indicated. I understand the purpose of the section is to transfer new powers to An Bord Pleanála.
I understand the Chairman is on the other side of the planet.
He is staying away. Perhaps he is on Mars.
I will not repeat what I said in the Dáil but the Chairman does not live like the rest of us on this planet. He sent me a note in which he ruled inadmissible an amendment I had proposed to table on the ground that it imposed a charge on the State.
The amendment to the Act proposed in section 8 is key because it proposes to remove the right of local authorities to nominate members of boards. On Second Stage I strongly opposed sections 8 and 11 on the basis of the Minister's decisions on local councillors and worker directors. The sections provide for the deletion of the reference to automatic nomination of local authority directors and confine the number of worker directors to one regardless of the size of the port.
I am pleased that my party increased its representation on local authorities to approximately 130 members. The Vice Chairman's party also did well in recent elections. Labour Party councillors and members of other parties oppose this measure because local authority members have a good track record on the boards of ports and have served them with great energy, application and distinction over the years. My colleagues in Dublin, including the lord mayor, Mr. Paddy Burke, have served with great application and distinction on the board of Dublin Port.
When one looks back at previous controversies on boards it has often been Government appointed board members who have allegedly brought boards into disrepute. A recent controversy surrounding Dublin Port related to its chairperson rather than local representatives serving on the board. I note that while the 2005 report proposed a reduction in the number of local authority members of the boards of ports, it did not propose taking the draconian measure proposed by the Minister.
Given that the Minister will have powers of appointment, I fear one will have to be the chairperson of a Fianna Fáil Party cumann or comhairle ceantair or Dáil ceantair to be appointed a member of a port board. Abolishing the statutory provision on councillor representation is a retrograde step for democracy. Ports have a similar geographical relationship to their hinterland as people have to their county football and hurling teams. In the case of the capital, Dublin Port, Howth Port and Dún Laoghaire Port have strong local connections with their respective hinterlands.
The Minister asked me an important question on Second Stage when he questioned whether we should move to a point where local elected representatives are appointed to airport boards. That is a good suggestion. As someone who lives under the flight path of Dublin Airport, I believe we should have local democracy.
The Deputy is a little removed from the flight path.
No, I am not.
The Government jet flies over his area.
In recent weeks, due to the weather——
Perhaps a flight passes over Santry once every six months.
As Deputy Kennedy will be aware, the aircraft take off into the wind in an easterly direction.
Having a local director on the board of the various airport authorities would be a good step. It is astonishing that the Minister now stands alone and does not appear to require a Minister of State since the recent reduction in their number. As I noted on Second Stage, the former and very lamented Minister of State, Deputy Noel Ahern, stated with regard to the Jonathan Packer performance audit in 2001-02 that it recommended abolition of the statutory provision for local authority directors. While the 2003 review concurred with this recommendation, there did not appear to be any basis for taking such a decision.
The ports are much too important to be used for any form of political patronage. I give a commitment that the Labour Party in government will restore the presence of locally elected councillors on the boards of port companies. We should allow local councillors in the various councils to decide, on the basis of the results of local elections, who will be the appointees to the port boards.
The Minister discussed at length on Second Stage the necessity to have much smaller boards. He stated one cannot have a position where a board of a port has more members than staff. Having examined this matter, I found that Dublin Port has 155 employees and 650 pensioners; Cork Port has 121 employees and 159 pensioners; Shannon-Foynes Port has 60 employees; Waterford Port has 50 employees; Dún Laoghaire Port has 50 employees; Galway Port has a staff of 15; New Ross Port has a staff of 14, as does Drogheda Port; Dundalk Port has seven employees; and Wicklow Port has three staff. As the Minister will be aware, representatives of most of these ports have come before the joint committee. Once the Bill has been enacted only the ports of Dundalk and Wicklow will have fewer staff than board members.
In other jurisdictions, ports have larger boards than those proposed in the legislation. For example, the Belfast Harbour Commissioners have a 15 member board, four of whom are councillors and two of whom represent trade unions. The great port of Hamburg has a board of 22 members, including two worker directors. The board of New York-New Jersey harbour has 11 members, while the board of Singapore Port has 12 members. The great port of Antwerp has 18 members on its board. The Belgians must have a keener view of democracy than we have. Antwerp, one of the greatest ports in the world, although it is inland, has ten councillors on the board.
The case has not been made for this grotesque reduction in the size of the boards in such a way that the local government contribution is removed. It is a retrograde development that is bad for local democracy. I urge the Minister to re-examine the matter. There is a danger that in future if one is a local representative, one will need to be of a certain political persuasion to be a member of the board. I urge the Minister to not interfere with the representation of local councillors on port boards. In general, they have done a pretty good job. I am reminded of the saying, "If it ain't broke, don't fix it".
This is a very important issue. As the ports become more complex and effective organisations with a greater brief in terms of their business plans, it is important that the joined-up thinking between the port development companies and local authorities should continue. As I understand it, the Minister proposed to reserve the right to nominate at least one public representative to the port companies. The principle of involvement will still exist, except the power will be retained by the Minister. There is a weakness inherent in that.
In Drogheda port company some years ago we had an excellent chairman, Mr. Séamas Davis, who was appointed by Fine Gael as it happened. He did an excellent job and drove the port company in terms of new development. Once the Government changed he was unceremoniously booted off the board. One might argue that we would do the same thing, but the point is that where people are doing an excellent job they should be allowed to continue. The Minister should not retain to himself the power to appoint a public representative to harbour authorities.
One of the problems that arise is where one has a number of local authorities involved. Currently Louth and Meath county councils and Drogheda Borough Council all appoint representatives to the harbour authority. I do not see why the connectivity between local government and the port authorities should not continue. Like Deputy Broughan, I will oppose the section. The Minister accepts the principle of public representatives on the board. If only one local authority is involved, it could nominate that person. The difficulty is where there is more than one local authority. That is where the argument is for two or three public representatives. That could be resolved by rotating the position between local authorities.
My core position is that local authorities should nominate one of their members to be on the port authority board. That would provide accountability and transparency. It would be the decision of the people elected to local government to nominate the member to the port authority. If there is not more than one such person the position should rotate between the local authorities that would previously have nominated members to the port board. The General Council of County Councils has contacted me and other Members. There is room for a compromise in the thinking on the issue. The fundamental point is that it is the authorities themselves that should make the nominations, as opposed to the Minister of the day.
All of this must be put into the overall context, namely, that we are reducing the size of the boards to make them more efficient and effective and more commercially orientated and driven. As a consequence of reducing the numbers there have to be fewer members on the board, be they employees, local authority directors or anybody else. That is the basis for this measure. We are concerned here with commercial organisations that are being asked to make commercial decisions and profits in the long run.
I will not denigrate the contribution made by local authority members, many of whom made outstanding contributions to port authorities. There were also instances where they made less than good contributions, but in that they were no different from Government nominees, employee nominees or anyone else. We are all human. Sometimes people work well and sometimes they do not. The reason for a reduction from 12 members to eight is that a port company operates on behalf of the State and in its best interests and a Minister is answerable to the House on the activities of port companies. If people on the opposite side are on this side at any stage and are in my position or that of any other Minister, they would be of a similar view, that they what is needed is people on the board that they know, trust and can depend on to deliver on the company's mandate. It is in that context that the change is to be viewed, not as a slight on any individual or group of individuals.
