I welcome the Minister of State, Deputy Naughton, who is an alumnus of this House. We are resuming on amendment No. 3. Hopefully we will make some progress on this beautiful sunny morning. The Leader of the House was in possession. Does she wish to continue?
Air Navigation and Transport Bill 2020: Committee Stage (Resumed)
NEW SECTIONS
Debate resumed on amendment No. 3:
"Amendment of Act of 1993 - Crew Peer Support Programmes
59. The Act of 1993 is amended by the insertion of the following section after section 14:
"Crew Peer Support Programme
14C. (1) The Irish Aviation Authority shall periodically review the crew peer support programmes provided by the holders of air carrier licences or otherwise made available by them to crew pursuant to the requirements of CAT.GEN.MPA. 215 to Annex IV (Part – CAT) of Regulation (EU) No. 965/2012.
(2) A comprehensive review of each such support programme shall be conducted by the Irish Aviation Authority at least every three years and no more frequently than at one-year intervals, in respect of which it shall consider the following:
(a) the nature of the programme having regard to the size and diversity
of the air carrier in question;
(b) the ability of the programme to provide access to the requisite
range of expert supports;
(c) the accessibility of such a programme including encouragement as to its use and the freedom of crew to access an alternative crew peer support programme to meet their personal needs;
(d) the adequacy of confidentiality arrangements;
(e) the involvement of crew representatives and recognised stakeholder groups in establishing and supporting the programme;
(f) the selection and training of peers, and their independence from any conflicting management or supervisory functions within the Air Operator’s Certificate holder or otherwise;
(g) the provision of adequate resources to the programme;
(h) the provision of mental health professionals to support peers when required by programme users; and
(i) the accessibility of programmes services and support by online and other electronic means.
(3) In conducting these comprehensive reviews, the Irish Aviation Authority shall seek feedback from users of the programme to the maximum extent feasible, consistent with maintaining strict confidentiality concerning the identity of crew and their personal circumstances.
(4) In the event of any deficiency in a crew peer support programme being found during a comprehensive review, the Irish Aviation Authority may direct changes to any such programme, which shall be binding. That shall be without prejudice to the ability to the Irish Aviation Authority’s power to direct changes in respect of deficiencies other than those identified during a periodic comprehensive review.
(5) The Irish Aviation Authority shall convene the Crew Peer Support National Forum which shall include representatives of:
(a) the air carriers that it regulates and any persons engaged in the provision of support services to them or on their behalf;
(b) pilot associations and other recognised stakeholder groups and any persons from those associations engaged in the provision of support services to them or on their behalf; and
(c) the Medical Assessor.
(6) The Minister for Transport shall appoint a chairman of the Crew Support National Forum.
(7) The Crew Peer Support National Forum, which shall receive secretariat services from the Irish Aviation Authority, has the following functions:
(a) the sharing of best practice on crew peer support programmes;
(b) encouraging the implementation of cooperation and joint resource sharing between different crew peer support programmes;
(c) the development of a common (anonymised) data base to identify
trends and to monitor the effectiveness of crew peer support programmes;
(d) approve and monitor the content and delivery of Peer Support training programmes;
(e) making recommendations to the Irish Aviation Authority as to the requirements of crew peer support programmes, and
(f) creating or encouraging the provision of a national crew peer support programme under a separate structure, whether through cooperation between programmes, or by other means, and to be accessible—
(i) by all crew irrespective of their employer,
(ii) by crew not willing to use the programme made available by their employer for personal confidentiality or other reasons, and
(iii) to crew who are out of work.".".
- (Senator Regina Doherty)
The reason we adjourned the debate on this Bill a number of weeks ago was to allow clarification of a point of order that was raised. I believe the Minister of State sought legal advice, as did Members. Can we have a conversation about the legal advice before we dispose of amendment No. 3?
My understanding is that the legal advice is from the Attorney General and that all is in order to continue.
Would it be possible for the Minister of State to say that on the record? I would then like the opportunity, on behalf of the Members who sought their own legal advice, to put that legal advice on the record.
With respect, the Attorney General's advice, as it is the national law, will trump the Senators' legal advice.
Those are the exact words the Minister of State said to me last week. To be very fair, the record of this House is very important to all the people here.
Absolutely. I call the Minister of State.
I have consulted the Attorney General on the issues raised by Senators. He is satisfied that no conflict of interest or breach of trust arises.
Does Senator Doherty wish to continue?
I thank the Chair. When we adjourned a number of weeks ago, the Minister of State and the Members of the House said that they intended to seek legal advice. I would like to put our legal advice on the record so that we can then proceed, if that is okay.
It reads:
1. These advices are furnished in urgent circumstances described below ....
2. Counsel is instructed with the following facts.
3. Querist is a branch of Fórsa trade union representing Airline Pilots ... [We all know them as Irish Air Line Pilots Association, IALPA]
4. The Bill provides for the formation of a company to be known as the Irish Air Navigation Service and for the transfer of certain commercial functions from the Irish Aviation Authority to the new company, and for the transfer of regulatory functions of the Commission for Aviation Regulation to the Irish Aviation Authority and the dissolution of the Commission for Aviation Regulation. The Bill also provides for amendments to the Irish Aviation Authority Act 1993. These include measures under Council Regulation 2018/1139 (on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency) known as the EASA Basic Regulation.
