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Dáil Éireann díospóireacht -
Wednesday, 10 Mar 1999

Vol. 502 No. 1

British-Irish Agreement Bill, 1999: Committee and Remaining Stages SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Section 1 is the short title and commencement, a standard provision in any intended Act. It sets out the title of the Bill as the British-Irish Agreement Act, 1999 and it will come into operation on such a day or days as will be designated by the Taoiseach under the particular section.

Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

Section 2 is an interpretative section. It states that "the Agreement" means the Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing implementation bodies set in the treaty done at Dublin Castle on 8 March and that a "Body" means an implementation body and "the Bodies" shall be construed accordingly.

It then describes the British-Irish Agreement and its meaning, and the meaning of "function" and of "implementation body"– an implementation body established by the Agreement. It states that the "Multi-Party Agreement" means the Agreement signed on Good Friday, that "the Northern Ireland Minister" means any Minister in Northern Ireland or a department in Northern Ireland of which such a Minister is head; and that "the North/South Ministerial Council" means the body established by ourselves and the British.

The Act will be construed accordingly and the various references are set out in subsection (3).

I know this Bill has been prepared in a hurry and it is difficult to construct an Act which implements an agreement. However, section 2 (2) states;

This Act shall be construed with due regard to the spirit and purpose of the Multi-Party agreement.

I was not aware that when the legislation is implemented, and if it were to go to court for any reason, the spirit of the Agreement could be part of the interpretation of the words on the page. This is quite unusual. I have always been told that when we pass legislation, it is the terminology of the Act which is interpreted by any court of law. How does one construe the spirit of an agreement when implementing this Act? It is simply a question of clarification.

As the Deputy is aware, all the various agreements are interlinked. At our request, the draftsman included the spirit, philosophy and intention of the Multi-Party Agreement and what it stands for in this subsection. The Deputy correctly said it is an unusual insertion. However, in this context we thought it should be set out that due regard be given to the spirit, purpose, intention and philosophy of the Multi-Party Agreement. There is nothing more sinister than that involved.

I am not suggesting there is anything sinister in it. We are passing legislation and we need to have regard to how robust it will be if it is challenged. We have no way of knowing whether it will be – one hopes it will not. Nevertheless, it may be, and given that we have seen the legislation only in the past 48 hours, I am concerned we do not pass legislation which may seem fine superficially. Many of the Government amendments are technical and deal with the absence of commas etc. which indicates the speed with which the legislation was prepared and published. There may not have been time to proof read it. I would like a clearer explanation as to why this provision is necessary.

One would hope the participants, in the implementation of the Agreement, will comply with the spirit of it. We all know the current difficulties as regards the different interpretations of what precisely that spirit is and the timing of various aspects of the Agreement. I fear that inserting the well-intentioned notion that the Act should be interpreted within the spirit of the Agreement may result in a weakness in the legislation.

I express a similar concern. It seems that section 2(2) asks the courts to make a political judgment. Under our Constitution there is a separation of function between the courts and the Oireachtas. To ask the courts to construe legislation in accordance with the spirit of a political agreement trenches on the separation of powers between the courts and the Oireachtas. This is a legislative innovation with which I have no sympathy.

This is not a helpful subsection. It also aggravates the difficulty which will arise from the fact that there is no single appellate jurisdiction for dealing with the interpretation of the Agreement. As I said on Second Stage, the House of Lords is the Supreme Court in the UK and the Supreme Court here is the Supreme Court of this jurisdiction. They may come to different conclusions. Whatever chance there is of them coming to the same conclusion on points of law, there is certainly less likelihood that they will come to the same conclusion on matters of spirit.

We are effectively asking the House of Lords, sitting in London, to construe the spirit of this Agreement in the same way as the Supreme Court of this Republic sitting in the Four Courts in Dublin. The introduction of concepts such as spirit and purpose in the legislation imports an unnecessary difficulty. I am not certain it adds anything of value. I would like to hear the Minister's explanation of why this is necessary.

I do not necessarily accept the thrust of Deputy Bruton's argument. I accept it is an argument which could be made but, with respect to the Deputy, the validity of it, as I understand it, does not quite measure up. As I said to Deputy De Rossa, who quite properly raised this matter, all these agreements are interlinked and in the circumstances it would be appropriate to refer to them.

Another issue raised by Deputy Bruton, which was raised by Deputy Flanagan yesterday, was dual jurisdiction, jurisdiction North and South, jurisdiction under British law and jurisdiction under Irish law. I will deal with that more specifically. However, it was dealt with by the interchange of letters between myself and the Secretary of State on Monday. She suggested that the Attorneys General in both jurisdictions should bring forward, within a given period of six months in this instance, any necessary additional refinements to the Bill, given the speed and urgency with which this Bill was introduced and the need to revise it upwards and to make it more comprehensible and comprehensive, in a minor way. However, the text is in the treaties. We felt we should refer to the Good Friday Agreement. The idea is no more or no less than underlining the purpose of this Bill, which is based on the Agreement. We want to make it clear that the Bill can be linked, by reference, to the Agreement; it is nothing more serious than that.

In addition to the Agreement establishing the implementation bodies, as I said last Monday, myself and the Secretary of State – a matter which will be referred to again – exchanged letters providing for consultation between the Attorneys General to address any problems arising from divergent judicial interpretation of the legislation on the bodies in two jurisdictions, to which Deputy Bruton referred. The wording of the letters was agreed between the two Attorneys General. It was an important issue for us in the negotiations, although we are advised that the fact that the detailed arrangements are provided for in the common text of the Agreement and not separately in divergent legislation should minimise the likelihood of difference. The issue raised on Second Stage by Deputy Bruton was whether the consultation arrangements would come into effect only after the problem has emerged. While consultation is provided for in the case of such a difficulty, there is also an obligation on both Attorneys General to report within six months of the entry into force of the Agreement as to whether additional steps are required. This applies whether problems arise in that period. I realise this is an important section and that we are spending a lot of time on it. I understand I have to read out a Schedule at this point.

No. This is an informal arrangement that does not require an order.

I do not wish to press this matter to an unreasonable degree, but I have trouble with the introduction of the word "spirit" into legislation. My very strong view is that the law should be certain, and the one thing clear about "spirit" is that it is not certain. It is a political, philosophical and psychological issue. When I learned law a while ago—

Like myself. I have forgotten most of it.

—I was led to believe that what was said in Parliament was not relevant to the interpretation of legislation. Here we are referring not only to something that is said in Parliament but the spirit of this Agreement, which is anyone's opinion. It is a historical judgment of the state of mind of people when they signed it. All that can be drawn in and used as a basis for judicial determination in what will obviously be a contested case where money is at stake and jurisdiction is being challenged. Would the drafting not be better if the Bill stated simply "this Act shall be construed with due regard to the multi-party Agreement" and if the references to spirit and purpose were left out?

Will the Minister reconsider the wording of this section for Report Stage? I know we are to deal with Report and Final Stages of the Bill tonight, but perhaps he will consult the Attorney General in relation to alternative wording. I have difficulty with this as the spirit and purpose of agreements are fine when one signs off on an agreement, and marathon negotiations were undertaken to reach this Agreement. However, interpretation of the Agreement may change slightly but significantly as politics evolves in Northern Ireland. The spirit of the Agreement may evolve, and it would seem far better if the section simply referred to the fact that the legislation should have regard to those Agreements rather than the spirit and purpose of the multi-party Agreement.

To give perhaps a simplistic example, if one asked a Unionist politician what the purpose of the Agreement was, he would say it is to maintain the Union. If one asked a Republican politician for its purpose, he would say it is to establish a united Ireland. There is a problem here.

There is, and the House of Lords is to interpret it.

It is a serious point and we should return to it on Report Stage.

It is a very serious point, and it has been well made by Deputies Bruton and De Rossa. It is interesting that when we discussed this with my estimable advisers, the legal advice was to leave it in or leave it out in the sense that we discussed it and felt we owed a debt to the multi-party Agreement for those of us, like Deputy Bruton, who were deeply involved in it. We felt in the circumstances that it would bring out the spirit and purpose of the Agreement and that in those circumstances it should be inserted. However, I would be pleased to look at this on Report Stage and if it is feasible, taking account of the legal advice I receive, I would be glad to drop "to the spirit and purpose", if that would meet Deputy Bruton's objections.

It certainly would.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

This section provides for the participation of the Taoiseach, Ministers or Ministers of State in meetings of the Council. It gives legislative effect of paragraph 2 of strand two of the Good Friday Agreement. Although strand two only refers to Ministers, we and the British Government have interpreted this as including Ministers of State. I understand there is a similar provision in the British Northern Ireland Act, 1998. The Council does not require fuller treatment in this Bill because it is not formally established by legislation but by a supplementary agreement signed last Monday. No additional domestic powers are needed to give effect to the relevant parts of the Good Friday Agreement.

A number of questions were raised on Second Stage with regard to detailed procedural arrangements. A paper is being worked on by officials, and it is intended that this would be agreed upon at the Council's first plenary meeting. It is envisaged that the secretariat would have joint heads, one from the North and one from the South. There is a general political understanding that the location will, as I stated, be in Armagh, but this has yet to be finally confirmed. The Council will meet in various formats; the plenary meetings will be twice a year, with sectoral meetings occurring regularly and frequently, as per the wording in the Good Friday Agreement, if my memory serves me. We have suggested that this should mean once per quarter in each case.

