I move amendment No. 1:
In page 8, to delete all words from and including "or" in line 33, down to and including "(b).” in line 35.
Vol. 540 No. 2
I move amendment No. 1:
In page 8, to delete all words from and including "or" in line 33, down to and including "(b).” in line 35.
As I said on Committee Stage, the Deputy's thinking on this amendment is understood. However, I have received legal advice that the proposed amendment adds nothing to the specific provision and that it would be better to retain the provision as originally drafted. Therefore, I do not propose to accept the amendment.
Amendments Nos. 2 and 4 are related and may be discussed together.
I move amendment No. 2:
In page 11, to delete lines 17 to 23.
As on Committee Stage, I intend to deal with the proposed amendments together as they relate to the same issue.
These sections provide that investigations or inquiries into accidents which occur in the workplace, or involving marine related activities at adventure centres, can only be undertaken by the authority where the consent of the Minister for the Marine and Natural Resources is obtained, together with the consent of any other Minister as he or she considers appropriate. This is to ensure that while the authority may conduct such investigations, there will be no duplication of work with the National Authority for Occupational Safety and Health, commonly known as the Health and Safety Authority, or the Marine Casualty Investigation Board.
I am sure Deputies will agree that these bodies would be considered to be the most competent professional authorities in carrying out such investigations. However, where it is agreed that the Adventure Activities Standards Authority can play a role in such investigations, the authority will be empowered to do so. Therefore, I cannot accept the amendments.
The subsection will severely limit the power to investigate many marine activities. While I understand the Minister of State's view on the matter – I know he has taken advice on it – my advice does not coincide with the advice he conveyed to me on Committee Stage. I need more of an explanation than he has just given.
The authority I mentioned is very competent; it is probably the most competent and ideal vehicle to use. I understand what the Deputy is saying but he will probably accept that my explanation is the correct way to proceed. I am quite satisfied it is the competent authority. I do not believe in duplication nor I am sure does the Deputy. We all want to do what is right but I am certain the competency lies with the authority I mentioned.
I understand the Minister of State's reply and I presume he had another look at the issue. Even though his advice does not coincide with mine, we will agree to disagree. Given that his reply is consistent with his reply on Committee Stage, I will withdraw my amendment on the basis that it is on the record that we agree to disagree in regard to his advice and my advice.
I move amendment No. 3:
In page 12, line 37, after "oath" to insert "or affirmation".
As I said on Committee Stage, I have been advised that the additional requirement of an affirmation as proposed by Deputy Bell is not necessary as the administration of an oath by a tribunal of inquiry is sufficient for the purposes of the Bill. Consequently, I do not intend to accept the amendment.
The amendment is a standard provision that appears in most legislation. When this amendment was tabled on Committee Stage, the Minister of State sought legal advice which stated that the provision was unnecessary and he stated that he is satisfied with the advice he received. However, the advice I received since Committee Stage differs from the Minister of State's advice and I state that for future reference. The Minister of State has again stated that he is satisfied with his advice. We must agree to differ on the matter.
I move amendment No. 5:
In page 13, to delete lines 43 to 52 and in page 14, to delete lines 1 and 2.
This amendment seeks the deletion of section 20, which would introduce a charge for the services that will be provided by the proposed adventure activities standards authority. I was not convinced by the Minister of State's comments on Committee Stage on this matter and I refer him to the report of the interdepartmental working group in June 1999. The group made it clear that a large proportion of the enterprises in this sector are well run and have proper regard for the safety of people who use their services. They are involved in what might be called sector or activity associations that seek to lay down standards for their members.
The action being taken in the Bill, with which I and Deputy Bell agree, was recommended to cover cases where one cannot be sure that level of professional probity is applied by people in the sector. In terms of its effect on the quality of activities in the sector, it will make a material difference to a minority rather than a majority. We could regard the Bill and the establishment of the authority as largely a prudential measure. I realise there are other concerns and the section refers to the fact that it is envisaged that the authority will be involved in education, training and advisory services for people involved in the provision of adventure activities. This is welcome. The Bill also contains a provision that envisages that the authority will be involved in the overall promotion of these types of activities. I have some doubts in that regard, but they are not strong enough to be the basis of an amendment.