5. Counsel is instructed that certain provisions of the Bill (including those which implement the EASA Basic Regulation) arise out of report into an air traffic accident involving the search and rescue service of the Irish Coast Guard, the Air Accident Investigation Unit R116 Report, published in or about November 2021. In that context, counsel is instructed that the report records the admitted lack of technical expertise within the Department of Transport.
6. The Bill is a Government Bill which was initiated in Dáil Éireann on 4 December 2020. The second stage ... was completed on 4 February 2021. The third stage... was initiated on 4 February 2021 and completed on 17 June 2021. It is to be noted that at this stage the Bill was considered by a Dáil Committee, i.e. the Select Committee on Transport and Communications, the members of whom are all Members of Dáil Éireann. The fourth stage... was completed on 7 July 2021. The fifth stage [was taken on that same day] ... as follows: "Bill received for final consideration and passed".
7. The Bill was deemed to have passed the Seanad first stage and the second stage ... on 28 September 2021. The Bill was then sent to the third, or committee, stage which was commenced on 5 October 2021. The Seanad committee stage is still under way.
8. Counsel is instructed that, to date, neither House has obtained independent technical advice on the Bill.
9. Counsel has been supplied with a letter dated 28 June 2022 from Querist to the Minister for Transport. The letter raises the lack of technical expertise within the Department of Transport and raises the concern that in preparing the Bill the Department of Transport relied upon the technical expertise of the Irish Aviation Authority notwithstanding the fact that the Bill is intended to regulate the Authority.
10. On 29 June 2022 the Minister for Transport attended before the Seanad when this issue was debated. I have had the opportunity to read the transcript. It is my understanding from the transcript that there is no member of staff within the Department with such technical expertise but that the Department commissions such advice from time to time. It appears that the Department did not commission such advice in the preparation of this Bill but that it relied upon the technical expertise of the Irish Aviation Authority in the preparation of this Bill notwithstanding the fact that the Bill is intended to regulate the Authority.
11. Counsel is asked to advise on whether any legal concerns arise in this regard and, if so, what steps may be taken in this regard.
The legal concerns that have arisen as stated by counsel are as follows:
12. Council Regulation 2018/1139 (on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency) known as the EASA Basic Regulation includes the following provisions which are relevant for current purposes.
13. Article 2.6 allows a member state to 'opt in' to certain provisions of the Regulation to certain activities and the personnel and organisations involved in those activities.
14. Crucially for current purposes, Article 4 provides that certain principles shall be observed by the Commission, the Agency and Member States when taking measures under the Regulation, including (a) reflect the state of the art and best practices in the field of aviation, and take into account worldwide aviation experience and scientific and technical progress in the respective fields; [and] (b) build on the best available evidence and analysis.
15. Article 7 requires each Member State, in consultation with relevant stakeholders, to establish and maintain a State safety programme for the management of civil aviation safety in relation to the aviation activities under its responsibility ...
16. Article 8 requires the State Safety Programme to include or be accompanied by a State Plan for Aviation Safety in which, based on the assessment of relevant safety information, each Member State, in consultation with relevant stakeholders, shall identify in that plan the main safety risks affecting its national civil aviation safety system and shall set out the necessary actions to mitigate those risks.
17. Section 67 of the Bill, as amended in the Select Committee on Transport and Communication of Dail Eireann, provides for the insertion of the following provision in the Irish Aviation Authority Act 1992:
"32A. (1) The company shall, not later than 30 April in each year commencing from 2022, prepare and submit to the Minister a statement relating to its performance in regulating aviation safety (in this section called an ‘aviation safety performance statement’).
(2) An aviation safety performance statement shall be in 2 parts as follows:
(a) details, including the aims and objectives, of regulatory activity planned for the current year (in this subsection called a ‘regulatory performance plan’);
(b) a review of the company’s regulatory performance during the preceding year having regard to the regulatory performance plan for that year and any other relevant matters.
(3) The review of the company’s regulatory performance required by subsection (2)(b) shall include details of the activities carried out during the relevant year and the outcome and follow up from external oversight in relation to—
(a) the European Aviation Safety Programme referred to in Article 5 of the EASA Basic Regulation,
(b) the safety programme established and maintained by the State pursuant to Article 7 of the EASA Basic Regulation,
(c) the State Plan for Aviation Safety prepared pursuant to Article 8 of the EASA Basic Regulation,
(d) the annual review of aviation safety performance in the State prepared by the company, and
(e) the Universal Safety Oversight Audit Programme of the International Civil Aviation Organization.
(4) An aviation safety performance statement shall be in the form, and relate to the matters, that the Minister directs.
(5) The Minister shall, within one month after receiving an aviation safety performance statement, lay it before each House of the Oireachtas.
(6) In this section, ‘EASA Basic Regulation’ means Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 20181 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.".