In addition to overseeing the work of the consultation bodies, the council will take co-operation forward in aspects of six other areas agreed in December: agriculture, education, environment, transport, energy and tourism. However, it will also be able to consider all matters of mutual interest. We aim, if and when given the opportunity, to work this matter very vigorously and, as Deputy De Rossa implied in relation to section 2, robustly.

This important section allows for the setting up of the Council. It seems that the operation of the Council will be rather like that of the Council of Ministers in the European Union. However, unlike the situation in Brussels, there will be no provision for the attendance of anyone but Ministers and Ministers of State. A strict reading of section 3 shows there is a duty imposed on Ministers to attend rather than substitutes or representatives attending in an official capacity instead of a Minister or Minister of State.

The Minister will be aware that the provision of section 3 under strand two is somewhat smaller than what was envisaged or proposed in the Sunningdale Agreement of 1973. I mentioned this on Second Stage to the Minister of State, Deputy O'Donnell, whose reply did not appear to accept that there was a difficulty. There may not be a difficulty, but I would have thought this section would have made some reference to an interparliamentary tier, and that the North-South Council would engage a trigger mechanism for some type of parliamentary tier. Although the Minister envisages the headquarters being in Armagh, I take it that there will be provision for some type of rotation of plenary sessions, or is it envisaged that all plenary sessions will be held at the headquarters? I assume section 3 permits the setting up of subcommittees which will meet in Northern Ireland and in the Republic from time to time.

My query relates to attendance at the bodies concerned. Can I take it that only Ministers and Ministers of State can attend or is it possible, as happens at European Council meetings, for diplomats to attend? Is that a likely possibility?

The Agreement, as I understand it, refers to those with executive functions. Is it conceivable that a diplomat or a Secretary General of a Department might attend these bodies?

The matter of a parliamentary tier is particularly close to my heart and is one I have raised on a number of occasions with the draftsman and the Attorney General. The response I have received was that while we strongly support the formation of a new North-South and East-West interparliamentary tier, including building on the work done by the British-Irish Interparliamentary Body, this is a matter for Deputies and Senators to consider with their counterparts in the other legislatures. It is something I would like to see happen. I would like to see the British-Irish Interparliamentary Body, subject to the will of the Houses of the Oireachtas, establish links with the assemblies in Scotland and Wales, when set up after the summer, and the North, and build on the link with Westminster as well as the Channel Islands and the Isle of Man.

On the question of attendance, I confirm that only the Taoiseach, Ministers and Ministers of State will be involved in an executive capacity in the councils. Officials and advisers will accompany them and will be in attendance. I pre sume Secretaries General and diplomats fall into that category.

Will it be possible for them to substitute for a Minister?

I would think not. I am not sure that is a good practice.

It does happen.

It has happened in a number of instances in my own experience. I am not certain it is the best practice for a politician to be substituted by officials, estimable as they are, where it can be avoided. That is a personal opinion and I do not want it to be taken as a stand.

I am not getting clarity. Does this section preclude the attendance of, for example, a Secretary General or a diplomat at these meetings in substitution for a Minister or Minister of State? The section includes the word "may", not "shall".

This issue will be addressed. In the meantime the position is that only the Taoiseach, Ministers and Ministers of State will be involved in an executive capacity in the Council. The transference of the responsibilities of politicians to officials is a matter for the judgment of politicians in agreement between themselves. At Council of Ministers meetings in the European Union a diplomat can sit in in the absence of a Minister. This works extremely well. Those diplomats are of the highest calibre and integrity and have a wide knowledge of the subject with which they are concerned. This matter will have to be examined in due course. In the meantime the section as set out stands.

That means yes.

Given that apparently Armagh has been chosen, was Dundalk put forward by the Government as a possible location for the headquarters of this body? Will the Minister bear in mind the economic suffering and deprivation endured by Dundalk as a result of its proximity to the Ulster war for any future location of offices for subcommittees?

That is a reasonable request and one that will be examined. Dundalk and other towns on both sides of the Border have suffered as a direct result of the troubles. While Armagh is being seriously considered for the headquarters of this body, there is no reason subcommittees should not be located in Dundalk and elsewhere.

Dundalk has been in the eye of the storm recently. It has had unwelcome publicity which most people in Dundalk deeply resent. Some of the people who brought this unwarranted publicity to the town were born in the North. I refer to the Omagh bombing. Dun dalk has suffered grievously during the past 30 years because of the Ulster troubles. It would be a symbolic gesture if it was chosen as the centre of operations for the Irish Government in any subsequent choosing of towns in which to site subcommittees. Will the Minister ensure that happens?

I do not wish to be small-minded on this issue, but Monaghan Town and others have suffered ghastly. Monaghan Town which has provided a good service with the Peace and Reconciliation office has been a focal point for the entire region. I hope that will be borne in mind with a view to the location of any sub-offices.

I will not make a bid for any place. However, I do not deny the Deputies the right to make their claim given that both towns have suffered grievously as a result of the violence and the attitude of both Governments, North and South, since the foundation of the State to partition and the interaction of communities on both sides of the Border. Section 3 refers to a North-South Ministerial Council. I take it from the Minister's reply that a Minister may designate an official in his or her Department to attend a ministerial council meeting. I can understand how the pressures of work, time, etc., could lead a Minister to do that. If that is going to be the practice, it should be included in the legislation and we should insist that a senior official only, such as the Secretary General or Assistant Secretary General, represent the Minister. I know the Minister said he does not like the practice, but given the range of responsibilities of the Minister for Foreign Affairs and the Minister of State, in particular, in Ireland, Europe and elsewhere, they will clearly be under severe pressure of time. We need some guarantee that if officials are to represent the State on these Councils, they should be the most senior in the Department.

I understand the plea of Deputy McGahon and Deputy Crawford for Dundalk and Monaghan, respectively, and I appreciate what Deputy McGahon said about the people of Dundalk. They are a decent people and the majority, if not the entire town, are law abiding honourable good people with very few disreputable and dishonourable exceptions. For my part, I would like to think Monaghan and Dundalk will be considered in the context and manner in which the Deputies raise the issue. I would be glad to consider both these towns – Dundalk for the reasons set out by Deputy McGahon and Monaghan for those set out by Deputy Crawford – in the sense of the work that has been already done there in relation to the Peace and Reconciliation Fund, which is deeply appreciated and certainly not taken for granted. They are certainly two towns which will be near to my heart in the context of implementation bodies and offices thereat and thereunder.

On the query again raised by Deputy De Rossa, I confirm that only the Taoiseach, Ministers and Ministers of State will be involved in an executive capacity on the councils. I genuinely do not believe it is necessary in this particular instance to set out in legislation the suggestions made by the Deputy because where would one end? The Deputy suggested that two titles, the Secretary General and the Assistant Secretaries General of Departments, should be given some form of executive role on the councils. I do not agree with that and my advice is that it is not necessary to include that in the legislation. If it comes to pass that executive power is transferred to an official, I presume it can be done viva voce from the Minister in his executive capacity.

Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

This section, providing for the Taoiseach, Ministers and Ministers of State to attend meetings of the British-Irish Council, parallels that in relation to the North-South Ministerial Council. Similar provision is made in the British Northern Ireland Act, 1998. The council does not require fuller treatment in this Bill because it is formally established, not by legislation, but by the supplementary agreement I signed on Monday. No additional domestic powers are needed to give effect to the relevant parts of the Good Friday Agreement.

I understand Deputy Flanagan referred to paragraph 10 of Strand Three yesterday. This allows for two or more of the British-Irish Council members to develop separate co-operative arrangements. It recognises that given the diversity of the members, there will be issues which are not of concern to all of them. It attempts, therefore, to balance flexibility with the maintenance of the British-Irish Council's corporate identity. I would like to think that if two or more British-Irish Council members meet to develop separate co-operative arrangements, they would let the others know. That would be a matter of courtesy; in other words, that the British-Irish Council in its totality would know what other members are doing.

Because of the timescale of the debate, I do not intend to revert to the point I raised yesterday to which the Minister just referred, but it is of great importance in the context of matters of devolution in the United Kingdom which will have wide-ranging consequences for the future shape of the British-Irish Council. Section 4 deals specifically with the arrangements under Strand Three. Obviously, Strand Three, paragraph 1, is particularly wide-ranging in terms of effect and accepting that, there needs to be a very clearly defined role and function for the British-Irish Council. Obviously, it will be separate from the North-South Ministerial Council, the British-Irish Intergovernmental Conference and the Joint Ministerial Committee on Devolution in the UK.

I am concerned about duplication of fora. For example, there will be matters on the agenda for the British-Irish Council which will be under discussion at the North-South Ministerial Council and the Joint Ministerial Council on Devolution in the UK. I wonder about the question of priority. Will the British-Irish Council be squeezed out against the background of the other bodies? There needs to be a clearly defined role and function for this body at the outset so it will not become engaged in a form of duplication of issues. Again, it needs a strong interparliamentary focus which would be attended by Government representatives who would not only listen to the debates but subject themselves to answering questions from time to time on Government policy. As I said yesterday, I would look towards a beefed up British-Irish Interparliamentary Body.