The Bill is a prudential measure in the interest of public health and safety. To all intents and purposes, apart from the establishment of statute law, the Bill will be redundant for a majority of the operators in the sector because the companies and associations concerned already observe high standards, fixed by their own professional or sector bodies. As the State will be involved in this type of back stop measure, section 20 provides for the possibility of imposing a new charge on people for doing what they already do and this is unfair. The Minister of State said on Committee Stage that he considered this authority analogous to the Health and Safety Authority. If I interpreted the Minister of State correctly on Committee Stage, its legislation contains a provision for making charges for services it supplies for which it had not charged previously.
The Health and Safety Authority has a right by statute to make a charge for the services it provides to employers and in the interest of public safety all over the country. However, so far, either the Health and Safety Authority itself or the competent Ministers, or both, have judged such charges unwise, inopportune or unnecessary. The Health and Safety Authority is involved in a much wider range of activities than the proposed authority will be, but, so far, it has decided not to make a charge.
The annual running costs of the proposed authority are estimated by the Minister of State, as set out in the explanatory memorandum, at approximately £300,000 a year. This is not a very large sum, even for a Government whose predicted surplus for the year has been reduced by up to £0.5 billion. That is another day's work, although it is a big error to make. Nevertheless, it does not concern us directly in this debate.
The sum of £300,000 a year for the cost of running this authority is a small amount in overall Exchequer terms, but it could be a substantial sum for individual operators in the sector. As it would constitute the possibility of a charge on a majority of operators for doing what they already do in observing the type of standards envisaged, it is unfair, unwise and unwarranted. This is why I propose the deletion of the section.
I thought Deputy Dukes was about to challenge me to a debate on the country's financial affairs, but that is for another day.
I am much too orderly to do that, although I would enjoy such a debate.
Yes. I am sure the Deputy would have liked that portfolio and that he would have done well in it as he is doing in this portfolio.
With God's help, I might be back there soon.
I understand the Deputy's reasons for the amendment, which he outlined in detail on Committee Stage. I noted in detail the concerns expressed by other Deputies on Second Stage in relation to the proposed authority being allowed to make charges for the provision of its services. However, little of what I have heard today would encourage me to change my mind. I point out that the provisions of the Bill in this regard are entirely similar to those contained in the Safety, Health and Welfare at Work Act, 1989, which allows the Health and Safety Authority to make such charges as it considers appropriate or necessary.
By including such an enabling provision in the Bill, the intention is that any charges made by the new authority would be designed to offset administration costs and would not be so prohibitive as to discourage operators from registering with the authority, thereby providing services possibly to young people outside the safeguards of the law. That would be most unwise in itself. The reason for the Bill's introduction should be enough to discourage anybody from going outside the safeguards of the law.
However, I accept the point made by some Deputies that the Health and Safety Authority does not at present charge for its services. Deputy Dukes referred to this aspect. I can repeat the assurance given to the Deputies on Committee Stage that this principle, and their views on the matter will be considered when the new authority is established and the question of invoking such charges is being addressed in consultation with my Department.
This is an enabling provision. There is no commitment at this stage that there will be charges. This will be considered when the authority is set up. There may be no charges. It is also possible that charges would be set at a particularly low level. It is important to have this provision in the Bill and, consequently, I do not propose to withdraw the section.
I think the Minister of State would, privately, agree with me that the Health and Safety Authority does not impose a charge because it knows there would be widespread objection from trade unions and employers to the imposition of any charge. Although there is an enabling provision in the Safety, Health and Wel fare at Work Act, it will remain a dead letter because there would be a storm of protest if a charge were introduced.
The Minister of State talks about the possibility of the charge being a low one on reputable operators in the business, but then he says it would act as a measure to discourage people from operating outside the law. Either the charge will be high enough to discourage people from operating outside the law and therefore a burden on people operating within the law or it will not be a burden and equally not a discouragement. The Minister of State cannot have it both ways.
This does not seem to have been a consideration for the Health and Safety Authority. There are employers who operate outside the terms of the Safety, Health and Welfare at Work Act – cases come before the courts from time to time – but the Health and Safety Authority has not proposed the imposition of a charge to discourage those people, although it has a statutory right to do so. The Minister of State's logic is flawed.