18. Section 76 of the Bill provides for the insertion of the following section into the 1993 Act:
"69A. (1)The Minister may make regulations for the purpose of exercising the opt-in provisions of Article 2.6 of the EASA Basic Regulation to give effect to certain provisions of the EASA Basic Regulation relating to the regulation of aviation activities by aircraft (including related engines, propellers, parts, non-installed equipment and equipment to control aircraft remotely) while carrying out search and rescue, firefighting, coastguard or similar activities or services under the control and responsibility of the State, undertaken in the public interest by or on behalf of the Irish Coast Guard and the personnel and organisations involved in the activities and services performed by those aircraft.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) make provision in relation to all or any aspect of (including any combination of) the matters set out in sections I, II, III and VII of Chapter III of the EASA Basic Regulation as may be specified in the regulations,
(b) apply either generally or to such class of persons or activities or services as may be specified in the regulations,
and
(c) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act, the European Communities Act 1972 and the European Communities Act 2007).
(3) When making regulations under subsection (1), the Minister shall have regard to the following:
(a) the aim to strengthen the national aviation safety regulatory framework for aviation activities of the Irish Coast Guard and aligning it with European aviation safety regulations;
(b) the need to provide for greater specificity in relation to the regulatory framework of the oversight of aviation activities by and for the Irish Coast Guard;
(c) the need to secure the operation and safety of the aircraft, and persons and property contained therein, operated by or on behalf of the Irish Coast Guard and mitigate the risks pertaining to safety;
(d) the need to allow for immediate reaction to accidents and serious incidents and balance the safety requirements with search and rescue objectives;
(e) the interests and views of the civil aviation sector and the general public;
(f) the interest of international cooperation within the European aviation industry and the promotion of European aviation safety standards;
(g) the need to promote effectiveness in regulatory, certification and oversight processes.
(4) The Minister shall consult with the Irish Coast Guard and the company before he or she makes regulations under this section.
(5) A word or expression which is used in this section and which is also used in the EASA Basic Regulation has, unless the context otherwise requires, the same meaning in this section as it has in the EASA Basic Regulation.
(6) In this section ‘EASA Basic Regulation’ has the meaning assigned to it by section 32A(6).
19. The Standing Orders of Seanad Éireann include the following provisions which are relevant in the circumstances now arising:
"70. (1) The Seanad may appoint a Select Committee to consider any Bill or matter and to report its opinion for the information and assistance of the Seanad and, in the case of a Bill, whether or not it has amended the Bill. Such motion shall specifically state the orders of reference of the Committee, define the powers devolved upon it, fix the number of members to serve on it, state the quorum thereof, and may appoint a date upon which the Committee shall report back to the Seanad."
"72. Unless the Seanad shall otherwise order, a Committee appointed pursuant to these Standing Orders shall have the following powers: . . .
(10) power to—
(a) engage the services of persons with specialist or technical knowledge, to assist it or any of its sub-Committees in considering particular matters; and
(b) undertake travel;
Provided that the powers under this paragraph are subject to such recommendations as may be made by the Working Group of Committee Chairpersons under Standing Order 107(4)(a)."
20. It is to be noted that Standing Orders 94 and 96 of the Standing Orders of Dail Eireann confer the same powers upon Dail Eireann.
21. The Irish Aviation Authority Act 1992 as amended establishes the Irish Aviation Authority. It is to be noted that it provides, at section 14, that the objects of the authority shall include,
"(i) to advise, on its own initiative or at the request of the Minister, the Government, the Minister or another Minister of the Government or any other person in relation to any matter to which a function of the company relates."
22. It appears from the above, under Article 4 of the EASA Basic Regulation, in taking measures under the regulation, Member States are obliged to inter alia reflect the state of the art and best practices in the field of aviation, take into account worldwide aviation experience and scientific and technical progress in the respective fields; and build on the best available evidence and analysis.
23. It is [our legal counsel's] view that sections 67 and 76 of the Bill, if passed into law, will amount to a measure taken under EASA Basic Regulation. It is [our counsel's] view that in passing these sections into law, given the obligation imposed on Member States by Article 4 of the regulation, that it is appropriate that Seanad Éireann should consider whether these provisions reflect the state of the art and best practices in the field of aviation [as set down under EASA regulation 4] and take into account worldwide aviation experience and scientific and technical progress in the respective fields; and build on the best available evidence and analysis.
24. In this regard, the exclusive reliance by the Department of Transport upon the technical expertise supplied by the Irish Aviation Authority and without recourse to its own or independent expertise may well give rise to legitimate concerns that the measures do not satisfy the requirements of Article 4 of the Regulation quoted above.
25. While the Standing Orders of both Houses contemplate that technical advice may be commissioned, neither House has to date [taken] such advice in respect of the Bill.
26. In these circumstances, it seems to me [our legal counsel] that it is appropriate for the Seanad to enquire whether, insofar as the Bill amounts to a measure under the EASA Basic Regulation, it satisfies Article 4 of the EASA Basic Regulation. If, having so inquired, the Seanad is of the view that it may not satisfy that Article, it seems to me [our legal counsel] to be open to the Seanad to invoke its powers under the Standing Orders quoted above to commission independent technical advice in order to so satisfy itself or, indeed, cure any deficiency which may become apparent.
Nothing further occurs at this time.
I thank Senator Doherty.
Are there any other comments on amendment No. 3? Senator Craughwell will not repeat the same legal advice. The Senator may comment.