Will the Minister comment on the secretariat? Will there be an independent secretariat to the Council which will not be supplied in an unbalanced way by either the UK or ourselves? Will the budget be excessively dependent on the United Kingdom? What type of budgetary arrangements will we have? On the question of members, do we accept that this body will be evolutionary? At the outset, how many members will there be? Will there be eight or 15 and who will be involved at the initial stages? Presumably, those mentioned in the Agreement, Britain, Ireland, Northern Ireland, Scotland and Wales, will have representatives, as will the Isle of Man and the Channel Islands. I wonder about the workings of a body which has a mix of sovereign states along with Crown dependencies, which are obviously of a different legal framework than others. I am wondering also about Tyneside, Merseyside, Cornwall and other areas that ultimately may seek some form of devolutionary powers within England. The English regions will lose out to the Northern Irish, the Scots, the Irish and the Welsh because they will still have their respective Secretaries of State. The overall composition strikes me as one that can very easily become unbalanced. Perhaps it is too early to address these matters, but I wonder what the thinking within our Government is on a potentially lopsided body that will just be part and parcel of what could well be a labyrinthine structure.

Does the Minister feel there is a necessity to have section 4 in the Bill? It is not a body which requires legislation, as the Minister indicated. I am not objecting to the section, but it seems superfluous.

Both Deputy De Rossa and Deputy Flanagan have made important points. If I may take Deputy De Rossa's point first, it may not be that they are strictly necessary but we felt it desirable to include some provision in view of the importance of these institutions and the fact that there is equivalent provision in the British Northern Ireland Act, 1988.

Deputy Flanagan has made an important point – it is one that will have to be watched – concerning the question of overlap and whether the British-Irish Council will become a talking shop? These matters will have to be considered and worked out. We will be careful to avoid overlap and agree that the body should not be a talking shop but should have real projects.

I agree with the Deputy's point on the parliamentary tier. I attach fundamental importance to that and always have. I will continue to stress that a parliamentary tier should be up and running when all the other bodies develop to that point and where there is agreement in the various parliamentary assemblies.

The Taoiseach mentioned figures in his speech yesterday on what the intended budgets may be. I have a note, which I can let the Deputies have, on the reference to the budget in Appendix II of the North-South bodies on the one hand and in relation to other matters related thereto. Issues such as budgets remain to be worked out. Other areas can be considered by the body in due course but it is too early. It is a matter for the bodies themselves, and the British-Irish Council in this particular instance, to consider and examine.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

This is a regulation to remove difficulties. Section 5 is a provision of a type usually included in Bills which have the object of establishing new bodies or putting new administrative procedures in place, particularly where formulation of the relevant legislation has been done, in this instance at speed and with some urgency. It is not always possible in such circumstances to envisage at the time of drafting, all the minor practical policy and legal difficulties which may arise. This provision is designed to provide an opportunity to remedy these after the Bill has been passed.

While section 5 may appear widely drafted, it must be interpreted in a constitutional manner. This means that nothing which can be done under this section may go beyond the principles and policy enshrined in the Bill. Section 5 clearly sets out the parameters and circumstances under which this power may be exercised. Any regulations made thereunder must not stray beyond these parameters.

The purpose of section 5 is to give effect to the Bill. Section 5 is also, of course, subject to a temporal limitation of three years. This is to emphasise that it is intended to operate only for a transitional or teething trouble period.

Finally, regulations under section 5 are subject to Dáil scrutiny under the following section. This must be laid before the Dáil which may pass a resolution within 21 days to annul the regulations in question. This provides a further constitutional safeguard.

I wondered myself if it was necessary to include this section in the Bill. My legal advice is that it is, for the reasons set out. There are precedents, including the Ethics in Public Office Act, 1995, and the Waste Management Act, 1996. This section would not have been used to legislate for any substantial amendment of the treaty. That would have to be done between both Governments.

This matter was referred to by the Leader of the Labour Party yesterday. When I received the Bill yesterday and read it, I found it was extraordinary in terms of its width. It was described to me as being novel, and indeed it is. Because of the time frame for the debate, perhaps the Minister can give us an example of the type of situation envisaged by the Taoiseach in which he would need to exercise this incredible power in so far as he can regulate on any difficulty under the agreement—

Anything. Decommissioning, everything.

—any difficulty on any aspect of the agreement or any matter that, in his opinion, is a difficulty for the time being. Rather than just speaking on the breadth of this section, perhaps the Minister can give us the type of example that gave rise to the thinking on the introduction of section 5.

May I acknowledge the political concession in this section? It acknowledges that some day we may have a female Taoiseach.

Hear, hear. I was about to say that.

I am sure it gladdens the hearts of the Minister, Deputy de Valera, and the Minister of State, Deputy O'Donnell, that, at least, that is acknowledged in this section.

It was the Minister for Public Enterprise, Deputy O'Rourke, who included it.

The Minister, Deputy O'Rourke, is not present. Despite the reassurances of the Minister, it reads as an extraordinarily broad power for the Taoiseach of the day to modify legislation. I may be wrong and I am not a lawyer. There are lawyers in the House who may be able to correct me on this but I understood it was not possible for this State to implement European Union directives by way of secondary legislation or regulation. I understood it was necessary to bring in primary legislation which would have the effect of amending pre-existing Irish legislation. This section appears to give power to the Taoiseach to bring forward a regulation which would modify legislation. It may be that the point the Minister made concerning significant amendment is not involved, but who makes that judgment?

That brings me to the second point I want to make in relation to section 6 which is connected. The regulation the Taoiseach may bring in is covered under section 6 which provides for what is known as a negative form of regulation. The Taoiseach will make a regulation and unless a motion is brought forward negativing that, it will become law within 21 days. The practice is that a negative motion of that kind can only be brought forward in Private Members' time. I am not aware of an example of a negative regulation being brought forward, certainly since 1982, when I entered the House. I have had serious reservations about regulations made in this way, but it had not been possible to bring forward a negative resolution or even to have had the regulations debated. When regulations of this kind are put forward in the House they are not debated unless a motion to negative them is tabled.

The Taoiseach will have these broad powers for three years under section 6 and the regulation he or she will make will not be debated in the House unless the Opposition of the day can bring forward within 21 days a resolution objecting to it in Private Members' time. I am not sure of the legality of such a motion because I have been repeatedly told that motions carried in Private Members' time have no effect. We need to ask serious questions about the nature of what is proposed in this section. I am not suggesting a Taoiseach would bring forward frivolous proposals or seek to change the legislation in a serious way for party political reasons, but the House is entitled to have an opportunity of examining the regulations that are being brought forward. I suggest that section 6 should be altered at a minimum so that the Taoiseach is obliged to have the regulation debated and voted upon in Government time.

What strikes me is the proverbial kitchen sink nature of section 5. Whatever about a provision that says, If, in any respect, any difficulty arises in bringing any provision of this Act – which is an Act of our Parliament and we stand alone to bring these bodies into legislative force – or the Agreement and so on. Picture a situation where a Taoiseach decides there is difficulty in bringing into operation, or in relation to the operation of any such provision, and he or she decides unilaterally to bring forward a change to implement some element of the Agreement, for example the very thorny question of decommissioning. Does this section allow the Taoiseach – either him or her – and I am glad to see a reference to her, anticipating what I hope will happen before too long—

In the next 12 months perhaps.

One never knows. Where stands this section in relation to the part of the Agreement reached in the multi-party negotiation under the paragraph, Validation, Implementation and Review, pages 31 and 32 of that document, in which it gives an indication of how institutions can be reviewed if they are not working properly? Paragraph 7, page 32, states that if difficulties arise which require remedial action across the range of institutions, or otherwise require amendment of the British-Irish Agreement or relevant legislation, the process of review will fall to the two Governments in consultation with the parties in the Assembly. I cannot find a reference to consultation with the parties in the Assembly in section 5. It does not mention the Assembly. It strikes me that the person who framed this regulation to remove difficulties – as it is quaintly called – has not cross-referenced the section to the relevant paragraph in the Agreement. Will the Minister tell us how the section we are discussing and the Agreement reached in the multi-party negotiations marry together and how it does not completely fly in the face of the consensus approach which gave rise to the Agreement and the way in which the two parties are marrying their legislation together?.

If the Deputy had continued to read the rest of the paragraphs that fall under validation, implementation and review, her questions would have been answered in part. I do not disagree with the views expressed by the Deputies on this section. On the contrary, the Deputies have serious points to make and have made them. This section was not included gratuitously to cause angst to the legislative process. It will apply only to minor technical issues that might have been overlooked in speedy drafting, as I have already indicated in my opening remarks. I cannot think of a problem that might arise except where a section has been misnumbered. It is a very technical section.

It does not say that.

It does not, but there is a precedent and I have already indicated where the precedent arises. I have alluded to numerous precedents, including the Ethics in Public Office Act, 1995 and Waste Management Act, 1996. If Deputies refer to those Acts they will find a similar provision. There is nothing sinister about it. I have dealt with section 6 in my reply to section 5 in stating that it is a standard negative resolution section which is common practice. It is an unusual but common practice.