It would be far more in keeping with what the Minister of State says is his position if he were to agree with my amendments and take the provision for imposing a charge out of the Bill. Should it ever appear to him or to one of his successors that there was a case for making a charge he or she could do so by way of an addition to the Bill when it has been enacted, rather than have the provision in the Bill as it is now, hanging over us like the sword of Damocles.
It appears that Deputy Dukes agrees with me. He says it may one day be necessary to have such a charge.
I said if the Minister of State or one of his successors felt a charge was needed he could make an addition to the legislation.
I have the foresight to insert the measure in the Bill in case that eventuality should arise. I thank Deputy Dukes for agreeing with me.
I do not agree with the Minister of State. He is wriggling and because of that I know he agrees with me.
Do I look as if I agree with Deputy Dukes?
I see no reason or justification for such a charge and I see no equity in the provision. The Minister of State should take the provision out of the Bill on the basis that if he or any of his successors feel the need for such a charge they could bring the matter to the Oireachtas and justify it.
Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, David.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.
Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John J.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Reynolds, Albert.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.
Allen, Bernard.Barnes, Monica.Bell, Michael.Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, John.Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Farrelly, John.Finucane, Michael.Fitzgerald, Frances.Gilmore, Éamon.Hayes, Brian.
Hayes, Tom.Higgins, Joe.Higgins, Michael.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Penrose, William.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Timmins, Billy.Upton, Mary.Wall, Jack.
Amendments Nos. 6 and 7 are related and may be discussed together by agreement.
I move amendment No. 6:
In page 14, lines 17 and 18, to delete "and may be removed from office at any time".
Amendment No. 6 proposes the deletion from the Bill of what seems to me an absolutely extraordinary provision. I propose to delete the provision that the director may be removed from office at any time by the authority with the consent of the Minister. There is no provision for the conditions under which this might be done. It is not stated that the director can be removed from office for stated misbehaviour or for stated reasons or for any of the reasons that are normally given.
As I said on Committee Stage the provision is made even more odd by the fact that subsection (3) provides that the director shall hold office under a contract of service in writing. Subsection (3) states:
The Director shall hold office under a contract of service in writing containing such terms and conditions . . . as may be approved of by the Minister with the consent of the Minister for Finance.
It seems to me that if a contract in writing for the employment of a director is worth anything, it should certainly lay down what the authority requires of the director, what kind of performance is required of him and what kind of sanctions are to be envisaged if that director does not live up to those terms. It is in a contract of employment that provision should be made for the conditions under which the person, who is the subject of the contract, may be removed from office. The Minister of State can speak until he is blue in the face and tell me about precedents for this provision in other legislation but he admitted on Committee Stage that there is no precedent for a director having been removed from office under a similar provision without a reason being given. I take the view that the provision in section 21(5) is oppressive, unjust, unnecessary and should be deplored. For that reason I propose its deletion. There are two places in the Bill where this occurs – that is the reason amendments Nos. 6 and 7 are being debated together. There are two other places where there is a similar provision allowing for the removal from office of any member of the authority. For that reason I have tabled amendments Nos. 10 and 11.
I see no reason for making this kind of provision. If it is in previous legislation it is an outrage. If provision is to be made to fire the director of an authority such as this and eventually to fire any member of the authority it should be on the basis of reasons that are clear and fair and that will not give rise to unnecessary litigation. If this provision were ever to be used there would be an immediate danger of litigation because it is so uncertain. The reasons that may be used as a justification for this are completely unknowable because this is a totally arbitrary provision. For that reason I propose its deletion.
As I said on Committee Stage I agree with Deputy Dukes. I pointed out during that debate that I was of the opinion that this subsection was contrary to the Unfair Dismissals Act and that it would open up a serious case in relation to the rights of workers and would create a serious precedent. I had hoped the Minister would have a look at it. I would have grave reservations as to whether it contravenes the Unfair Dismissals Act. I support the points made by Deputy Dukes.
I intend to deal with the two proposed amendments together as they concern the same issue. As I explained on Committee Stage these are standard enabling provisions which reflect provisions in other similar legislation. This section is similar to section 18 of the Safety, Health and Welfare at Work Act, 1989, which provides for the appointment of the director general to the National Authority for Occupational Safety and Health – the National Health Authority – and to section 7 of the Marine Institute Act, 1991, which provides for the appointment of the chief executive officer to the Marine Institute.