Deputy Broughan made my case for me when he referred to port companies around the world. Port and harbour boards in Antwerp, Singapore and Hong Kong, which is the largest port in the world, have generally speaking an average of 12 or 13 members. Some go as high as he suggested but others do not. They are much bigger, even than Dublin Port, big and important as it is in the context of this country and its exports. We are concerned with ports that are considerably smaller but nonetheless they need to be as commercially driven as those ports and they need to grow as much as they possibly can. Rather than being convinced by the argument the Deputy has put forward he sustains my argument for eight members on port boards. That number is too many on some of them, but it is a reasonable compromise and it is sufficient for a port the size of Dublin. It would not be necessary for smaller ports, especially in the current economic climate.
The current membership of 12 is an inheritance from a previous existence as harbour boards, where in the past large and unwieldy boards were the order of the day because everybody wanted to get somebody on to them to protect their interests. That is not what port boards should be about currently, which is why we need to slim them down. Ports have undergone a significant organisational and cultural change since corporatisation was initiated under the 1996 Act. The Deputies mentioned the Packer report and the high level review of State commercial ports. Both recommended a reduction in the size of port bodies. That fed into the ports policy statement, which concluded that there was a clear need for the boards to be smaller and more focused in order to further the commercial objectives of the company.
The effect of the legislation on ports policy is that people who have a direct vested interest in the ports will also be excluded from boards, including those who can benefit substantially from decisions that are made by the board. We are implementing a policy. With regard to local authorities, I have agreed, as a reasonable compromise, that one of my nominees will be a member of a local authority adjacent or contiguous to that of the port. Deputy Broughan wonders whether the chairman of the local cumann or comhairle dáilcheanntair will be involved. While I am impressed with his knowledge of our organisational structure, I keep answering this question.
I come from a Fianna Fáil background.
I know that. The Deputy is another person who did not succeed at a selection convention at some stage and decided to leave the organisation.
I was too young for selection.
I will not make the decision on the basis of whether the candidate is a member of Fianna Fáil. It will not be compulsory to be a member of the party, yet membership of the party will not militate against one. This will be the case when I am Minister but it may not be the way in which people in other parties operate.
Deputy O'Dowd made a suggestion to which I will give some thought. It does not need to be included in the Bill because the principle of having one local authority director from a contiguous local authority is acceptable to me. It was accepted by way of Seanad amendment. I will give some thought to what the Deputy said on the selection process.
That would be fair. It would meet the Minister's requirements on having a slimmed down board and stand up to the public representative test.
I will give that consideration and talk to people about it. Under section 177 of the Local Government Act, councillors are obliged to withdraw from deliberations on matters in which they may have an interest other than that of public representative. In November 2008, the three Dublin City Council councillors who sat on the board of Dublin Port Company had to withdraw from a council discussion on the company's planning application to reclaim and develop 21 hectares of foreshore. The other side of the coin is that it is not desirable that councillors be denied the opportunity to carry out their normal planning functions. I am not saying it should be a deciding factor. The benefit of having at least one local public representative is that it allows closer liaison between the local authority and the port in terms of developments. I am not for turning in this case except in so far as I will give consideration to the nomination procedure for the one nominee with a view to achieving consensus. Deputy Broughan may have indicated this earlier.
On that issue, the legislation would have to indicate how the councillor would be democratically chosen. Based on my experience of serving on boards, I am still not convinced by the Minister's plan to reduce the number on the board. Probably everyone in the room has sat on a board and we know people often wonder what is the ideal number to have on a board. One can have a board that is too small, as we all know in respect of local soccer or GAA clubs. A spread of opinion is required to ensure the business of the institution in question is done in the most efficient way possible.
It is striking that the port's chief executive will be on the board. One wonders whether this is desirable in terms of governance. We note from recent AGMs of banks and other institutions that the chief executives do sit on boards. My experience suggests it is better for a chief executive not to sit on a board. In schools, for example, the principal serves as secretary of the board.
I agree with the Minister's decision to remove port users from the boards in general terms because it is easy for a conflict of interest to arise. I am not sure that in the case in question, reducing the board to the size proposed is necessary. If one considers other examples from the commercial world, such as Independent Newspapers or whatever company one chooses, one will very often note perhaps 12 or 15 board members. A broad spread of opinion is required. I do not see anything wrong with the present system in so far as it brings itself to bear on councillors. Every one of us either served as a councillor or saw others doing so and we realise they did a good a job. I am not convinced about what the Minister is proposing and, as a consequence, I oppose the section.
Amendment No. 11 is consequential on amendment No. 12 while amendment No. 13 is a technical alterative to amendment No. 12. Amendments Nos. 11 to 13, inclusive, may be discussed together.
I move amendment No. 11:
In page 9, line 36, after "shall" to insert ", subject to subsection (2),".
The Government amendments are relatively minor and technical drafting style ones which the Office of the Parliamentary Counsel has advised are necessary to protect the validity of any future ministerial order should one be made under section 9(2).
The Mulcreevy and Cityview Press Limited judgments have the effect of ensuring any ministerial order merely builds upon the principles and policies established in primary legislation and does not seek to amend or appeal primary legislation. It is the Parliamentary Counsels opinion that an amendment to the wording is necessary to create legal certainty with respect to the section's compatibility with those judgments. These amendments in no way alter the intent or the substance of the section as originally proposed.
With regard to amendment No. 13, as indicated in the Seanad debate the wording as drafted is standard drafting style. If it were changed, it would be at variance with other similar references throughout the Harbours Act 1996, for example, section 17(2), and other legislation. Acceptance of the amendment has the potential to result in legal problems regarding existing legislation where the wording is widely used.
I move amendment No. 12:
In page 10, to delete lines 5 to 8 and substitute the following:
" "(2) In respect of a named company or a named subsidiary and for the purposes of paragraph (b) of subsection (1), the Minister may, with the consent of the Minister for Finance, by order provide for a percentage to apply, other than 50 per cent, having regard to—”.
I believe the Minister is going to come back on Report Stage and deal with the issues we raised as regards section 5, in relation to the whole issue of the protocols.
I move amendment No. 14:
In page 10, paragraph (b), between lines 26 and 27, to insert the following:
"(ii) to insert in paragraph (b) the following new subparagraph
"(iii) an annual report on the status of all leases of the company's lands.".".
This is concerned with the furnishing of information to the Minister in annual reports and so on and it relates to some parts of the earlier discussion. I wanted to insert after paragraph (b) a new subparagraph to do with an annual report on the status of all leases of the company’s lands. This relates to the fact that leases, certainly in Dublin Port and possibly others, were allowed to deteriorate as the decades went on. We rushed legislation through the House to prevent leaseholders who had been sitting on leases, perhaps for decades, from being able to acquire substantial tranches of land within the harbour area, at a fraction of their real valuation, based on existing land and leasing law. I believe it would be an improvement to the Bill that the management of the leases, the stevedores and all the other companies within the port area should have an up-to-date look at this aspect.