The Minister is right. It is a common practice and virtually every regulation that is made by a Minister is made by way of a negative motion. My point is that because section 5 is giving such wide discretionary powers to the Taoiseach of the day for a three year period, at a minimum in return for that support section 6 should make provision for a positive motion. When the Taoiseach of the day wants to amend how a particular section operates, he or she should come before the House, explain the situation and give the Dáil an opportunity to debate it and, if necessary, vote on it. The purpose of a Committee Stage is to enable everybody apply his experience to the issue. In the vast majority of cases the wisdom of the Taoiseach of the day, or the Minister and his or her officials, may prevail but there are other experiences in the House. This is a fairly new and wide power and it should be recognised that it should be done by way of a positive motion.

I have a further question. The Minister says that this should deal with minor technical issues. We have that as the Minister's interpretation of the wording. I do not think the wording of the section confines it to minor technical issues as the words minor or technical are not used. The section states: If, in any respect, any difficulty arises in bringing any provision of this Act or the Agreement into operation or in relation to the operation of any such provision, the Taoiseach may by regulations.." Who is to know whether the necessary amendment is not a major one? It may be found that a section of the Bill is totally unworkable for some unforeseen reason – that is not beyond the bounds of possibility but one would hope it does not arise. Nothing in the section confines this power to minor technical issues, although one hopes that is all which would emerge. I do not wish to delay the debate because the legislation is important but, for that reason also, section 6 should be amended to provide that the Taoiseach of the day should put before the House a motion on any amendment he may wish to make to this legislation.

The least we should do is modify section 6 to provide what Deputy De Rossa has requested. I asked the Minister to cite examples of the difficulties which may arise and he referred to matters of minor technical detail—

I mentioned misnumbered sections, for example. I do not disagree with what Deputies are saying.

My difficulty is not so much with the legislation. The precedent quoted by the Minister was the Waste Management Act but that was different because it did not bring into effect an international treaty or agreement of the importance of the Good Friday Agreement. We were told this legislation mirrors that which was passed by the House of Commons earlier this week but I did not see in that Bill a power being reserved to the British Prime Minister similar to that which the Taoiseach is given under this legislation. It is a sweeping power – if there is a difficulty and the Taoiseach considers it expedient to resolve it by changing the legislation, he can do so by regulation, and we parliamentarians will know nothing about it until it is placed in the Library.

The Minister cited the Waste Management Act and the Ethics in Public Office Act but we are masters of our own destiny as far as they are concerned. They refer to the 26 Counties and it is all right if someone wants to change them. This section would allow amendments not just to this legislation but to the Agreement. Should the Taoiseach be given this power? Deputy Flanagan asked whether the British Parliament gave its Prime Minister similar power to amend the Agreement. The section states that if any difficulty arises in bringing any provision of the Agreement into operation, the Taoiseach can make an amendment without telling the Oireachtas, and if we do not notice it in the Library it will become law within 21 days.

If the Taoiseach of the day decided to change particular aspects of this legislation it could have significant implications for the working of the institutions which the Bill brings into being. For example, there might be a row over food safety or, in the event of a BSE outbreak the Taoiseach could decide to stop cattle from the North entering the South to mix with our cattle. The Minister said the provision is merely to allow for minor changes in case a dot or comma is left out or "section 5" should read "section 6", but the provision does not state that. As Deputy De Rossa said, we must at least have greater certainty about what the section will do. We are not masters of our own destiny in the legislation or the Agreement, we are implementing an international accord between two sovereign countries.

The legislation has been introduced speedily and as a matter of urgency and the Government is appreciative of the manner in which the Opposition has met and dealt with it. There is no intention to be unfair to this House. Having been here a long time I have always been conscious and strongly supportive of the rights, entitlements, responsibilities, and duties of Dáil Deputies of all parties.

I do not disagree with Deputy De Rossa, the point is well and strongly made and, taking account of that, I would be glad to give a positive rather than a negative tone to the section, as he suggests. Between now and Report Stage I will introduce an amendment to take account of the views expressed by him, Deputy Owen and Deputy Flanagan. I do so not from a sense of appreciation of the manner in which they have dealt with the Bill – although I am appreciative of it – but because they have made a valid point. It is important to remember that their point relates not to the present Taoiseach but the Taoiseach of the day.

It might be the Minister himself one day.

I think I have gone beyond that but sin cheist eile.

It might even be the Minister, Deputy de Valera. Would that not be interesting?

I am always honoured to sit beside a de Valera. The points made by the Deputies are reasonable and I will meet them reasonably. We should have another look at section 6 to give it a positive rather than a negative tone.

I thank the Minister for accepting the necessity, under section 6, of the Dáil having an opportunity to address any amendment which the Taoiseach of the day may bring forward under section 5. I welcome his agreement to approach such regulations by way of positive rather than negative motion. That is an important reform of the Bill.

It is not a question of believing the Taoiseach of the day, whoever he or she may be or from any party, would bring forward frivolous or unnecessary amendments, but mistakes have been made in this House by rushing through legislation. It happens not through deliberate intent on the part of Ministers and we are fortunate that, historically speaking, Governments have always acted responsibly in bringing forward legislation. We may not always agree with them but such measures are brought forward in the belief that they are necessary. Under the Minister's intended amendment to section 6 the House will have an opportunity to debate any amendment a Taoiseach will bring forward, and that allays my fears to some extent. Nonetheless, the power given to the Taoiseach in this section is extraordinary. If all that is intended is to address minor technical issues, it would have been possible to incorporate that in section 5 rather than providing for a broad, sweeping power in this section.

This section does not empower the Government to make any unilateral change to the terms of the implementation bodies Agreement. Any change to that Agreement requires agreement with the British Government, in consultation with the North-South Ministerial Council. On the basis of my undertaking, I do not believe I can add much more except to suggest that there is a point to be made that any change, whether it is technical, minor or major, to any regulation or legislation should automatically come before the House. However, I take the Deputy's points and I am prepared to meet them.

This is a "belt and braces" approach designed to correct various mistakes.

I am doing my best, Deputy.

Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

The section is agreed to, subject to the Minister introducing an amendment on Report Stage.

Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

Will the Minister comment on this section?

Section 8 deals with definitions.

Yes, but they are different to those contained in the previous Bill. Will the Minister explain those definitions?

I do not know from where Deputy Carey is coming in regard to this. Section 8 deals with definitions and refers to "the Act of 1990", "the Body", "the Council", "the Minister" and "the waterways". Perhaps the Deputy will elucidate on what is his problem in respect of the definitions.

My understanding is that the Minister for the Marine and Natural Resources has assumed responsibility for the Shannon Navigation Act, 1990. However, section 8 refers to the Minister for Arts, Heritage, Gaeltacht and the Islands. Am I wrong in stating that the Minister for the Marine and Natural Resources has assumed responsibility for the Shannon Navigation Act, 1990?

I do not believe that matter arises. As the Deputy knows, the first item of business will be what will happen in respect of the Shannon navigation. We want to transfer the statutory powers and functions relating to the inland waterways to the new body. That transfer will take place in two phases, the first of which, as stated on Second Stage, will see the body assume responsibility for the Shannon-Erne waterway. Phase two, which will bring us up to 1 April 2000, will see the Erne system, the Shannon navigation, the Royal Canal, the Grand Canal and Barrow navigation transferred to the new body. These come under the remit of the Department of Arts, Heritage, Gaeltacht and the Islands which is why specific reference is made to the Act of 1990 in Part ll of the Bill.

The Minister did not answer Deputy Carey's question.

The reason I raised this matter is because the Minister for the Marine and Natural Resources has assumed responsibility for the safety of people on the Shannon under the Shannon Navigation Act, 1990. This explanation was recently given to the public. People who live on the banks of Lough Derg on the Shannon are of the understanding that the Minister for the Marine and Natural Resources will be responsible for providing rescue services on the Shannon. Is the Minister stating that it is she who holds that responsibility?

The Minister is obviously not prepared for this debate.

There is a distinction here. The question of safety is, as the Deputy pointed out, the responsibility of the Minister for the Marine and Natural Resources. However, navigation falls under the remit of the Department of Arts, Heritage, Gaeltacht and the Islands and is, therefore, covered by the section.

In view of the Deputy Carey's point, in respect of which the Minister has not provided an answer – I am surprised by the slightly truculent approach she adopted initially – would it not be wise to consider including the Minister for the Marine and Natural Resources in the definitions as a person to whom section 8 might refer?

Section 11(3) states that "the functions, assets, rights and liabilities of Bord Fáilte Éireann as a member of Shannon-Erne Waterway Promotions Limited are hereby transferred to the Body". A considerable amount of money is spent each year in marketing internationally the navigable waters of the Republic.

We are dealing with the definitions at present and we are trying to dispose of section 8.

That is what I get for charging into the Chamber without being fully briefed. I will ask the question later.

I am sure Deputy Carey is grateful for the protection his party leader attempted to give him but I am also sure the Deputy can ask his own questions. However, that is the business of those seated on the Opposition benches.

The trouble is that the Minister has not answered our questions.

I answered both questions. The trouble is that the Leader of the Opposition and a member of his party are not interested in listening to the answers.

The Minister did not answer them.

I reiterate that this matter involves the definition of "safety" and that of "navigation". The question of safety comes under the Department of the Marine and Natural Resources and, therefore, it is the responsibility of the Minister for the Marine and Natural Resources while that of navigation comes under the Department of Arts, Heritage, Gaeltacht and the Islands which makes it my specific responsibility. Hence the need to allude to it in the Bill.