In 1989 Deputy Dukes was the Leader of the Fine Gael Party and was party to the Tallaght strategy which supported the Government. He helped to put the country on its present footing and I acknowledge that. It is possible that he voted for that Act. What has changed in the meantime apart from the fact that his colleagues thought he was not doing a good job, though I thought he did an excellent job?
Does the Minister mean the provision is not—
Is the Deputy trying to get back? Does he think Deputy Noonan will lose his job and that there may be a vacancy again? Irrespective of what has caused him to change his mind, he must put these points. He has done so very well. I checked to see if there was any validity in what he said. There is some validity but not sufficient validity to change my mind. I hope this provision will not be invoked. Nevertheless I am advised that such provision is necessary to deal with possible extreme circumstances which would necessitate the removal of directors from the authority. I hope it will not happen but it is possible and one has to accept that. I would not like to see a situation where a director could refuse to step down and there would be no effective way of removing that person from the authority. As this will be a body with primary responsibility for regulating safety in the sector such a situation would severely impact on the credibility of the authority. As the Deputy's amendment would effectively mean that the Minister would be prevented from taking reasonable and responsible action in the event of such a situation occurring, I do not propose to accept the amendments. Removal would only happen in extreme circum stances. The legal advice is that the provision should remain as an enabling provision.
I do not begrudge the Minister of State for a moment the opportunity to amuse himself with the relevant considerations about what one was up to in 1989.
I thought the Deputy would thank me for the compliment because his own party did not appreciate him; instead it kicked him out.
If I was waiting for the Minister of State to pay me a compliment I would be long dead before I would ever get one. Leaving those considerations aside I am not happy to find that in 1989 a provision like this escaped the scrutiny of the House and that in 1991 a provision like this got through the House without being objected to. We have 12 years experience of the operation of the Safety, Health and Welfare at Work Act, 1989, without ever having encountered extreme conditions that would give rise to the triggering of the provision in that Act. We have had ten years experience of the operation of the Marine Institute Act, 1991, without there having been circumstances in which this kind of provision in that Act was triggered. I cannot see why the Minister requires an instrument of this kind.
The previous subsection in this section provides for a contract of service for the director. Any contract of service worth its salt would deal with the circumstances under which a person may be removed from office. If it does not, then the person who drew it up should be fired. The Minister is acting, on bureaucratic advice, in an approach which I can only describe as using belt, braces, safety pin and a piece of twine as well. It is a completely unnecessary and excessively oppressive provision. The fact that it has never been used is an indication of its value. I urge the Minister of State to remove it from the Bill.
I hope the director will not suffer the same fate as the chairman of the Saville commission and that he will have a longer stay at the helm. In relation to the contract of service, I assume no director will take the job unless he or she is absolutely certain they know where they stand and on what grounds they can be fired. In any court of law, a dismissal from employment would not stand up without the reasons for that course of action being given. Under this legislation, it is difficult to see anybody wanting the job of director without knowing what is in the contract of service.
Good legislation will stand the test of time, as similar legislation has done and good law leaves no loophole. The only argument against this provision is that we are over-cautious.
There is little point in having redundant legislation which is never used.
I take the view that we should leave no loophole in the legislation which we are passing today.
I move amendment No. 8:
In page 18, line 15, to delete "A" and substitute "Save in accordance with law, a".
Legal advice which has been received states that the additional wording proposed by Deputy Bell is not necessary and adds nothing of substance to the Bill. Accordingly, I do not propose to accept the amendment.
I got the same reply on Committee Stage. My proposal allows for disclosure in accordance with the law. For example, in relation to the Freedom of Information Act, my wording which has been taken from existing legislation and on which I have taken further advice since Committee Stage, is a standard legislative provision. I am disappointed the Minister of State has not accepted the amendment. However, if he is satisfied and on the basis that my views are recorded, I withdraw the amendment.
The Minister of State's position on this amendment contrasted with his position on amendments Nos. 6 and 7. This clearly indicates that, on both amendments, his position is inspired by pure bloody minded bureaucracy. If he really wants legislation without a loophole, as he said on the last amendment, he should accept Deputy Bell's amendment.
I move amendment No. 9:
In page 18, line 43, to delete "carry on an adventure activity" and substitute "act as an adventure activities operator".