I do many things but to repeat the same advice would be futile. The advice is very clear. One of the problems we have in dealing with this issue is that nobody in this room is an expert. The only expertise that has been involved in the drafting of this Bill is from the very people the Bill is designed to regulate. Four people lost their lives because of poor regulation, lack of oversight and reckless behaviour. That is the only way it can be described. In light of the legal advice we have received, neither House, at this stage, has had the technical expertise to inform it as to the right way to go with this Bill. I should invoke Standing Order 70, today, to seek a select committee of this House to be established to bring in the expertise to explain to us. We are, after all, none of us aviators. None of us is an expert in this area. The Minister of State is not an expert in this area. It is unfair to see this continually drag on the way it has. The way to resolve this problem is to bring in independent experts. We have all been approached by members of the Irish Air Line Pilots Association, IALPA, which is not independent in this case. When I say independent, I mean independent international experts who will explain to us that this meets the requirements of International Air Transport Association, IATA. If that is the case, let us rock on with the Bill. However, right now, I wish to have it on the record that I am deeply uncomfortable with this Bill. I have made that point since it first came before the House.
I appreciate that the Senator has made his point. We will have to move on.
I am a little bit confused. What is the recommendation from the Attorney General? Was there a conflict of interest? Will the Minister of State clarify that for the information of the House?
The Minister of State had begun to clarify that.
For the purpose of clarity, we should reflect on what the Minister of State said here on 29 June. I will not read out what she said, but I think we are all aware that she read out exactly how she has conducted the application of the drafting of the Bill. On that day, the Minister of State admitted that external advice was only obtained to insert the regulatory functions that the Minister of State was bringing to this Bill and that she relied solely on the Irish Aviation Authority, IAA, with regard to inserting new regulatory functions around peer support, the licenceholders' forum and the licenceholders' charter. I cannot, for the life of me, understand why taking external advice on one set of regulations makes it different from relying on internal expert advice for another regulation. The only conclusion that I come to is that the Minister of State took external advice on her own new regulations, because she knew she had to work under Article 4 of the European Aviation Safety Agency, EASA, regulation, but saw the Opposition amendments, which there were at the beginning of this Bill and which we have been debating since last July, as something that she was never going to entertain and, therefore, on which she did not need to obtain external advice.
I ask that we let the Minister of State respond.
I am not finished. The legal advice that IALPA has obtained for the Seanad Members clearly states that Article 4 provides for certain principles to be observed by member states and their agencies. I do not see how we have upheld that article to that end. I disagree with my colleague, Senator Craughwell, about invoking Standing Order 70. That is probably premature. What I have done, however, off my own back and, I hope, with the co-operation of colleagues here is that I have written to Commissioner Adina Vlean, who is the Commissioner for Transport in the EU, to seek her views as to whether we are living up to the standards that are expected in Article 4 of the European Commission regulations. I do not suppose that we will get a response for a few days, at very best, and given that we have an awful lot to debate, I do not intend to hold up the Committee Stage any longer, other than to say the following.
Both inside and outside of this House, I have been accused, in taking the actions that I have during the course of the debate on this Bill, of vote seeking because I am in a new constituency. Every pilot in the country apparently lives in Swords and Skerries. For the record, the licenceholders in my family live in County Wicklow and County Meath. My only interest in this Bill is in trying to make flying safer for the people who operate aircraft, the licenceholders in this country, the pilots and all of the people who make sure that our aircraft are safe. I want to make sure our aircraft are safe for the people like me, you, and everybody else in this room, who just use planes to go on our holidays, meet our family or for work.
I do not think I need to remind people that in the early hours of 14 March 2017, Coastguard Rescue 116 crashed into the sea in County Mayo. All of the four crew members on board that night passed away; Ms Dara Fitzpatrick, Mr. Mark Duffy, Mr. Paul Ormsby and Mr. Ciarán Smith, whose family live up the road from where I live. I cannot even begin to imagine the hurt and the grief that Mr. Smith's family have been feeling and suffering for the past five years and will feel for the rest of their lives. The centre of their gravity was taken away from them that night. Parents lost a son; a wife lost her husband and best friend and those children lost their family. While the accident absolutely did not happen on the watch of this Government or Minister of State, the recommendations arising from that accident and the responses to those recommendations are on their watch.
Recommendation 2021029 basically said that the Department of Transport needed to review its in-house expertise to ensure it had the technical necessary capabilities to intelligently oversee all activities relating to search and rescue. On 1 February this year, the Minister replied to say that the Department would review the availability of in-house expertise to ensure that it retained necessary technical capabilities to intelligently oversee. The comment of the air accident investigation unit, AAIU, to that was that it noted the Minister's response and it noted that the recommendation was still in the process of implementation, five years after four people lost their lives. That recommendation is still in the process of being implemented.
Recommendation 2021031 stated "the Minister for the Transport should ensure that the Department has ... [specific] specialist aviation expertise", to ensure it can "discharge [its] effective oversight ... [with a] full range of IAA activities". The response from the Minister was that he wished to say that the recommendation was accepted and that the Department had contracted aviation expertise available to it. I will not even go through the rest of it.
This is still in progress. We still do not have aviation expertise in the Department. What we have is periodical availability to the Minister. The AAIU notes the Minister's response and it notes that the recommendation is still in the process of being implemented. Five years later and four lives lost, we are still processing the recommendations of a damning report into the loss of life of people who work on behalf of this State.