That is not the case. The man who introduced the Shannon Navigation Act, 1990, Deputy Daly, is standing in the lobby and, as far as I am concerned, responsibility for safety on Lough Derg rests with the Minister for the Marine and Natural Resources. The Minister is not concerned about people's safety.

I apologise; I did not hear the last part of the Deputy's point.

He said that safety is not one of the concerns of the Ministers.

I must repeat that, whatever Deputy Carey might believe, the position in respect of safety is clear. Just as safety at sea is the responsibility of the Minister for the Marine and Natural Resources, safety on our inland waterways is also his responsibility. However, internal navigation is the responsibility of the Minister for Arts, Heritage, Gaeltacht and the Islands. Whether the Deputy or other Members of the Opposition want to accept that is another matter, but that is how things stand at present. That is why particular reference is made to the Act of 1990.

Why is it that navigation will become the responsibility of an all-Ireland body while it appears that the safety of such navigation will not be the responsibility of that body? If, as is acknowledged on both sides of the House, safety is now a matter for the Minister for the Marine and Natural Resources and that Minister is not mentioned in the legislation, presumably the safety considerations do not come within the remit of the council or the all-Ireland body. That being so, there will be a dysfunction in the sense that navigation will be dealt with on a 32 county basis while safety will be dealt with on a 26 and six county basis. That does not make much sense.

I am sure the Leader of the Opposition is aware that, in terms of the legislation, we are only discussing six all-Ireland bodies which will have specific functions. The legislation does not deal with every area of Government. This section deals specifically with waterways and that is what was agreed by the two Governments.

This is the outcome of the negotiations between the Governments on the treaty. The responsibilities relating to inland waterways provided for in our legislation are being transferred on a phased basis.

The Minister is accountable to the House for the result of the negotiations. It is for her to justify why she and her colleagues agreed to a separation of safety and navigation. Navigation will be the responsibility of a 32 county body. The Minister has a responsibility to explain why she failed to ensure safety would be dealt with on the same basis. It is not a coherent arrangement.

The Shannon Navigation Acts date from the last century. The Bill, which refers to six specific bodies, contains nothing new. It reflects the current position in terms of the distinct powers and functions of the Minister for the Marine and Natural Resources and the Minister for Arts, Heritage, Gaeltacht and the Islands relating to safety and navigation. If that is unacceptable, there will be other opportunities to refer to the issue.

Section 8 contains the definition of "the Minister". Section 9 outlines the functions of Waterways Ireland, one of which will be the management, maintenance and development of inland waterways, principally for recreational purposes. The definition of "the Minister" should include the Minister for the Marine and Natural Resources so that those who use inland waterways for recreational purposes feel protected. The Minister for Arts, Heritage, Gaeltacht and the Islands is responsible for navigation only. She is not responsible for the provision of lifebuoys or other safety features. How can safety and navigation be separated?

The lack of knowledge of members of the Opposition of the current position on our inland waterways is amazing. Deputy Owen is correct, the legislation deals with the functions of management, maintenance, development and restoration of the inland navigable waterways system on the island. It mirrors current provisions. If the concern is genuine, why was the matter not raised when I piloted the relevant legislation dealing with my powers and functions through the House some months ago?

When the Minister piloted the legislation through the House she was aware that the current safety regime on Lough Derg, County Clare, is managed locally on a voluntary basis. The Department of the Marine and Natural Resources does not perform this function. The Minister will be aware, having attended meetings in Scariff, Mountshannon and Whitegate, that there is a need for statutory recognition. I was glad to hear the Minister for the Marine and Natural Resources would assume responsibility for safety on Lough Derg. This was announced bravely the other day as more good news from the Government by some of the Minister's colleagues. Now she is washing her hands of the matter. The section states that "the Minister" means the Minister for Arts, Heritage, Gaeltacht and the Islands. There is no reference to the Minister for the Marine and Natural Resources.

The House expects all the inland waterways on the island to be connected. One should be able to travel from the Lagan in Northern Ireland to Kerry through the Shannon. To ensure the safety of users there is a need to include a reference to the Minister for the Marine and Natural Resources.

If the Deputy wishes to rewrite the law on navigation and safety, it is a pity he was not present when I piloted the relevant legislation through the House when his views could have been considered. I have responsibility for navigation on the Shannon, the Barrow and canals. I have always said to my staff who are—

Obedient.

—exact that as much protection as possible should be afforded on our inland waterways. The Minister for the Marine and Natural Resources has assisted us in these matters. He performs these functions on waterways which are not under my control.

This will come back to haunt the Minister.

Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

Subsection (2) states:

The Body shall be recognised as, and as having all the attributes of, a body corporate, including perpetual succession, the power to acquire, hold and dispose of lands or other properties and the power to sue. How many people will be on this body? Does she not consider the use of the words "including perpetual succession" will create problems in the future? The use of the word "perpetual" in similar circumstances with regard to voluntary bodies has given rise to serious difficulty. In some instances families have taken over such bodies. The use of this word is risky and should be excluded.

I welcome the Bill. It is an historic moment in the history of our country and one of which I am proud. I hope benefits will accrue from it in the same way as benefits accrued from the Anglo-Irish Agreement, which led to funding by the International Fund for Ireland. That brought major benefits to the six counties in the North and to the six Border counties.

I especially welcome this section because of its reference to the Shannon-Erne Waterway and the Erne-Cavan-Fermanagh linkage, which is a cross Border venture that has great development potential but has been dormant for the past 30 to 40 years because of the troubles.

Deputy, I will call on you to speak on the next section, which deals with the functions of the body. This section deals with the status of the body.

I wish to deal with the body in principle. It has been suggested that offices and sub-offices should be established in the Border region. County Cavan should be considered as a location for some of these because of the Erne-Shannon linkage. I also support the case made by Deputy McGahon, and by Deputy Crawford with regard to County Monaghan. I am aware we all cannot be facilitated. Nevertheless, I make a strong case for my county because the major roadway to County Fermanagh, the N3, which runs along the River Erne was closed 26 years ago and our natural hinterland with County Fermanagh was cut off, with serious consequences. Similarly the waterways were not developed.

Our claim can also be justified on the strength of our achievements with regard to the Anglo-Irish Agreement and the International Fund for Ireland. Eamonn Dunlon and Associates has cited our county as having given best value for money of the 12 counties involved in the fund.

Section 9(3) provides that the body may be sued in its corporate name while section 9(2) states:

The Body shall be recognised as, and as having all the attributes of, a body corporate, including perpetual succession, the power to acquire, hold and dispose of land or other property and the power to sue.

I understand that neither the Freedom of Information Act nor the Ethics in Public Office Act will apply to these bodies primarily because similar legislation does not apply in the UK. Given this, there is a need for some provision in the legislation for these bodies to be accountable and transparent to the citizen. If a person cannot access files or information under the Freedom of Information Act, how may a citizen who feels aggrieved by the actions of a body access such information?

I understand the Agreement provides for codes of conduct, but these are not referred to in the Bill. If they are to be bound by some forms of conduct, in what way will they be enforceable? Will they be voluntary codes? Does the Minister not consider it would be better to include a provision to ensure, where codes of conduct are developed and agreed by the bodies and the council, they will be implemented? It appears we are creating a situation whereby the same kind of accountability that applies to local authorities, health boards and so on will not be available to the citizen with regard to these boards. They should arguably be more open than those covered by existing legislation.

It was originally assumed there would be a body covering all Ireland tourism. That may develop from references to tourism in the Agreement. Paragraph 1.6 of Part I of Annex 2 to the Schedule states:

.the Body will engage in promotion, including marketing and development of the tourism and commercial potential of the inland waterways for which it has responsibility.

Bord Fáilte spends a significant amount of money on an annual basis marketing the tourism potential of the inland waterways. Is that function to be transferred to this board or is there likely to be parallel marketing by the board, by Bord Fáilte internationally and by the regional tourism boards on a national basis? If the board has the authority to engage in marketing the tourism potential of the inland waterways, what relationship will there be with the current system of marketing that potential, which is undertaken by Bord Fáilte? Will there be parallel marketing and, if so, what is the remit and current status of the regional tourism boards in this regard?

With regard to the use of the word "perpetual", this is a standard provision to ensure continuity in law. I was present with the Minister for Foreign Affairs when the question regarding headquarters was raised. No decision has been made on a location, but I will take on board the points, many of which I share. There will be an opportunity to correlate further information on that at a later date and before a decision is made. I am aware of the Deputy's concerns, which arise not only because a location in the vicinity of his constituency could be agreed but also because of a recognition of the difficulties that have arisen there in the past number of years.

Deputy De Rossa raised the question of transparency and the application of the Freedom of Information Act and the Ethics in Public Office Act. I concur with his view in that we want the greatest amount of transparency possible. The Freedom of Information Act will not apply. However, special arrangements will be made at a later date to draw up a body with its own code of conduct. I hope the issue of transparency will be covered in future discussions and that such a code will be drawn up specifically for this purpose so that everything is as open as possible. That is how I hope to proceed.

I asked the Minister if there will be eight or 15 people on this body. She did not explain what is meant by "perpetual". I am sure the Minister knows of other such bodies which have been established where people have acquired the right of perpetual succession. They now believe they are handing on that right to a family member. What is the necessity for the word "perpetual"? The word "succession" is enough when establishing the body. What is the legal reason behind it?