Public representatives, certainly in local government, have always had concerns over land banks belonging to county and the city councils in terms of the extent to which the local authority had carried out its proper registration and management of leases. It is an ongoing concern in terms of publicly owned land. We had that legislation before but I was hoping there could be an ongoing look at this area. I recall that at one of the many briefings over the years, at Dublin Port headquarters, the chief executive was able to outline land where leases were not satisfactory and where people had, effectively, acquired liens on substantial portions of the 600 acres, perhaps in ways that were not intended by our predecessors. I thought it might be a useful addition to the Bill if, on an ongoing basis, we were to keep an eye on leasehold type arrangements in the port areas.
Section 28 of the 1996 Act lists numbers of issues the company has to include in its annual report to the Minister. That includes a statement of any significant developments that occur during the year, including any acquisitions or disposals of land, as well as a statement that all relevant guidelines issued by the Minister for Finance in regard to the accounts and financial affairs have been adhered to. There is a provision relating to the disposal of land and it explicitly states that disposal by means of a lease must also be included in the annual report. Therefore what the Deputy is trying to achieve is already provided for.
I am reluctant, generally, to put too much of a bureaucratic burden on companies such as this but I take the point the Deputy is making in regard to keeping an eye on everything that is going on and the difficulties that arose in the past which I hope, with modernisation, will not occur in the future. With regard to leases, the current requirements would highlight any significant developments over the course of any given year. If a specific concern arose regarding a particular lease, the Minister will be able to request further information on it.
I will undertake to have a look at this matter again and get perhaps more detail to satisfy myself on whether the intent of this amendment is being met by the current reporting procedures. If it is not, having consulted, I shall attempt to table an amendment on Report Stage. If it is, I shall report back to the Deputy on Report Stage and let him know that if he includes the amendment then we can address it.
I accept what the Minister is saying and withdraw the amendment for now.
I move amendment No. 15:
In page 12, subsection (1), line 17, to delete paragraph (c).
The purpose of this amendment is to delete paragraph (c). In effect we are deleting section 30(6) of the principal Act of 1996. The existing subsection provides for the local authority members of harbour authorities. Effectively, by agreeing to that paragraph (c), which means the Minister is deleting subsection (6), he is removing the provision for councillors. It is similar to the issue that gave rise to the division we have just had, and again I oppose that.
I agree with Deputy Broughan.
I also agree.
I move amendment No. 16:
In page 15, line 34, after "circumstances" to insert the following:
"and after all relevant consultation with maritime stakeholders has taken place".
This is the first of a number of amendments that deal with pilotage. This one is concerned with pilotage charges. I am seeking here to insert after "circumstances" in line 34 on page 15 the words, "and after all relevant consultation with maritime stakeholders has taken place". It was considered by the Association of Maritime Pilots of Ireland that significant changes, such as section 13, were happening without wide-ranging consultation. Given the crucial role that pilots undertake in each harbour area, it is not in the best interests of safe pilotage that significant changes regarding pilotage legislation are being provided for in the Bill without all the matters concerned being considered and full and proper consultation with the interested parties.
There was concern here also, that this and some of the other proposals in the Bill could have significant impact on the employment of pilots and could lead to outsourcing which might militate against the discipline of modern safe pilotage practices.
There is a general feeling in the pilots association and across the industry that pilots have a crucial role in ports. There was recently a tragedy in the port in my constituency when a collision occurred and a yacht was effectively run over. It is critical that proper consultation takes place. There is a feeling that elements of the Bill dealing with the safety of navigation and the running of every port have not been fully discussed. There certainly has not been proper consultation with the Association of Maritime Pilots of Ireland.
There is a perception among the maritime pilots that these decisions are being taken for short-term economic reasons to reduce costs. We must be reminded that for ports along the east coast, the pilots tell us that on any given day there might be 100,000 people on the Irish Sea. The safety of these people from Rosslare up to Carlingford and beyond Belfast is critical. The pilots feel that a system of consultation has not been introduced. I am seeking to amend this by including "all relevant consultation with maritime stakeholders" in the Bill, particularly in regard to charges for the profession. This should certainly include the Association of Maritime Pilots of Ireland.
I agree with that. I have just had a representation from Mr. Bob Kiernan, chairman of the AMPI. The meeting came after the closing date for amendments, but the association is concerned about the retirement age of pilots. If it is in order, perhaps the Minister will respond. He said that the association anticipated that the retirement age would be in the Bill and that an amendment in the Bill would set it at 65 or 66 for pilots.
We are not making any great changes here. There are no significant changes being brought in by this section. We are trying to extend the current system for harbour charges, contained in section 13 of the 1996 Act, to include a system for pilotage charges. Under section 13 of the 1996 Act, one port company may request another to amend the amount of charges it imposes if the former company considers that such an amount is not fair and equitable having regard to all the circumstances. This arises where a vessel is travelling to a particular harbour but must pass through the jurisdiction of another harbour. It is considered appropriate, in the interests of consistency and equity, to ensure that mechanisms outlined in the Act apply to the imposition of pilotage charges, in addition to the harbour charges. That is a fair and reasonable approach and the system of arbitrage is also in place. If the relevant company fails or refuses to comply with such a request, either company may refer the matter to a person nominated by the Minister for final determination. That is a similar provision contained in section 13 of the 1996 Act.
Deputy Broughan's proposed amendment does not recognise the current legislative position. The subsection to which he refers states that different port companies may charge different rates for the pilotage services they provide. It is a clear reflection of the position on the ground whereby the charges in one pilotage district might be different from those imposed in another due to the differing circumstances in different pilotage districts. It is proper that legislation recognises these differences.
A commercial port company will always be cognisant of the impact of any change in the rates it charges for particular services and will act accordingly. I do not accept the need to insert a reference to consultation. Consultations have taken place on this aspect of the Bill with the AMPI and with the Irish Ports Association. They are aware of the amendments.
The issue of the age of pilots was raised, but this is not included in the Bill. We had representations on behalf of a pilot through Deputy Broughan. In the course of discussion on this Bill, the Minister of State indicated that we would try to review the position and put it into the Act. That has not proved to be possible in the time available and I assure the Deputy that we intend to use the next available Act to do this. The Minister of State at the time gave the commitment in good faith, but it has proved to be more legally complicated than we anticipated at the time. There are health and safety issues involved, as well as age issues and so on. However, we hope to resolve this when we bring the Merchant Shipping Bill 2009 before the House.
At the end of section 14 I proposed to substitute "65 years" for "60 years". The Bill does not make sense. Section 15 refers to pilotage exemptions and this includes holders of existing certificates of competency and the master and chief mate, and nobody has complaints with that. It also includes an officer in charge of a navigational watch. There is no retirement age for that officer, nor for the master or chief mate. On the other hand, the Minister seems to say that certain pilots have to retire at 60. I put a case to the Minister and to his predecessor about a particular pilot who felt very unjustly treated on this issue. The AMPI rightly stated that section 69 of the 1996 Act was a draconian measure as no provision was made in the past ten or 12 years for this enforced early retirement. There is also an anomaly whereby pilots employed before 1996 could continue to be employed in a port until the age of 65, whereas others employed in the same port must retire at 60 without proper provision for a pension.