I thank Senator Doherty.
I am not finished. We had an accident a number of years ago, Germanwings Flight 9525, which gave rise to the conversation and the EASA regulations that we now enjoy throughout the European Union. It was an Airbus A320 that crashed into the Alps in Nice. The 144 people on that plane all lost their lives that night. Six crew members were on that plane and they are all dead. The crash was deliberately caused by the co-pilot, who had been previously treated for suicidal tendencies and declared unfit for work by his doctor. He kept this information from his employer, because he was afraid, and, instead, he reported for duty. Shortly after reaching the cruise altitude, when the captain was out of the cockpit, he locked the door and initiated a controlled descent that continued until the aircraft collided with the mountain. I cannot even begin to imagine the effect on the families of those crew members and all of the people who lost their lives. That was a tragedy of enormous proportions, which happened because he did not trust his employers enough to tell them of his condition and ask for help.
Something very similar has been expressed in Ireland about the lack of trust in the peer support programmes that are currently being operated. The uniformity of and trust in peer support programmes are absolutely fundamental and essential to ensuring that not one of our pilots ever feels that they cannot ask for help. We have heard from Irish pilots at the Oireachtas Joint Committee on Transport and Communications that much-needed trust does not exist in today's peer support programmes. That is why it is essential that we put peer support on a legislative footing.
That is what we are resisting here. We are resisting amendments that try to make aviation safer for the licence holders and all the passengers who put their lives in the hands of pilots every day.
I wanted to be fair to the Leader of the House. We took the legal advice and her commentary on board and-----
Amendment No. 3 is on peer support.
I have two comments to make. No one would impugn her personal integrity, which is above reproach, regarding the comments made. I appreciate that she will not hold up Committee Stage, but I would appreciate if she could let the Minister of State respond.
I will finish on this point. We are debating amendment No. 3 and peer support, which is exactly what I am speaking about, is fundamental to it. The Leas-Chathaoirleach will be aware, by virtue of Standing Orders, that Senators are entitled to give any respective views we have on amendments and that is what we are doing.
I am sure that the Bill will pass because I do not think there is anyone in the House who has a problem with its contents. Most of us have a problem with what is not in the Bill. When it passes, I want to be able to honestly say that I tried to do everything within my power to make this sector of society safer. God forbid, if we ever have another accident - and I hope it never happens - like the R116 or Germanwings accidents, I want to be able to put my head on my pillow at night knowing that I tried desperately to get amendments put into the Bill that would make safety regulations more secure and in line with best European and international practice. That is probably why we are having this conversation so fervently to get peer support put on a statutory footing.
I am not sure what the Leas-Chathaoirleach meant about holding my integrity in the highest esteem-----
It was just that you made the comment that people were impugning your integrity.
-----but I wish to put on the record of the House that my attempts to do this are far more important than titles or job allowances that I might get for any job that I perform in the House. What we do with regard to the Bill is a matter of life and death, and that is why it is so serious. That is why the people who are watching us and who we represent know that we are trying to serve their best interests to make the regulations safe so that they and, ultimately, all of us will be safer.
I reiterate the advice from the Attorney General in that he is satisfied there is no conflict of interest or a breach of trust in the engagement on this. I will further clarify the consultation process of the Bill if it would help Senators. I am conscious of time and that we will not get through discussing the issues or the amendments. Senators know that I have moved significantly on putting forward Government amendments. I am eager to discuss them here because it will make for a better Bill and I would like the opportunity to do that.
Section 14 of the Irish Aviation Authority Act 1993 requires the IAA "to advise, on its own initiative or at the request of the Minister, the Government, the Minister or another Minister of the Government or any other person in relation to any matter to which a function of the [IAA] relates". The authority, as I stated in the House on the previous occasion, has extensive and highly regarded technical experts. It operates as part of the executive framework, both with an obligation to decide on matters within its remit and on an independent basis. A different approach is appropriate where it is necessary to have expertise to assess the conduct of the functions by the IAA or in relation to the possible assignment to it of new functions. The Department has availed of such expertise on a number of occasions over recent years. The Bill was developed by the Department of Transport with expert input from the IAA and the Commission for Aviation Regulation, CAR. Additional expertise was contracted to advise on provisions in respect of search and rescue. The Bill was drafted by the Office of the Parliamentary Counsel.
I wish to highlight the level of engagement and consultation that took place with stakeholders in the development of the Bill. Prior to its publication, the Department engaged with the IAA, the Commission for Aviation Regulation, CAR, the Competition and Consumer Protection Commission, DAA, Cork Airport, Aer Lingus, Ryanair, Airports Council International, Chambers Ireland, Irish Congress of Trade Unions, ICTU, Fórsa, the Irish Air Line Pilots Association, IALPA, An Taisce, and Dublin City University. In addition, the Bill was subject to pre-legislative scrutiny by the Joint Committee on Transport, Tourism and Sport in July 2019. Since the publication of the Bill, I have met with IALPA four times and with Senators on three occasions, and a working group was established to progress the development of the Bill chaired by the Department and involving the Department, the IAA and CAR. On the airport charges regulation aspect of the Bill, the Department engaged with ICTU and DAA and held a workshop on the policy aspects involving DAA, Aer Lingus, Ryanair, and CAR. Prior to the Bill's publication, the Department engaged with a number of parties on the text of the Bill, including Fórsa and IALPA, in addition to corresponding with other organisations, as previously listed, on airport charges.