As I pointed out earlier, it is a standard provision because we are talking about continuity in law. Surely the Deputy would want to ensure that is included.

It does not affect continuity in law.

Perhaps the Deputy has legal qualifications, but I do not. I am taking the advice of those who have legal expertise and are used to drafting legislation. I am told it is a standard provision to ensure continuity in law. I am sure the Deputy wishes to see that in this legislation.

As regards the number of people on the board and how it will be constituted, at the top of the hierarchy will be the North-South Ministerial Council followed by a chief executive. There will not be a board as in the case of the Irish language, for example, which has a different structure and approach. There will be approximately 350 staff working under the chief executive.

Will that be on each body or just on this one?

The body for dealing with the waterways will not be in the form of a board. It will come under the North-South Ministerial Council and a chief executive will take responsibility. A staff of approximately 350 will work under the chief executive.

They will be existing workers from both sides of the Border. It will be different from the other bodies.

I asked a question about freedom of information and ethics. As things stand, the Irish Freedom of Information Act will not apply to this or any of the bodies. I understand there is no similar legislation in the UK and that this is part of the reason the Freedom of Information Act and the Ethics in Public Office Act is not being applied to these bodies. These bodies will be quasi-political, they will be engaged in serious decision-making and the implementation of those decisions which will have an impact on the citizens in the areas in which they operate. Citizens, therefore, should have access to documentation if they are not satisfied with the way these bodies operate.

I accept the Minister is sincere when she says she wants codes of practice to be in place and to operate, but there is no obligation on a board or body to comply with a code of practice. If, for some reason, it does not suit a board to lay a document before the media or an interested citizen, it can refuse even if it is in breach of a code of practice.

My own experience of local authorities and health boards is that they are helpful but if they want to protect their own self-interest or the rationale for decisions made, particularly if they feel there may be a legal contest over such decisions, they will keep that information to themselves. I will not bore the Minister with the details of a recent case where information about a decision made by a local authority was refused. When I sought the information under the Freedom of Information Act, I discovered that the basis on which the decision was made was scanty and that little documentary back up was available.

I ask the Minister to consider introducing an amendment to this Bill which would provide that where codes of practice are adopted by the bodies, they will be implemented by regulation before this House and have legal effect. Otherwise, we are only living in hope that if codes of practice emerge, bodies will voluntarily comply with them.

I understand the sentiments underlying the Deputy's questions. It would be easier if there were two comparable approaches in both jurisdictions to freedom of information. It is the Government's wish that the bodies are fully accountable and amenable to the freedom of information and ethics regimes. However, that is not possible because the situation in the North is different from our legislation on freedom of information. I assure the Deputy it is the Government's wish that an ethics code of practice will be drawn up in conjunction with those pertaining to this agreement. It would be easier if we did not have two systems and different approaches but, unfortunately, we have. The best way is to agree to draw up a stringent code of practice, which will be done.

I asked what I thought was a relevant question about the status of the board, its functions in the tourism and marketing areas and its relationship with Bord Fáilte, but it seems to have floundered in Lough Derg. Perhaps the Minister might revive it.

I apologise to the Deputy for not referring to his question. The legislation on inland waterways does not change the position of the regional tourism boards. Full co-operation in promoting the tourism potential of waterways with the tourism board will continue. I accept what the Deputy said that the inland waterways have tremendous potential, particularly for our cultural tourism. I, like him, would wish not only to see this continue but to be improved. It is important to take every opportunity to market that potential.

Bord Fáilte carries out the international marketing function for inland waterways. This board is now entitled to engage in promotion, including marketing and development, of the tourism and commercial potential of the inland waterways for which it has responsibility. Does that mean that the international marketing of tourism is being taken from Bord Fáilte, or will there be parallel marketing of its tourism potential? Will this board market the tourist potential internationally or will Bord Fáilte do it?

I hope the question of duplication will not arise and that there will be co-operation and co-ordination. An opportunity exists for the regional tourism boards and the board will work in conjunction with others in promoting particular issues. I see that pertaining to this issue whereby there would be co-operation in promoting our waterways.

The Minister misunderstood my question. The function of the regional tourism boards is to market in their own regions. The function of Bord Fáilte is to market internationally. This board is entitled to become involved in the promotion and development of the tourism and commercial potential of the inland waterways. Does that mean it will market internationally this tourism potential and, if so, will that not duplicate the work being done by the international marketing wing of Bord Fáilte?

Why include that role under this body when an effective body is doing it?

The marketing of the inland waterways under this body will be done in co-operation with Bord Fáilte. Bord Fáilte has a distinct role to play in the marketing of this inland waterway. We hope there will be full marketing of the potential of our waterways because, as has been said in many debates in the House, that is an area of enormous opportunity, particularly for Border counties that have not had the opportunity to promote their counties. This will be an additional opportunity to do that.

In section 11(3)—

I want to bring some order to the debate.

I will finish on this question.

Have we agreed to section 9?

My question arises from the Minister's reply.

We are now dealing with section 11.

No, the Minister said—

Can we agree to section 9?

The Minister said there will be co-operation in the marketing of the tourism potential.

We are debating section 9. If we dispose of section 9 the Deputy can ask a question.

It is about the status of the board.

The Deputy is referring more to the functions of the board than the status.

I want to ask a question which the Minister has raised in her reply.

We can agree section 9 and move on to section 10.

Is section 9 agreed?

I will agree to section 9 provided the officials give me an explanation for the need to include the word "perpetual" in section 2. I will be satisfied if I get a note from the officials about the legal position on that. In my experience the use of the word "perpetual" in legislation such as this can lead to untold problems such as people not retiring, be it directors or others. It has been used in an effective way.

I assure the Deputy that my Department will be in contact with him giving him the reasons for the use of the word "perpetual". I have given the reason for that on more than one occasion in the House. It is a common term and there is a specific reason for its conclusion.

Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

The Minister said there would be co-operation between Bord Fáilte and this new body in the marketing of the tourism potential of the inland waterways, yet the functions, assets, rights and liabilities of Bord Fáilte, as a member of Shannon-Erne Waterway Promotions Limited, are being transferred to the body. In terms of Bord Fáilte's impact on the international marketing of this tourism potential, its rights, assets and liabilities in respect of Shannon-Erne Waterway Promotions Limited are being transferred to the body. How does that fit in with the Minister's statement that there would be co-operation between Bord Fáilte and the new body in the marketing of the tourism potential if the assets, rights and liabilities are being taken from Bord Fáilte and given to the new body?

May I ask for clarification from the Deputy on this matter? I have already explained there will be co-operation between Bord Fáilte and the body under discussion here.

The Minister said there will be co-operation but the body is entitled to involve itself in the promotion of the tourism potential of the inland waterways; that is what the body is now entitled to do. It can engage in the promotion of the tourism potential of the inland waterways at international tourism shows and fairs. That is partly the remit of Bord Fáilte. In respect of Shannon-Erne Waterway Promotions Limited, the functions, assets, rights and liabilities of Bord Fáilte are being transferred to the body. One of the functions of Bord Fáilte is to promote the tourism potential of Shannon-Erne. That is now being taken away from Bord Fáilte and given to the body. Will the Minister explain the co-operation of which she speaks?

The Deputy is correct in outlining the role of Bord Fáilte. With regard to Shannon-Erne Waterway Promotions Limited, this body was established specifically to promote the Shannon-Erne waterway on a North-South basis. The nature of the body and its promotional functions relate to tourism potential generally, and the functions of the Shannon-Erne Waterway Promotions Limited are now being transferred to this new body. The body that will be set up under the North-South Ministerial Council will work in conjunction with the bodies that already market the island.

There will be duplication, and an office will have to be opened in South Africa or somewhere else.

We have to make the distinction, not sweeping statements, between the power that has now been given over to this body, which is a logical move if the operations of the Shannon-Erne waterway are to come under the inland waterways provisions in the Bill, and the remit of Bord Fáilte which will work in conjunction with this body in terms of marketing.

The Royal Canal and all other canals will be promoted individually?

That is a different issue. This refers specifically to the Shannon-Erne waterway.

It is important to clarify some points. Where will the headquarters of this board be located? Will it be in the Cavan-Monaghan region? I do not want to get into trouble with my colleague behind me from Cavan but one proposal that has come forward is the extension to the Ulster Canal which goes from the Erne, through my county, and on to Lough Neagh. The Blackwater and the Faughan rivers cross the Border. Will it be extended to ensure the potential of those structures are taken into account? I worry when I see Deputy Kenny become excited about the Shannon. We want to see the Border area benefit from what is a cross-Border structure. We need to be clear about the location of the headquarters because we heard earlier that one headquarters will be located in Armagh.

I want to support my constituency colleague and advise him that I have already laid claim to the town of Cavan for one of these headquarters and I believe I have the Minister's goodwill and I hope to retain it. I hope we will not fall between two stools with regard to the promotion of this region. The Erne catchment region which comprises Fermanagh and Cavan has been largely unsold. It was not a saleable product over the last decade due to the troubles. We must get the marketing right. There is tremendous potential for tourism that will benefit smallholders and alternative enterprises in tourism related projects.