The Association of Maritime Pilots of Ireland, AMPI, was strongly of the view that its members, instead of being treated in this arbitrary manner, should have the same option as all other workers in the State, namely, to continue in employment until the age of 65. The association has pointed out that prior to the 1996 Act, there were pilotage committees whereby ships' agents and all other stakeholders, including pilots, were able to meet on a regular basis. Although the then Minister, Deputy Gilmore, did not abolish these committees, they were effectively abolished by the port boards. These provisions of the Bill constitute a complete anomaly.
I welcome the Minister's good faith in undertaking to introduce this change on the next occasion but I do not see why it cannot be done in this legislation. I accept the Minister's point that he will have to examine the conditions of pilots currently practising their trade. However, I see no fundamental reason that my amendment No. 17, which was produced in response to the strong case made by the pilots' representatives whom I met some time ago when this legislation was being prepared, cannot be accepted. Moreover, this is an issue that is under review in the broader sense. For example, retirement age and related matters are part of the discussions in regard to Government expenditure. I understand the notion of compulsory retirement will have be reviewed in the context of the European Union directive on anti-ageism, which was supposed to be law from 2006. As I understand it, that directive requires that no worker can be obliged to retire at a specific age if he or she remains fit enough to continue in employment. In other high-safety professions, such as airline pilotage, one often sees people continuing to work past 60 years of age. The maritime pilots have made a strong case that this provision represents an anomaly.
Furthermore, section 15 makes a nonsense of the provision regarding retirement age because there will be no way of knowing the age of the officer in charge of the navigational watch on a ship from a foreign jurisdiction. My amendment No. 18 proposes to delete lines 11 to 13 of section 15 in order to ensure that the holder of a certificate of competency can only be a master or chief mate. There is an international standard for pilotage organisations, as recommended by the European Maritime Pilots Association, EMPA, and the International Maritime Pilots Association, IMPA. The European Union is also expected shortly to introduce its own standard. In this context, there are clear problems with what the Minister is proposing in that it may lead to a situation where unqualified persons will be in charge of ships in Irish harbour areas. In addition to amendment No. 18, my amendment No. 19 refers to "the highest standards of internationally recognised pilotage qualifications and medical fitness". My amendment will ensure the master and first mate would have to adhere to those requirements, so that we would not have a situation where whoever happened to be on watch at that particular time could take charge of a ship in one of our ports.
I urge the Minister to give serious consideration to amendments Nos. 16 to 19, inclusive. As I said, section 15 makes a nonsense of his failure to extend the age limit to 65 years. There are important safety issues to consider. Section 15, as currently drafted, would allow pilotage exemption certificates to be issued to any officer in charge of a navigational watch. This goes way beyond any accepted European Union or international practice and would permit inexperienced and novice pilots to pilot ships, including tankers, in and out of Irish ports. It is generally accepted that only officers who can be granted a pilotage exemption certificate should be the master or first mate. In other words, they are the only officers capable of taking command of the ship. The existing measure undermines the provision of all pilotage services and safe navigation in all State ports. It introduces an unanticipated risk that may well have implications for the maritime insurance industry. As part of our debate on the Merchant Shipping Bill 2009, I tried to initiate a discussion on the fact that some crews bringing in goods to our ports are living in conditions of virtual slavery. There is concern that the standards overseen by some officers from the Far East, eastern Europe and so on, who are now substantially the officers in charge of ships coming to our ports, are unacceptable. I urge the Minister to give careful consideration to these critical amendments, beginning with the abolition of the unfair requirement of retirement at age 60 for maritime pilots.
The Deputy went on a fair cruise in making the case for his amendments.
The Vice Chairman has been helpful in his attitude, which will allow us to get through the amendments quickly. I too received representations from the chairman of AMPI, but the date for submission of amendments had already passed. He made the case that the provisions in the 1996 Act have worked well and are very liberal compared with other European countries. Many countries have no reciprocal arrangements for Irish mariners. In other words, when arriving or departing those ports, they must take an authorised, fully qualified pilot. He observes that this is not necessarily custom and practice in Europe in general. By opening up this issue, it would be legally possible, for example, for a low-ranking officer to obtain a pilot exemption certificate for ships carrying oil, gas or toxic material, with the associated risk of a serious accident. I appreciate the Minister is dealing with several amendments but I wanted to make that case on behalf of this individual.
I add my support to the proposal that retirement age for maritime pilots be extended from 60 to 65 years. I too have been contacted by pilots' representatives on this issue. The Minister has effectively conceded the point that they were operating on the understanding that the opportunity would be taken in this legislation to effect that change. I am aware of one individual who is approaching the retirement age of 60 and for whom it is critical that the issue be addressed in this Bill. While I accept that legislation cannot be made on the basis of one individual's needs, I support the points made by Deputies Broughan and O'Dowd. The Minister referred to some difficulties in including the provision in this Bill. Will he explain those difficulties? Is there any way he can reconsider his approach? A failure to do so will cause extreme hardship. In the case of the individual to whom I referred, his pension scheme does not kick in until age 65, meaning he will lose five years of pensionable service.
I have indicated that in so far as possible, the principle is accepted. However, it is precisely because I must give due consideration to all aspects of the matter that I cannot introduce the change at this time. Following advice from our legal advisers, we have had a consultative process both internally and externally. It is permissible to have age limits in legislation for different occupations but there must be a good and legitimate justification for so doing, such as on grounds of health and safety, fitness and so on. For example, they are in place for the Garda Síochána and the Army. Consequently, a limit per se is not against the law or against European directives, provided one has legitimate justification for it.
My initial understanding is that this limit of 60 years of age was made on the basis of issues pertaining to health and safety. As for amending the legislation, it was brought to my attention that if I did so to increase the age limit, it could have an effect on the pension rights of existing employees. Contractual commitments have been made and changing the legislation without taking such matters into account fully also can affect a contractual commitment between two parties. The kind of issues that have arisen and which must be resolved pertain to fitness, health and safety and so on, as well as being able to draft legislation that covers everyone in this regard.
In the time available to my Department, competing demands arose in this regard. On the one hand, there were demands regarding the proposed developments, extension of boundaries and the consequent financial implications, while on the other hand this issue is of legitimate concern. However, it was not possible to make the necessary changes to take into account all these issues in time to give effect to a suitable amendment. I intend to change this provision at the first available opportunity. While I am informed that it is not possible to so do within the current timeframe, I will do it at the next available opportunity. To be helpful, I will not address the other issues regarding later amendments until the select committee reaches them, at which time I will respond to those points.
I note the passage of the Merchant Shipping Bill through the Dáil and presume it will not be completed until the autumn. I ask the Minister to give a commitment that he will consider including this provision in the Merchant Shipping Bill, which presumably will come before members later this year. As for the general discussion on this matter, it is fair to state that all such age limits will rise. The Minister referred to public servants such as gardaí, teachers and so on and in general terms, it is likely that such age limits will rise. Certainly, there no longer will be a compulsion that one must retire at a particular age. For example, in respect of the Garda Síochána, it can be a pity to lose highly experienced and dedicated senior gardaí. A senior garda recently took the matter to court because he wished to continue working into his 60s, and rightly so, because much expertise is lost. This matter must be examined from a macroeconomic perspective and perhaps the pilots' demands or requests are not out of line in this regard. While I acknowledge the Minister's point on contracts and so on, were that the case, one never would be able make changes. Perhaps people should be informed that the intention is to reconsider this matter and that it will be addressed within a matter of months. The Minister should indicate whether it will be possible to include this matter within the Merchant Shipping Bill.