Other examples of engagement with State agencies in the development of legislation,would be helpful for Senators to hear. In drafting the Central Bank (individual accountability framework) Bill 2021, the Department engaged extensively with the Central Bank to inform the policy positions adopted to address the principles as approved by the Government. Further extensive engagement was undertaken with the Office of the Attorney General to achieve the objective of ensuring that the Central Bank has the powers it needs to regulate effectively while safeguarding the constitutional rights of all those concerned.
Speaking on the Land and Conveyancing Law Reform (Amendment) Bill in the Seanad on 9 November 2021, the Minister of State at the Department of Justice, Deputy James Browne, said:
The Bill sets out a number of new rules for the law on acquiring and validating prescriptive easements and profits à prendre. This follows extensive engagement with stakeholders, including the Law Society, the Bar Council, the Property Registration Authority and the Law Reform Commission.
During the debate in the Dáil on the Private Security Services (Amendment) Act on 6 May, the Minister of State said:
... the then Minister for Justice and Equality, Deputy Charlie Flanagan, made a commitment to the Dáil in September 2018 that the law governing the area of persons involved in the execution of court orders that are not licensable by the Private Security Authority would be examined. The Minister established an interdepartmental working group chaired by the Department of Justice, comprising officials from the Courts Service, An Garda Síochána, the County Registrars Association, Revenue Commissioners, Department of Housing, Local Government and Heritage and the Private Security Authority itself.
It is common practice to consult groups directly affected by legislation. The real answer to Senators' questions today is in the response from the Attorney General around the drafting of the Bill. I ask if we could move forward to discuss the amendments and work through the issues Senators have.
We will do that but Senator Craughwell has a comment to make.
I have a few points to make. The Attorney General is one distinguished lawyer. The advice that was read into the record was prepared by another distinguished lawyer. I do not believe any lawyer is more qualified than another, lest a court adjudges the positions of both parties and makes a decision. The Attorney General's advice holds no more water for me than the advice that was read into the record by my colleague, the Leader of the House.
The Leader of the House wrote to the European Commission about the Bill. While she disagrees with me in trying to invoke Standing Order 70, if we proceed with the Bill today and if the advice that comes back from Europe is contrary to the opinion of the Attorney General, where will we be then? We cannot go back.
To be helpful, the Senator would have to go to the Committee of Parliamentary Privileges and Oversight. We are on Committee Stage by order of the House. Any processes involving Article 7 are under the committee and outside the remit of the House.
On a point of order, will the Leas-Chathaoirleach explain that because I do not understand? What is the import of Senator Craughwell's suggestion?
If Senator Craughwell wants to invoke Standing Order 70, he would have to go to the Committee of Parliamentary Privileges and Oversight and follow a process there. We are now on Committee Stage by order of the House.
In other words, we can proceed today.
We must proceed from where we are.
We must proceed or suspend again, and I do not particularly want to do that.
We are not suspending. I am following the order of the House. Anyway, make your comment. We want to be fair.
Before I make my comments, the Minister of State has referred to the people who were consulted on Bills relating to all sorts of areas that have passed through the Houses of the Oireachtas. That is good, and I do not have a problem with that. However, I have a problem if we go to an agency and ask it to write the legislation to regulate itself. She spoke about search and rescue, SAR, particularly and the expertise that is available to the Department on SAR. I assume we are talking about the same company. Aerossurance is the only adviser she has on SAR. If it is, that is a one-man operation for a massive contract and a massive series of issues that have to be overseen. I note that the Department recently tendered for an expert for the next SAR contract, and that is due in at the end of this month.
My amendments speak to the importance of consulting with all relevant stakeholders. It is clear that the Department has not done this in preparing the Bill. Certain provisions of the Bill along with sections of the legislation which implement the EASA basic regulations are based on the air accident investigation unit R116 report, which drew attention to the lack of technical expertise. It is ironic that legislation which is partially based on a report that drew attention to the lack of technical expertise has not been appropriately reviewed by people with technical expertise.
The Bill has been passed by the Dáil. It was initiated on 4 December 2020. It was considered by the Select Committee on Transport and Communications, and it is currently before the Seanad on Committee Stage. Not once have the Houses of the Oireachtas obtained independent technical advice on this Bill. As parliamentarians, we must acknowledge that there are certain types of legislation where expertise is needed. Regarding Irish neutrality, there was talk of a citizens' assembly in which a group of civilians would be presiding over whether Ireland should be neutral, militarily non-aligned or aligned with a bloc such NATO. It is reckless to pass legislation on important matters such as this without consulting experts. On 29 June 2022, the Minister of State attended the Seanad. It was her understanding that there is no member of staff within the Department with such technical expertise. The Department will often commission advice about a Bill but on this occasion it did not do so. Instead it relied on the technical expertise of the Irish Aviation Authority in the preparation of the Bill, notwithstanding the fact that the Bill is intended to regulate that authority. What could possibly go wrong there?