Here again we have a repeat performance of the position on Committee Stage. Having had further discussion on this, it is my opinion that, in this regard, the Bill has a very serious flaw. Section 33(7), as it stands, makes it an offence for an individual to go hill walking without a licence – and I ask the Minister of State to note this – punishable by two years in jail. Clearly, this should apply to the operator, not the hill walker. I appeal to the Minister of State to listen to what I have said about this very serious flaw in the Bill. I urge him to accept the amendment. Otherwise, he may be left with a Bill containing a very serious legal flaw. I took a lot of time, effort and discussion on this. I hope he will accept the amendment.
I take on board what Deputy Bell has said. We also had long discussions on it. In light of the very strong case which was well articulated here this evening, I am prepared to accept the amendment.
I thank the Minister of State. It is nice to see him taking my advice now and then.
Amendment No. 10 is in the name of Deputy Dukes. Amendment No. 11 is related and both amendments may be discussed together, by agreement.
I move amendment No. 10:
In page 22, to delete lines 45 and 46.
Amendment No. 10 deals with the provision under which the Minister may remove the chairperson of the board from office at any time. Amendment No. 11 deals with a similar provision that the Minister may remove an ordinary member of the authority from office at any time. I remind the Minister of State that ordinary members of the authority, from among whom I understand the chairperson will be appointed, are proposed to be appointed after consultation with various other persons or bodies, including the Minister for Tourism, Sport and Recreation, the Minister for Education and Science, a member of the staff of the National Authority for Occupational Safety and Health, national governing bodies for adventure activities, a representative of the staff of adventure activities operators and persons having such knowledge, skills or experience as the Minister considers appropriate. All that consultation will have taken place before the members of the authority are appointed and before they, in turn, elect a chairperson, if I understand the procedure correctly.
I cannot see the point of going through the rigmarole of consultation if the Minister can turn around on a whim and simply fire the chairperson and any member of the authority. In normal circumstances people are appointed to such authorities for a term of office, and unless something goes badly wrong with the operation, they remain in office for that period. If the Minister believes there are circumstances in which the chairperson or members of the authority would so misbehave themselves as to merit dismissal, then he should provide for that in the Bill. To provide for a completely arbitrary power for the Minister is unnecessary, very unwise and should be avoided if possible. I see no reason this provision has to be made. Under it the Minister can at any time dismiss the chairperson and any member of the authority. On a whim the Minister could decide he or she did not like the authority and fire everybody on it. Under another provision in the Bill the Minister could also fire the director. This is an extraordinary power to give the Minister and totally unwarranted. The Minister should take his courage and imagination in his hands and accept the amendments on the basis these powers are entirely unnecessary.
Deputy Dukes is behaving as if we live in a perfect society.
I know I do not when I look across at the Minister of State.
I would like to think that we do and that any appointment made would be forever. However, the Deputy knows as well as I do that that might not be the case. Any appointments made by this side of the House would probably stand the test of time.
This is a standard provision in legislation of this type, and while I hope it will never have to be invoked, circumstances might arise where it would be necessary to remove the chairperson or an ordinary member from office, particularly if the chairperson or ordinary member would not step down willingly. It would not be appropriate for the Minister to be unable to act in such circumstances, as would be the case if the proposed amendments were accepted. Consequently, I do not propose accepting the amendment.
I move amendment No. 12:
In page 24, line 25, after "imprisonment" to insert "of over 6 months".
I am sure the Minister of State will be sympathetic to this amendment on which I did some research since speaking on the issue on Committee Stage. A Deputy can only be sacked if he serves six months in jail. The Bill proposes that a member be eliminated from the authority if he is imprisoned for one day. Surely, if we, as Deputies, can spend up to six months in jail before being eliminated from the Dáil, a member of an authority, be it this or another authority, should not be eliminated from membership for spending a day in Mountjoy, for what may be a technical matter. It is reasonable that members of such groups should have at least the same facility as Members of the Oireachtas. I ask the Minister of State to accept the amendment.
As it is now 5.15 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That Fourth Stage is hereby completed and the Bill is hereby passed."
Can I take it amendment No. 12 has been accepted?
It is not accepted.
Amendment put and declared lost. Bill reported with amendment, received for final consideration and passed.