Yes, I intend to so do within the Merchant Shipping Bill.
I move amendment No. 17:
In page 16, before section 14, to insert the following new section:
"14.—Section 69 of the Principal Act is amended by substituting "65" for "60" in section (1)(a), (b) and (c).”.
My intention had been to oppose section 14. However, I accept the Minister's undertaking, which has been included in the Official Report, that this matter will be considered in the Merchant Shipping Bill. That is a step forward and I withdraw this amendment on that basis.
I move amendment No. 18:
In page 16, to delete line 11 to 13 and substititue the following:
" (I) master, or (II) chief mate,".
As I have outlined my concerns in this regard, I will not repeat them. As proposed, section 72(1)(b)(III) of the Principal Act regarding the officer in charge of a navigational watch does not appear to be well based on safety grounds and probably should be got rid of. This amendment tries to do so and I have outlined the reasons for this. Amendment No. 19 proposes to append to the clause stating:
the holder of a subsisting document issued by another Member State of the European Communities or the Kingdom of Norway or the Republic of Iceland, certifying a level of competency which corresponds to a certificate of competency to which subparagraph (i) relates,
the phrase, "and the highest standards of internationally recognised pilotage qualifications and medical fitness and".
This is intended to copperfasten the idea that people should have the recognised pilotage qualification. I assume, from the information provided by the pilots, that a modern European Union standard on this issue will be put in place shortly. However, there does not appear to be any case for retaining section 72(1)(b)(III), which is a dangerous provision on health and safety grounds.
Section 15 amends elements of section 72 of the 1996 Act, and must be read in that context, regarding the eligibility of persons to apply for a pilotage exemption certificate. Both the relevant sections in the 1996 Act and this Bill only permit people to apply for such a certificate. Neither provision confers a certificate on anyone. The award of pilotage exemption certificates remains pursuant to the full terms and conditions as set out in section 72 of the 1996 Act.
While there appears to be a belief that simply applying would be sufficient, that is not the case and the provision still refers to section 72 of the 1996 Act. As part of the review of the current section 72(1)(b), it was felt appropriate to allow seafarers who have a subsisting certificate of competency issued pursuant to Irish law in a capacity as either a master, chief mate or an officer in charge of a navigational watch to apply for a pilotage exemption certificate. I reiterate this only refers to applications. Deputy Broughan proposes to delete the reference to an officer in charge of a navigational watch and to restrict the ability to apply to a master or chief mate.
It is felt necessary to allow for an officer in charge of a navigational watch to apply because there is a limited number of smaller vessels which are not exempted from the compulsory pilotage provisions of pilotage district by-laws that are required by their safe manning document to carry only certificates of competency in respect of a master and an officer of the watch. No chief mate's certificate may be required to be carried on board these vessels and, in effect, the officer of the watch is the chief mate on board. In such cases it is entirely appropriate that the officer in charge of a navigational watch be allowed to apply for an exemption certificate. The responsibility and authority to issue a pilotage exemption certificate lies with the relevant port company. Applicants must satisfy the company that they have the skill, experience and local knowledge sufficient to pilot the ship within the company's pilotage district.
The proposal to include a reference to pilotage qualifications and medical fitness in this section does not reflect the section's purpose or the reality on the ground, as seafarers and prospective applicants will be subject to the medical fitness requirements demanded by law and upon which the issuance of those sea-going certificates of competency depends. There is no need to insert a reference to medical fitness standards in the Act when those matters are governed by other legislation. In fact, it could have a contrary effect of creating doubt between two Acts.
Regarding the proposal to insert a reference to international pilotage qualifications and medical fitness in respect of applicants from EU states, I am unsure of the purpose of restricting the amendment to such applicants only. Irrespective of the reason, I am unconvinced of the necessity of inserting the reference. The amendment does not refer to what the international standards are or how they might be measured.
Section 72 clearly sets out the eligibility requirements for prospective applicants to apply for a pilotage exemption certification. Applicants must satisfy the company that they have the skill, experience and local knowledge sufficient to pilot the ship within the pilotage district. The section as proposed to be amended ensures that prospective applicants have the necessary technical expertise, as evidenced by the requirement to hold the relevant documentation. The intent of the Deputy's amendment is well covered in that Act and the 2006 Act.
I have been re-reading about the exemption certifications in section 72. The inclusion of some of the issues in section 15 are a valuable addition but I am concerned about the reference to "officer in charge of a navigational watch". Knowing that the company could be acting quickly, there is a concern that it could reduce safety. I ask the Minister to reconsider the section before signing off on it.
Mr. Kieran's point is that many countries do not allow PECs and have no reciprocal arrangement for Irish mariners. When arriving or departing those ports, they must take an authorised, fully qualified pilot. I presume his concerns are that Irish pilots may lose out as a result and that the pilot carrying a PEC card and who gets a licence as an exemption will undermine their work. Is this a fair representation of what is being stated? The provision does not apply in every European country.
The Deputy asked me to consider the matter before Report Stage, which I will do.
Amendments Nos. 20 and 21 are related and may be discussed together by agreement.
I move amendment No. 20:
In page 16, line 39, after "paragraph (a)” to insert the following:
"and after full consultation with all relevant maritime stakeholders including maritime pilots".
This develops from our previous discussion. In the Bill, the amendment of section 79 means that the Minister can re-organise the provision of pilotage services, that is, abolish or alter the limits of a pilotage district. We are asking for full consultation.
Amendment No. 21 refers to page 17, line 4, on "that Part". The Minister asked about the international standards. I have submitted the "International Standard for Pilotage Organisations". Therefore, the Bill would read:
subject to section 57(2), provide for the limits of a pilotage district referred to in Part II of the Third Schedule in lieu of the limits set out in that Part,
(f) adopt the International Standard for Pilotage Organisations.
It is a reiteration of what we have discussed.
Regarding the amendments——
As there is a vote in the Dáil, I propose that we suspend until it concludes.
I asked Deputy O'Dowd to oppose the section because it gives the ability to dispose of the assets of the Arklow Harbour Commissioners to the local authority. In effect, this asset strips the harbour. An amendment will be tabled in the Seanad but I ask the Minister for a response to my proposals. This measure gives overwhelming power to the local authority to do as it pleases without proper consultation.
In 1996 consideration was given to establishing a port company in respect of Arklow Harbour. It was included in the First Schedule to the Act because of that. Consideration was being given to establishing a port company for Arklow Harbour at the time of drafting. Government policy on regional harbours, as published in the ports policy document in January 2005, is that harbours with little or no commercial traffic should be transferred to local authority control because continued operation of regional harbours under the outdated provisions of the Harbours Act 1946 is unsustainable on the grounds of good governance. It is proposed to remove Arklow Harbour from the list of proposed port companies in the First Schedule to the 1996 Act and include the harbour in the table contained in section 87(2), which would facilitate a transfer to local authority control. The inclusion of Arklow in the table of companies in section 87(2) will also maintain the option of establishing a private company in respect of the harbour, should it be deemed appropriate. An order establishing a private company may be made in respect of any harbour listed in the table in section 87(2). In making such an order, the Minister will specify which provisions of the Harbours Act would be applied to the company. This maintains two options for Arklow.