There are various queries about the Minister's responsibilities. We have established she is responsible for navigation. There are years of work ahead in that area because there are vast areas of mudbanks and other obstacles in the Erne catchment. I have travelled the area and did a little duck shooting there so I am aware of what is available and what must be done.

Goodwill will be forthcoming. The Bill uses the word "acquiring" which I do not like. When acquiring rights or rights of way that have been closed for decades, it is better to approach the landowners with goodwill. Do not adopt a heavy handed approach. The people themselves wish to be involved in realising the potential of this area.

Now that the Minister has this power I wish to draw to her attention the little piece of rock on the Erne between Belturbet and Killeshandra about which I have written to her on numerous occasions. It has not yet been removed so the Minister might take it on as her first project. If it is removed it will make the Erne navigable to the Shannon. We have one of the finest waterways in Europe and it has tremendous possibilities. I hope we get this legislation right and that we can market and organise the waterway properly so it can be made available for the many pursuits for which it is suitable – boating, fishing, swimming, canoeing—

There are pike as big as sharks in it.

That is right. The Deputy visited there when he was Minister. He did his bit but, unfortunately, he was not in office long enough. However, the current Minister has the good of the area at heart and she will do a good job.

There are three references to the Ulster Canal in the Bill. It states that the Body will "take forward appropriate studies and appraisals in relation to the possible restoration of the Ulster Canal". The provision continues:

If, in the light of the outcome of the studies and appraisals referred to at paragraph 1.1(b), NSMC so decides, the Body will, with effect from such date as NSMC may decide, be responsible for the restoration of the Ulster Canal and, following restoration, for its management, maintenance and development principally for recreational purposes.

I have long had an interest in the Ulster Canal. In a previous political existence I was involved in trying to forward the development of the canal and in studies relating to it. I retain my committed interest.

It would be a considerable asset to the tourism potential of the area. There will be support for its restoration north and south of the Border. Indeed, more of the canal is located north of the Border. It runs from the Erne catchment at Belturbet into the Clogher valley, joins the River Blackwater and flows into Lough Neagh. There is considerable interest in this issue in both communities in the North.

Can the Minister elaborate on how she visualises this coming about? It will not be an easy project. The Ulster Canal has been out of commission for a long time and there might be problems in relation to the owners. Some public authorities might have ownership too. I hope that problem can be solved. Does the Minister have information on the extent to which there might be problems in taking back ownership from people who have owned it for a considerable length of time?

Is there a possibility of the Coalisland Canal being linked to the Ulster Canal? It could be reopened as work is advanced on the Ulster Canal. One other matter is worth mentioning. All Members seek to promote the interests of their constituencies when a decision is to be made about where a body should be located. I cannot link my present constituency with this body—

The Deputy can try.

—but I can link my former constituency with it. The historic village of Benburb is where Owen Roe O'Neill had his considerable victory in 1646. Benburb is on the Blackwater and, in terms of geographical location, would be ideal for the location of the body's headquarters.

I wish to make another point which will also interest the Minister, Deputy de Valera. The headquarters of the Servite Priory is located in Benburb. It has magnificent grounds and buildings—

This is not relevant to the section before the House.

It is relevant.

The section does not provide for this decision.

I am asking that it be taken into consideration. I will finish my point quickly.

The Deputy is making a Second Stage speech. He must confine himself to the section. Time is running out.

I am referring to the Ulster Canal. The Minister will discover that her grandfather, in 1949, was in Benburb to open that priory. He was in his rightful position as Leader of the Opposition and accompanied the then Taoiseach, Mr. Costelloe. I was present at that occasion. It would be an admirable location for the headquarters of this body.

I wish to raise the issue of transparency and the codes of practice. I do not question the Minister's commitment to ensuring there is transparency. However, that is just a promise. There is nothing in the Bill to oblige the bodies to adopt codes of practice in relation to transparency and freedom of information.

I accept it is not possible to state in this Bill that the Republic's freedom of information legislation will apply to these bodies until there is similar legislation in the UK which will also apply the same rules to the information. However, the Bill should at least include a provision whereby the codes of conduct freely adopted by the body concerned are enforceable in law and not simply at the whim of the board. The board might decide to overturn its code of conduct at some point because it might suit it. It could be a simple matter of self preservation. The Bill provides that the bodies can be sued as corporate bodies. They will, therefore, inevitably be self defensive in cases where people seek information.

There is a need for an amendment to this Bill to provide for the adoption of codes of practice which would be enforceable by law. I do not have a copy of the 8 March Agreement, but it is possible that under section 10(2) and (3) the reference to codes of practice could be incorporated in a similar way to Parts I and 7 of Annex 2. That type of amendment should be introduced or the Minister should give a solemn promise that adopted codes of practice will be enforceable by law and legislation should be introduced to provide for that. While every other public institution in this State is liable to the provisions of the Freedom of Information Act, we are creating a precedent whereby these bodies will not be liable to them.

I commend Deputies Boylan, Crawford and Currie, who spoke about his former constituency, for putting forward strong cases for their constituencies. They proved they are good constituency representatives by doing that. Deputy Crawford was not present when Deputy Boylan raised this matter in response to which I told him a decision had not been taken on the location of the headquarters. That will be decided later. It will be a political decision made by the Ministers concerned and I understand that decision will be made in the next few weeks. I understand the difficulties facing the Border counties, particularly in trying to promote tourism, because of the sad political situation that prevailed there over the past 30 years. I understand where the Deputies are coming from and I will consider their points when final decisions are made about locations.

A board in the context of the waterways is not a board in the sense of the boards of some of the other bodies referred to, particularly in regard to the Irish language. We are talking about a chief executive. His or her location has not been decided, but it will be decided in the coming weeks.

I agree with Deputy Boylan's point that we should approach landowners in a sensitive way. That must be done in regard to the acquisition of further lands.

I agree with what Deputy Currie said about the Ulster Canal. That would be a wonderful project. I am informed it is 80 kilometers long and runs midway between the North and South. That project has tremendous potential. I am sure the Deputy is aware a feasibility study carried out on the canal has been published. References were made to the likely cost of this project, which could amount to £80 million. The canal also requires a good deal of refurbishment because it has been closed since 1930. Further detailed studies on this project will have to be carried out by the new inland waterways body, but the fact that a feasibility study has been completed will greatly help to promote this project.

The Deputy also referred to the Benburb Gorge. I am informed it is a significant point in the canal. Perhaps I will have an opportunity to visit it in the not too distant future.

The Minister should go there on 6 June, the 50th anniversary of its opening. She could do some canoeing there.

I thank the Deputy for that information. I have a personal interest in this as well as political obligations as Minister with responsibility for the waterways.

I understand the view put forward by Deputy De Rossa. He is concerned that the body in question may not draw up a code of practice, which could pose a problem. It is very much the Government's wish that it should draw up a code of practice and, more importantly, Part I of the Schedule to the international Agreement provides that the bodies are required to carry out any instructions given by the North-South Ministerial Council. There will be an opportunity to ensure that such codes of practice will exist.

On a point of order, is this debate due to conclude at 9 p.m.?

I am disappointed we will not have an opportunity to discuss the six bodies concerned because of the time constraints applying to this debate.

The time allocated for this debate was decided by an order of the House and the Deputy was one of those who made that decision.

It is disappointing we will not have enough time to contribute to the debate on this historic legislation.

The Deputy agreed to that order.

Question put and agreed to.
Section 11 agreed to.
SECTION 12.

We now come to deal with amendment a1 in the name of the Taoiseach. Amendment b1 is cognate and, therefore, amendments Nos. a1 and b1 can be taken together.

I move amendment No. a1:

In page 10, subsection (1), line 2, after "land" to insert "(including an inland waterway)".

With the permission of the House, I wish this amendment to read "In page 10, subsection (1), line 2, after "land" to insert "(or part of an inland waterway)".

Amendment agreed to.

I move amendment No. b1:

In page 10, subsection (1), line 3, after "land" to insert "(including an inland waterway)".

With the permission of the House, I wish this amendment to read "In page 10, subsection (1), line 3, after "land" to insert "(or part of an inland waterway)".

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.

I move Report Stage amendment No. 3:

In page 11, line 24, to delete "of a land" and substitute "of land".

Section 13, as amended, agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

I welcome the establishment of a Food Safety Promotion Board. To paraphrase what the Minister said last night, food scares have no borders and neither must food safety measures.

For what functions will the Food Safety Promotion Board have responsibility? Will have it have responsibility for the promotion of food safety and research into it? The Food Safety Authority of Ireland was set up last year and presumably there is a similar structure in Northern Ireland. Over the past 12 months there was a great deal of public debate about food safety scares such as BSE. On such occasions it was apparent there were differences in emphasis, standards and testing between the various regulatory agencies. Does the Minister hope we will have a strict and similar standard through the Food Safety Promotion Board in both jurisdictions? At the time of the BSE debate there was one set of concerns in the South and a different emphasis in the North.

Inspection and enforcement remains the same on both sides of the Border. The introduction of this body will not change that. The laws which pertain to the Food Safety Authority of Ireland Act remain and the enforcement and inspection requirements of the authority remain with it.