The Minister of State must consult with all relevant stakeholders to ensure the proper implementation of the EASA regulation. She said she engaged with IALPA and the IAA, and she has engaged with us on a number of occasions. In fairness to her, she has engaged but she has not listened, or at least the officials who are advising her have not listened.
That is not fair.
We are where we are a year later, and we are getting nowhere.
You have had great latitude, Senator. Can you wrap up and then the question will be put?
We are on Committee Stage and I am entitled to make my points.
I know that but we are wandering away from the amendment.
I am entitled to make the points I want to make today.
Then make the comment.
If we are going to proceed with the Bill today, which I believe is ill-advised, I am going to make my points.
Article 2.6 of the EASA basic regulation allows the Minister to opt in to certain provisions, activities and organisations. This is relevant, but with regard to sections 67 and 76, we have to give consideration to whether they reflect state-of-the-art and best practices in the field of aviation. This is what I mean when I speak about a select committee of the Seanad having experts available to it.
That is for a different forum.
I am not an expert in the area, but I am being asked to put my name to this Bill by virtue of the fact that I have been involved in discussion on it. This will be the Minister of State, Deputy Naughton's, Bill when it goes onto the Statute Book properly and the bottom line is that none of us is expert enough to make judgments on some of the provisions in the Bill.
Section 67 makes reference to the Minister. It refers to conducting a regulatory review along with the universal safety oversight audit programme of the International Civil Aviation Organization, ICAO. The Bill does not explicitly state what type of expertise the people conducting this review will be required to have. Other amendments I have tabled today provide for the appointment of a chief executive, who I believe could address this issue. Does section 67 reflect the best practices in aviation? I do not believe it does and we need to be incorporating all the relevant stakeholders to ensure that it does.
How might this Bill not be the best implementation of the EASA regulation? There are problems with section 76. Apart from the section 67, section 76 invests too much power in the Minister. I believe this would be contrary to Article 8 of the EASA regulation. Under this section the Minister has responsibility for strengthening the national aviation safety regulatory framework for the Irish Coast Guard.
We will be coming to that section later.
I know. I am just trying to bring it all together. These are the only areas that cause me difficulty. If we can iron those out, we can move on with the Bill.
One of the biggest issues with the Bill is a lack of accountability for the chief executive. Legislation such as this is too important to allow for incompetence.
The introduction of the pilot supports programme is a welcome development. Members of the Opposition have been happy to support this part of the Bill. However, a lot more must be considered.
Exclusively relying on the technical expertise from the Irish Aviation Authority is likely to bring up compliance with regard to the EASA regulation. There must be an independent review by internationally renowned experts who are independent of the IAA. The Seanad should inquire whether the Bill amounts to a measure under the EASA basic regulation. In the context of our role as Senators, we can request that technical advice be sought under Standing Orders. I am returning to that issue again. I believe we should not proceed without expert advice.
I have some concluding remarks, but the Leas-Chathaoirleach is so anxious for me to sit down that I will do so and draw my breath for a few minutes.
Thank you, Senator. I appreciate your co-operation. Are you pressing the amendment, Senator Doherty?
I have not finished speaking to the amendment. A lot of what we have spoken about this morning is about technical advice. It is not about peer support.
You can have a further distinct comment and then tell us if you are pressing it.
I have many distinct comments-----
New comments on the specific amendment.
-----but the first question I have for the Minister of State is on the basis of the statement she just made with regard to taking a different approach than relying on internal advice when we are looking at new functions for the IAA or, indeed, introducing new regulations for the IAA. The three amendments most of us are seeking to insert in the legislation relate to new regulations pertaining to peer support programmes, the licenceholders' forum and the licenceholders' charter. Will the Minister of State explain why a different approach was used for the drafting and insertion of amendments for new regulations for search and rescue? We relied solely on internal advice and did not take the different approach that the Minister of State spoke about with regard to the new regulations on peer support, licenceholders' forum and licenceholders' charter.
I will speak to the amendments, which I have not done yet. That will clarify matters. The requirement in Irish law for peer crew support derives from EU regulation 2018/1042. The regulation was developed in consultation with all stakeholders, including pilot representative bodies across Europe. The final regulation represents a consensual balance of the views of all stakeholders. The regulation came into effect in February last year and the European Union Aviation Safety Agency is required to review its effectiveness after this year.
Under the regulation, each airline must enable, facilitate and ensure access to a proactive and non-punitive peer support programmes that will assist and support flight crew in recognising, coping with and overcoming any problem which may negatively affect their ability to safely exercise the privileges of their licences. It is up to each airline how it implements this requirement; whether it does so by itself with another airline or whether it does so with other parties, such as trade unions. The key point is that the obligation rests on the airline to ensure its flight crew has access to a crew peer support programme that is in accordance with the regulation. The IAA is the competent authority in Ireland in respect of the regulation. All Irish airlines have a peer support programme in place and the IAA has audited all peer support programmes as per the EASA requirements. Both Aer Lingus and Ryanair established peer support mechanisms years in advance of the legal requirement, indicating a voluntary commitment on the part of airlines to the principle and practice of crew peer support.