The Minister referred to there being little or no activity but the harbour has lodged a request for dredging. There are issues with the Marine Institute about the copper residue from the Avoca mines. It cannot operate because deepwater boats cannot get into it. The RNLI lifeboat had to move from one side of the pier to the other to get in and out safely at low tide.
Can the Minister explain who has primacy in deciding what happens to the harbour? If this is moved into section 87(2), does that mean the local authority can decide to take it over and sell its assets without consultation or the permission of the Minister?
That cannot happen. If there is a change in status, an order must be signed establishing a private company in respect of any harbours listed in section 87(2). The Minister must specify what provisions of the Harbours Act must be applied to the company. We have already established that consultation must take place. We cannot arbitrarily decide to wash our hands of a harbour and transfer it to the local authority. We must have agreement with the local authority. We cannot sell it off to a private company without consultation. There must be consultation with local stakeholders before a decision is made. It is not tenable to have a harbour operating under the provisions of the Harbours Act 1946. It is not sustainable on good governance grounds. It can cause all sorts of difficulties. Two options are available to Arklow and there must be consultation.
In the event that it is in the hands of the local authorities, is it a reserve function of the local authority to take decisions on its future?
It would be a reserve function in that policy would be decided by local authority members. The executive of the local authority would then have to execute the decision. Policy must be decided by members and the executive of the local authority must execute the decision.
What is the procedure for disposal of an asset?
This will be governed under the normal procedures for disposal of assets by local government. It comes before the members of the local authority for approval.
Amendments Nos. 22 to 37, inclusive, and 40 to 42, inclusive, are related and will be discussed together. Amendments Nos. 26 to 28, inclusive, are technical alternatives to amendment No. 25.
I move amendment No. 22:
In page 18, between lines 3 and 4, to insert the following:
" ‘public consultation' means a publicly advertised invitation for submission from stakeholders and the general public;"
While I will not take a cruise like the Vice Chairman mentioned——
I note that it is not in the Deputy's nature to do so.
——I am giving him notice that I will call out Baltimore lifeboat and Castletownbere lifeboat to save Bantry Harbour. In doing so, I want to tell the Minister that Bantry Bay Harbour Commissioners is a very volatile body. The harbour board, which is an independent board, is making very good revenue and is working very well on behalf of the people of Bantry. We want to copperfasten the status of the Bantry Harbour board and Senator O'Donovan created a marathon record by speaking for eight hours on this matter and on the preservation Bantry Harbour. However, to my mind it needs to be better copperfastened. There are many loopholes in section 18 and I want the Minister to fill them if it at all possible.
I am glad to have an opportunity to support the case being made for Bantry by my constituency colleague.
Deputy O'Keeffe has never let me down.
Absolutely, over many years.
He was just waiting for you to come to.
I am delighted to continue the support I have given to Deputy Sheehan over the past 25 years. As committee members know, Cork is the rebel county and west Cork is the 33rd county with Bantry being a unique harbour there. It is the second biggest harbour in the world after Sydney harbour. We are not discussing something that is a cove or a pond.
It is not a pond.
We are discussing a proposal to have it taken over by the Port of Cork. I have nothing against the Port of Cork but its business is dealing with the Port of Cork and it has enough to do there.
Bantry has had a huge maritime record over the centuries, going back to the middle ages, and in the Hoche expedition of 1795 it is where the French decided to land. It has facilities, scope and size and it also has a profitable harbour board, so why in the name of God should we discuss taking away what is unique in our economy today, namely, a body that is working well, profitably and efficiently? I see no justification for the takeover of Bantry.
I am concerned about the future development of Bantry and major plans exist for its future development. I am concerned that, in west Cork terms, it would be on the hind tit as far as the Port of Cork is concerned with regard to any capital or development funding. Quite naturally, its future development would be of no priority. I very strongly support the case made for a pause. In fact, it should not be taken over at all. Despite the very strong case put up by our Oireachtas colleague, Senator Denis O'Donovan, which I am sure burned the Minister's ear for a while, the concessions, if one might call them that, which were put in place were totally inadequate and merely a sop to let the Bill go through. They merely provide for some consultation before the Minister signs the order. That is like stating we will give a man a fair trial before we will hang him. It is the wrong approach.
The Minister might not have a sense of the sea like people such as us.
A sense of being at sea.
There is a case for a pause and a pullback and accepting the amendments that have been so well tabled by our spokesperson, Deputy O'Dowd, and by my colleague, Deputy Sheehan, and either eliminating the proposal entirely or providing many more safeguards before the axe falls on the independence of the Bantry Harbour board.
In general terms, there can be some merit in allowing ports to merge or to have strategic alliances. I spoke about this on Second Stage with regard to the east coast and proposals we have heard from time to time on the best usage of Irish ports. Dundalk Port representatives told us when they appeared before the committee that they had carried out work for Fenit and that they could see an interesting future for Fenit whereby Dundalk would be able to provide certain facilities for it. Fenit has enormous potential with regard to the size of the vessels it can take. Those linkages and strategies could be encouraged and the Minister could examine them.
What is being proposed here goes much further. The Minister does not seem to have given us a case for it so I am delighted to support Deputies Sheehan and O'Keeffe in this matter. I cannot see what case has been made and as the west Cork Deputies stated, and west Cork is an area I know very well, Bantry is one of the great natural harbours of the world. In olden times prior to the State's foundation it was the western approaches headquarters of the British Navy and this continued until 1939. It is one of the greatest locations in these islands and in Europe. Its role could be quite significant and the Minister must tell the committee the case that has been made on this. What is in it for Bantry, the Beara Peninsula and west Cork generally? That case has not been made.
People have referred to the fact that the Minister amended the Bill to allow for public consultation, but it is only a fig leaf to protect the Senator in the area who lost his seat at the previous general election because it looks like the process will continue. The case for the other side has been made very strongly and I am delighted to be at one with Deputy Sheehan in particular who has made many speeches down through the years on maintaining the beauty and environment of Bantry Bay. Deputy Sheehan spoke powerfully on this issue in the Dáil and I am delighted to support him and Deputy Jim O'Keeffe.
I am aware of the feelings of local Deputies and Senators on the matter. However, it is not tenable to continue operating regional harbours under the outdated provisions of the Harbours Act 1946. It is unsustainable on grounds of good governance and the proposals for change are no reflection on Bantry as a port. It is such a fine port that it should be given the best possible opportunities to allow it to develop and grow further. That is the intention of the Bill's enabling provisions which offer Bantry and Tralee-Fenit three different options. When this Bill is passed, they will have the choice between transferring control to a relevant local authority under section 88(2), establishing a private company under section 87(1) or transferring control of the harbour to the relevant port company under section 87A(2). Any decision made will be subject to appropriate consultations with the relevant harbour authorities. I stress that we are talking about an enabling provision not a final decision in this matter.