This promotion board will research areas such as those the Deputy mentioned. The Food Safety Promotion Board can identify gaps in research and areas in which there is a lack of harmonisation. We may ask the Food Safety Promotion Board to conduct work in that field and report to the North-South Ministerial Council and the respective Governments could then examine means of amending their respective legislation to bring about harmonisation.

The role of the Food Safety Promotion Board is not to bring about harmonisation. The role of the board involves promotion, research and the communication of food alerts, something which already exists on an operational basis. The issue which will have to be teased out will be the reporting from the EU to this body. Will EU reports be issued to it through the respective sep arate Departments or will the relationship between the EU and the implementation bodies be direct? That is yet to be worked out.

The purpose of the board is not to bring about harmonisation per se. In the research it conducts there may be areas where there is a lack of harmonisation and it would wish for us to conform, but our agricultural interests and their agricultural interests may not directly coincide, as was the case with BSE.

Harmonisation is the key in such a small island. It is often the cause of confusion that there is one set of concerns here and another in Northern Ireland. We must focus on that at an early stage.

I agree with the thrust of what the Deputy says. In many instances scientific fact remains the same – it is location neutral. The scientific basis for surveillance of food borne disease is established fact available in all jurisdictions. There may be areas where similar problems are not approached on a similar basis and I would like to see the Food Safety Promotions Board being a vehicle by which we could deal with those anomalies where they are a matter of historical accident and not based on independent scientific fact.

It is proposed that the Food Safety Authority Act be amended. What role would the new body have in relation to genetically modified organisms or foods which may contain genetically modified ingredients? At the moment the Environmental Protection Agency has responsibility for monitoring that area and ensuring the regulations are complied with. Will this body, given that we are talking about food safety, also have a relationship with the Environmental Protection Agency? Will the Environmental Protection Agency be obliged to co-operate with it, as the Food Safety Authority will be?

The Food Safety Authority also has a role in the safety aspect of genetically modified foods. The EPA has a role in the growing and environmental circumstances of the propagation of genetically modified foods. There are a number of Departments which have different areas of responsibility in relation to genetically modified foods. The Food Safety Authority of Ireland will retain its role in that respect.

It is envisaged the Food Safety Promotion Board will allow us to build on that level of co-operation on an all-island basis. That area may be one which the body would like to take into its competence – assessing on an all-island basis what the impact of these issues might be. It would only be in relation to the food safety aspect, however. The question of delimiting the functions of the Food Safety Authority of Ireland is only in respect of the six areas outlined in the annex as set out in the Act.

Will this new body look at the development of an all-island quality bench-marking system and examine the possibility of carrying out a report on the food services within the country?

Food quality is an issue which is dealt with by the Department of Agriculture and Food. The Food Safety Authority of Ireland Act deals specifically with food safety issues and the Food Safety Promotion Board will deal with the areas I have outlined. The areas referred to by the Deputy are not envisaged as matters for this body but for the Department of Agriculture and Food.

This section has very few teeth; it seems to be an academic exercise. Paragraph 1.2 of Part 2 of Annex 2 to the Schedule states that the body will continue to be responsible for inspection and enforcement in the North and South separately. It goes on to state that existing arrangements for international negotiations, the setting of food standards and the promulgation of legislation and regulations will continue to apply. In other words, at international fora, the Northern Ireland and southern Ireland food safety authorities—

The Irish Food Safety Authority, there is no such place as southern Ireland.

I thank the Minister for that correction, perhaps he will allow me make my point. Both authorities could be arguing for different levels of food safety for this small island. Is the Minister saying that this is as much power as can be given to this body? There is very little understanding of how airborne infection can move from one side of the Border to the other.

It is very well to have academics, researchers and microbiologists sharing information, but there does not seem to be anything more coming out of this body. We could have major problems in the North and the Republic and we would not be helping each other except by sharing information about it. There are no regulations which can prevent food being sold on either side of the Border.

The Deputy will be aware that the priority of this Government in this area has been to set up an independent, science-based authority with teeth. The Minister of State, Deputy Moffatt, and I were commended last year when we introduced that Act. It has far greater power than the one envisaged by the previous Administration, which was simply an advisory board. I am glad it is recognised that we need a food safety authority with teeth.

The body envisaged in this legislation builds on existing levels of co-operation, North and South. The idea that this will start co-operation in these specific areas is a misnomer. There is already a great deal of operational co-operation, for obvious reasons, between both jurisdictions. In relation to food safety promotion, when a structured food safety campaign is necessary on an all-island basis, this board will co-ordinate it. It will not be done separately by the two existing boards.

As regards enforcement and inspections, obviously on an operational level it is necessary to maintain the existing structures of both jurisdictions to continue with that work.

To maintain consumer confidence and ensure people understand we have existing agencies in place. The setting up of this board is timely because the British Government is bringing forward proposals to change their food safety structures. I am glad to report to the House that the chairperson of the Food Safety Authority of Ireland has informed me that at a recent European conference, the model we have adopted and enacted in the past 12 months is admired by many member states and will be imitated by them—

Why does it not operate all over the island?

—precisely because it is independent and science-based and has an expert science committee reporting to a competent board which is also independently established.

If Deputy Owen is suggesting that it would be in our national interest to dismember what is regarded as an ideal model—

No, I want it to be harmonised.

I am answering the Deputy's question, if she has another one, she can answer it. I am challenging some of the assumptions of her questions. Far from dismembering the existing Food Safety Authority of Ireland—

I never said that.

—a model which will be imitated by our counterparts within the European Union, this board seeks to build on existing levels of co-operation, identifying areas of research and ensuring that airborne surveillance is carried out on an all-island basis. These are all important steps forward in confirming and establishing consumer confidence on a Thirty-two County basis, which is the purpose of setting up these bodies in the first place. They will work hand in hand with existing bodies, in the same way as trade promotion and language bodies will continue to exist on both sides of the Border. These cross-Border bodies have the potential to ensure we look at the resolution of problems, identify gaps on an all-island basis and deal with them as such. That is the remit of all of these bodies and I do not accept they do not meet that.

The inland waterways body has more power.

I agree with the Deputy, we should all be under one flag and have all-island bodies for everything. Unfortunately, that option is not available and these bodies are an interim step.

The remit of the Minister for Arts, Heritage, Gaeltacht and the Islands is wider and goes right down to the Barrow.

We will be going down a destructive road if we start talking about flags.

I am proud of it.

We are all proud of the flag under which we serve in this State. The Agreement on which these bodies are based is an accommodation of different views and I know the Minister accepts and fully supports it.

The point I wish to raise relates to how this body will operate or act on food safety issues, deriving from the relatively new issue of genetic engineering of ingredients in food. I am not one of those people who goes berserk at the thought of genetically modified ingredients. There are benefits to be gained from genetic engineering as there are disadvantages. It does not appear to be addressed in the terms of reference provided to this body in the promotion of food safety. It is important, bearing in mind the need to reassure consumers about the food they are buying, whether in Northern Ireland or the Republic, that stringent conditions are applied to how such modified ingredients are used and that they have been adequately tested.

I welcome the establishment by the Government of a statutorily based Food Safety Authority. The Minister knows the advisory board we put in place was an interim measure and the direction in which the Government went was the direction in which we were going in any event.

Far further.

That is beside the point. We got the same advice as the Government.

That derived from Fianna Fáil in Opposition.

It is not a point about which it is worth falling out.

The Minister is grumpy tonight.

What is important is that this body, which will have some responsibility for the promotion of safety, is seen to have genetic engineering of food ingredients as part of its remit. This will become an issue of increasing importance for consumers and we will debate it in a week or two. It is important that we look at whether we need to give this body a specific remit in that regard.

The safety of genetically modified foods is a matter of science and is provided for by the Food Safety Authority of Ireland and its Northern Irish counterpart. If this new board feels there is a gap in the research of food constituent bodies which have responsibility for this area, it can deal with that. None of us would encourage duplication of effort. This body, once it meets, will be served by an advisory committee which will include scientific expertise, as applies to the NSAI at present. Independent verification of all these issues for the purposes of promoting consumer confidence is, of course, a primary purpose for the NSAI in this jurisdiction and is also a primary reason for bringing in this cross-Border body on food safety issues.

As it is now 9 p.m. the Chair must intervene.

I submit that, without pre-empting how this will work, it will certainly not be precluded from its considerations.

The Minister for Foreign Affairs, briefly.

I appreciate that. In advance of my concluding remarks, may I bring to the attention of the House a small drafting amendment. As section 1(1) has a lower case "the" for "the British-Irish Agreement Bill", the word "The" should be removed from the Title.

Is that agreed? Agreed.

As it is now 9 p.m., I am required to put the following Question in accordance with an Order of the Dáil of this day:

That amendments 1 to 11, inclusive, set down for Committee Stage and not disposed of are hereby made to the Bill; in respect of each of the sections undisposed of, the section or, as appropriate, the section, as amended, is hereby agreed to in Committee; the Schedule and Title are agreed to in Committee; the Bill, as amended, is accordingly reported to the House; amendments 1 and 2 set down for Fourth Stage and not disposed of are hereby made to the Bill; Fourth Stage is hereby completed; and the Bill is hereby passed.

Is the question agreed?

On a point of order, two Report Stage amendments are referred to, but I have a list with amendment No. 3 on it.

That has been already dealt with.

Can I thank the Minister—

Question put and agreed to.

The Bill will be sent to the Seanad.

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