I am aware the Bill has been subject to strenuous debate by local representatives. The amendment introduced by the then Minister of State at the Department of Transport on foot of debate in the Seanad provides the appropriate platform for discussing all the relevant issues regarding the future management of the harbour. While I note the proposals made by Deputies Sheehan and O'Dowd regarding the consultation period, the amendment as proposed by Senator Donohoe is sufficient to ensure any decisions made will be fully informed by the comprehensive consultative process provided for in the section as it stands. It is an enabling provision which augments the existing powers available to a Minister to transfer Bantry Bay Harbour to a relevant local authority or to establish a private company. I will now have a third option.
I understand the sincerity with which these arguments are made but they are often grounded in local perspectives and pride. Essentially, the argument is "what we have we hold." I do not believe this is the correct way for Bantry to proceed. It is not our intention to transfer any harbour to another port's control unilaterally or without consultation. A specific statutory commitment is being made to engage in a consultative process prior to deciding on any transfer in regard to Bantry.
I remind those who have argued about corporatisation that the provision to establish a company in respect of Bantry Bay already exists in the Harbours Act 1996. It is my belief, however, that the level of commercial activity as measured by throughput, turnover and profitability at the harbour is not of a sufficient scale to justify the creation of a separate port company. Corporatisation of a commercial port company confers significant financial, reporting and corporate governance responsibilities which cannot be taken lightly. While I agree the harbour commissioners have done an excellent job of facilitating growth in recent years, the fact remains this would not have happened in the absence of significant Government funding for essential works. It is expected that further funding will be sought and, as Deputies are aware, it is Government policy that port companies established under the 1996 Act must be self-financing and not reliant on Government funding. Bantry will need to take that into account.
The desire evinced by the amendments before us to retain small independent harbour boards is contrary to the views consistently expressed by members of this committee in their interrogations of other port companies. When port company officials gave presentations to the Joint Committee on Transport on previous occasions, they were repeatedly questioned about the benefits to be gained from closer co-operation between companies and the possibility of further mergers in light of the potential synergies arising out of amalgamations. A merger between a regional harbour with significant potential for growth in commercial trade and a port company which offers economies of scale in areas such as joint marketing, pilotage and dredging would allow for increased operational efficiencies and enhanced competitiveness. This would result in lower costs, better services for customers and, in turn, more business for the port. There is clear evidence of the benefits to be gained from co-operation among harbours, such as through the current arrangement between Bantry Bay and the Port of Cork for harbourmaster duties. If a fully fledged commercial port company was established for Bantry Bay, it would have sole responsibility for these matters and the other costs which the commissioners are at present unable to meet by themselves, such as dredging.
I respect the sincerity of members' views on the issue but I firmly believe the inclusion of this enabling provision will allow the maximum legislative scope on this important regional harbour. It is important that all options remain open. The measures clearly set out how we can proceed with our decisions. The Bill does not constitute a transfer of Bantry Harbour but merely provides a Minister with the power to order such a transfer on foot of a consultation process enabling all relevant stakeholders to make their views known. For that reason, I do not accept the amendments.
I cannot agree with the Minister. I must speak out on behalf of Bantry, south-west Cork and south Kerry. They are right to own and operate their harbour. The objections raised by all the public representatives of the area, including members of the Minister's party, concern the provisions in sections 18 and 19. Section 18 cursorily dismisses the Bantry Bay Harbour Commissioners and casts them into oblivion. I speak with an intimate knowledge of the harbour board, having had the honour to serve on it free of charge for more than 20 years. This was with the aim of building up the harbour board following its formation by the then Minister for Transport and Power, Mr. Peter Barry, in the Harbours Act 1976. I attended each of its monthly meetings religiously. It is with this knowledge that I also question the wisdom of removing elected councillors from harbour boards. I noted the Minister's comment that it was his intention to appoint a local authority director among his nominees, but he did not confirm that this would be an elected local authority member and, more important, he has no idea how much longer he will be in charge of this area.
Bantry Bay Harbour Commissioners were set up under the 1976 Harbours Act as a direct result of the recommendation of the report on the disaster at Whiddy Island, Bantry, on 8 January 1979, which concluded:
The failure to establish a harbour authority with jurisdiction over Whiddy Island meant that Gulf itself was responsible for drafting bye-laws under the petroleum Act 1881, for the safe handling of petroleum products. This was a highly anomalous situation.
It added:
"The failure to establish bye-laws under the provisions of the petroleum Act 1881 or to introduce Regulations under the Dangerous Substances Act 1972 had serious consequences." I do not need to remind the Minister that on that sad occasion a disastrous fire occurred on the Betelgeuse tanker on Whiddy Island, resulting in the deaths of more than 50 people.
I have tabled a number of amendments — Nos. 22 to 37, inclusive — to remove the provisions in this Bill that relegate Bantry Harbour to a non-entity and to protect the interests of Bantry Harbour. In addition, I wish to enhance the consultation process that the Minister was so happy to amend in the Seanad. This harbour is a vital cog in the engine of this part of west Cork. It cannot be managed by another harbour board 60 miles away in Cork city with no local representation. I will also be supporting my colleagues in their efforts to stop Fenit and Arklow from becoming non-entities.
The Minister said in his opening statement that the Bill seeks to underpin and enhance the commercial freedom conferred on our State commercial port companies. However, with the provisions in section 18, the Minister is denying anyone the opportunity of underpinning or enhancing the commercial freedom of Bantry Harbour. He went on to say that our commercial ports have played a key role in facilitating economic growth in the State. With this section the Minister is destroying the possibility for Bantry Harbour to play a key role in generating economic growth in the west Cork and south Kerry region. The Minister also stated: "We remain dependent upon seaborne trade to drive economic growth." By placing this noose on Bantry Harbour the Minister is closing this opportunity and, to use his words, we will have to find other means to drive economic growth.
The Minister also said that this Bill would enhance port companies' borrowing capabilities, but what capabilities will Bantry Harbour have with no title deeds and not even a long-term lease? It will have nothing but the prospect of being swallowed up by its bigger neighbour 60 miles away. Bantry Bay has in recent years seen a number of significant drugs seizures. Who will monitor such activities from a boardroom in Cork city?
The Minister of State, in his reply to the Second Stage debate in the Dáil, claimed that section 18 was an enabling provision, but I would describe it as a crippling provision. He further claimed that section 18 "merely adds to the suite of options currently available in respect of the harbour", but I think it might have been nearer the truth to state that it adds to the possibilities that might be used against the interests of the harbour and the surrounding community.
Bantry Harbour is a busy, active port and the commissioners there form a cost-effective, efficient and profitable body. The harbour has run its affairs at a profit for years, unlike Departments. I cannot understand why the Minister wants to gobble up Bantry Bay into the Port of Cork, which is almost 60 miles away from Bantry. It is already a busy port with its own affairs to run. The idea of the Bantry Bay Harbour Commissioners being an add-on to the Port of Cork is anathema to the people of west Cork in general and Bantry in particular.
The Minister has given no consideration to this proposal. He did not even mention it in his speech on Second Stage in the House. He has not taken into account the fact that Bantry Bay has a broad range of marine activities. There is fishing, aquaculture, tourism and the oil transshipment terminal at Whiddy Island. There have been other activities in the bay, such as stone export. In recent years, Bantry Bay hosted the largest tanker in the world, which was able to sail into Bantry Bay and unload its cargo.
The Deputy is going on a bit of a cruise now.
I am nearly finished. Yet the Minister proposes in this Bill to abolish the local harbour board, which was reconstituted after the Betelgeuse disaster as a result of the recommendations of the Costello tribunal at the time. I do not know whether the Minister read this report. A specific recommendation was made to establish this body, but the Minister wants to abolish it and subsume it into the Port of Cork.
Prior to the start of the First World War, the British Admiralty boasted that Bantry Bay had the capacity to hold the entire British fleet. Whiddy Island, which is located halfway down the bay near its southern shore, is Ireland's main petroleum terminal. The harbour is ideally suited to large ocean-going tankers. The largest tanker afloat has docked at Whiddy Island and unloaded its cargo. No other harbour in the world has the capacity of Bantry Bay or the capability of its harbour authority. It is important the authority remains in operation. ConocoPhillips maintains a single-point mooring at the Whiddy Island oil terminal.
I guarantee that Bantry Bay is no pond. Its entrance does not need dredging, although the inner harbour around Bantry town needs to be dredged. We have been promised dredging and the building of a new pier over the last four general elections. Bantry Harbour is sound commercially and financially. It is not a burden on the State and contributes its rightful share of taxes. This was recognised by a previous Fianna Fáil Government when it gave a solemn commitment in the week preceding the 2002 general election to invest €9 million in extending the pier and dredging the inner harbour. It was no joke to face that kind of promise one week before an election, as I had to do, but it was yet another unfulfilled commitment. Not one euro of this has been spent. The harbour authority is a self-supporting and viable body which enjoys a sound turnover.
We have seen the effects of the Government's previous decisions to amalgamate small local and democratic bodies into autonomous organisations. Do we want to see another disaster such as the establishment of the HSE in which we replace our small harbours and ports throughout the country with two or three very large authorities? This is an unwise decision and I advise the Minister to reconsider it. I do not wish to speak as someone protecting my back yard but as someone speaking on behalf of the whole community, including the public representatives in the Minister's area who have outlined to him in no uncertain fashion that they demand hands off the board of Bantry Harbour. I trust the Minister will accept the amendments on a cross-party basis and we can move forward to a brighter future for the board of Bantry Harbour.
The case has been very amply outlined by my colleague, Deputy Sheehan. I have listened very carefully to the Minister. We have heard fine words from him, referring to positions that are not tenable or sustainable and the need for good governance and so on. However, this is already in place in Bantry. There has been good governance there and the authority has run the show well, in sharp contrast to governance elsewhere in this unfortunate country for some time past. I agree with the Minister that this is not an anti-Cork Port approach. There is a very good working relationship with Cork Port and it has worked to the mutual benefit of both authorities. As it stands, there is co-operation on various issues and it works fine. Any necessary arrangements can always be worked out and the bodies are in a position to do so. However, if the approach were to involve subsuming the board of Bantry Bay Harbour Commissioners into the Port of Cork, then there would be no one with which to co-operate locally because the local governance edifice would be abolished or demolished.
The Minister referred to several options and arrangements involving the local authority, in this case Cork County Council. He also referred to corporatisation which has been examined locally and the option of the transfer of functions to another port company. I set out what might be considered a fair approach. These issues have been considered carefully by the local harbour board. The board has informed me that it wishes to continue as currently constituted and to complete the current development, the planning of which is already under way. The board has further informed me that, thereafter, it is open to discussion on the future. It should not be simply a question of closing down the authority, leaving matters as they are, that is, the status quo and nothing else. The problem with the Bill and the way in which it is framed is that once the power is granted to the Minister, the board is not in a position to provide input to any final decision. I accept there may be a consultation process and the board may make a case but ultimately it would have no power whatsoever.
If the Minister incorporated at least one, if not more, of the amendments tabled such that any change in future involved not only consultation with but the agreement of the harbour commissioners, and if the Minister were prepared to let matters remain largely as they are at present or that any final decision would be subject to the agreement of the harbour board, it may constitute a package that could comprise a reasonable solution. I am inclined to recommend to my constituency colleague, who has fought so well on this issue for a long time, that if there were such a commitment and any final arrangement had to be by agreement with the harbour board then it might represent a solution.
I do not wish to denigrate any of the contributions made but I have dealt with all of the issues raised in my original statement. Notwithstanding the passionate case made I do not have anything further to add.
How stands amendment No. 22?
We are pressing it. Shall we discuss the amendment and the sections as they arise?
I must take this one first.
Amendment No. 23 was discussed with amendment No. 22.
Having had ten minutes to reflect and in light of the very passionate plea from Deputies Sheehan and O'Keeffe, if they are prepared to withdraw these amendments I will consider the matter further on Report Stage.
Is that agreed? Agreed.
Will we have any further legislation on the Irish Maritime Development Office?
There is nothing planned at the moment.
Is the Minister preparing any report or conducting an examination of the fact that it has changed dramatically in the last number of years?
There was a strategic review on the maritime sector. It is published on the Department's website and there are references there. We are trying to develop business through the IMDO. If the Deputy requires a briefing on its activities I will arrange it if he contacts me.
I thank the Minister.
I move amendment No. 38:
In page 22, lines 3 to 5, to delete subsection (2) and substitute the following:
"(2) The Harbours Acts 1996 to 2006 and this Act (other than subsections (1) and (2) of section 7, section 20 and subsection (3)) may be cited together as the Harbours Acts 1996 to 2009 and shall be read together as one.
(3) The Planning and Development Acts 2000 to 2007, subsections (1) and (2) of section 7 and this subsection may be cited together as the Planning and Development Acts 2000 to 2009 and shall be read together as one.”.
I move amendment No. 39:
In page 22, subsection (2), line 3, to delete "2005" and substitute "2006".
I know we do not want to delay and want to finalise the business. I hope to have an opportunity to return to these sections of the Bill. I did not realise in the latter part of the Bill that there was no section specifically referring to worker directors and the fact they have been cut significantly, particularly in the larger ports. Without repeating all the arguments we have used regarding local authorities, they apply equally to worker directors. I made the case very strongly on Second Stage. A representation was made to us that we should look at the size of ports and their turnover regarding boards and worker representation. If I get an opportunity I will return to this point on Report Stage.
I move amendment No.43:
In page 3, lines 5 and 6, to delete "HARBOURS ACTS 1996 TO 2005" and
substitute "HARBOURS ACTS 1996 TO 2006".
I thank the Minister and his officials who treated the meeting very well and thank all my colleagues for putting up an excellent show. I can honestly say I know more about harbours on my way out than I did on my way in.
I would like to thank the Minister as well and hope that we might be able to continue in the mellow humour we have had over the past few days in respect of aviation and maritime affairs in the weeks and months ahead and after the general election when hopefully he will be on this side of the House.
I commend Deputy Connaughton on being such an outstanding Vice Chairman.
For being here, unlike other people who are paid to be here.
Does he have any news of the Chairman? Where is he at the moment?
We will send out an SOS for him and put a GPS on him.
I also thank the clerk and her staff. She made life very easy for me today and I greatly appreciate that.