Amendment No. 3 and Senator Doherty’s amendment d4a propose additional national requirements over and above the EU regulation. The amendments propose that the IAA will be required to review airlines' peer support programmes every three years and to convene a national forum, the functions of which would include creating or encouraging the provision of a national crew peer support programme. In response, Government amendment c4a is proposed, which will require the IAA to undertake a review of the effectiveness of crew peer support programmes, and in so doing take account of many of the criteria as originally proposed by Senators, including addressing matters such as the promotion of use of a programme and trust in it; independence of peers from management or supervisory functions; and selection of training of peers. The Government amendment does not provide for a national forum as IALPA has requested. Following extensive engagement with IALPA, it is not yet clear how the objective of such a forum - the creation or encouragement of the provision of a national programme which would be accessible by aircrew from any airline - would be operationalised, funded or structured. It is also not clear what parties would be involved or the extent to which such a concept would be supported by airlines. The proposed aviation stakeholders' forum is a mechanism by which any safety relevant issues can be brought forward for attention and teased out in a consultative and collaborative manner, including issues relating to crew peer support programmes. If the aviation stakeholders' forum brings forward proposals to establish a crew peer support national forum, I have committed to legislate for that.
On the proposal for rolling three-year reviews, I would make the following points. Crew peer support programmes, while important, are only one element of the vast body of systems, rules and procedures designed to ensure safety in aviation. Hard-coding the IAA's efforts and conducting reviews every three years is potentially disproportionate and may unnecessarily divert the IAA's resources. If there is a review and if there is a need for a review subsequent to the IAA's initial review 12 months after the commencement of this Bill, then this can be pressed with the IAA at the aviation stakeholders' forum.
On the position that a pilot should be able to seek assistance from a peer not working in the same organisation, the EASA regulation places the responsibility on airlines to ensure they have effective crew peer support arrangements in place. A critical element in the process is for the airline to be guided by a peer on when a pilot needs to be rostered off and supported. The airline has to be satisfied that the guidance is coming from a source that it is satisfied with and has confidence in. What is being envisaged in this amendment is a different model to what pertains now. It is unclear how it would be operationalised and what the consequences would be from a legal liability perspective. The proposal requires careful consideration, input from the first IAA review and discussion at the aviation stakeholders' forum and as such, I cannot accept amendments Nos. 3 or d4a.
The Minister of State has specifically responded to the amendment.
Can the Minister of State respond to the question I asked before she made her intervention?
What was the specific question?
Why was a different approach taken with some sets of new regulations for the IAA versus other regulations for the IAA?
On the specific crew peer support amendment before us today, there is no conflict within my Department on seeking the input of the IAA. Given the undoubted and extensive aviation safety expertise of the IAA and its remit to promote aviation safety, it would have been remiss of my Department not to have sought the IAA's input.
On search and rescue, as I have stated the Department engaged with Aerossurance on that.
I want to make one comment to the Minister of State on the review mechanism. We often get amendments in the House from Senators Higgins or Ruane on a six-month review or to have a report back after six months. Is that being ruled out completely? I will speak on peer support only and I will not come back in again. The issue of health and well-being is important and despite what Senator Craughwell is saying, the Minister of State has moved gargantuanly from the beginning to now. Senator Doherty has highlighted the issue of several incidents. There is a real need for a better model for flight crew and for pilots in particular.
As part of our research for this Bill we found that flight crews and pilots do not like to talk about mental health issues, sexuality and personal issues and that is for a number of reasons. These reasons include status, job and licence. It is important that we promote the issue of health and well-being and that we offer that support. In fairness to the Minister of State she is doing that. The peer programme must include the ability to inform and educate flight crews and pilots in the area of mental health and well-being. If we do nothing else in this Bill we should insert that and make it part of what we are about. From talking to pilots and from doing research I have seen that pilots are slow to talk. Being able to talk helps to resolve issues and this must be enabled to take place in a confidential and trusted environment. That is coming to me from pilots and flight crews. I know the Minister of State is moving but it is important that we see that we are doing that.
We still have Report Stage to come for both the Minister of State and colleagues.
We all have the same aim; to have the best peer support programme. The issue is around a national peer support programme and I am saying clearly that I am open to that. However, we need to think through how it will operate, how it will be structured and how it will be funded. I cannot put something into primary legislation without that being defined. It needs to be defined through the key stakeholders. I am opening the facility for that to be done through the stakeholders' forum, where the airlines, in consultation with one another, can clearly lay out how this would operate and how it would be funded. The airlines themselves have to have confidence in this and it is not for me as Minister of State to put something into primary legislation when it has not been worked out. I have given a clear commitment that if the stakeholders' forum comes back proposing a design for how a national peer support programme would work, I will legislate for that. That is fair and I have moved significantly on this. We all want the best peer support programme.
I refer to the issues that Senator Buttimer highlighted around having confidence in it. That is exactly what I want as well but I want it to be thought through. I want it to be a good structure that works and that has the buy-in of airlines, all the stakeholders and, obviously, pilots. All aircrew would be involved in this.
We have spent many hours discussing this Bill, and rightly so given the importance of getting this legislation right. It is important to acknowledge that progress has been made with the Minister of State since amendments were originally tabled.
I will make two points. First, the gap between the Minister of State's amendment and what man of us are looking for with regard to peer support is not great. Second, while I accept what the Minister of State said about delegating the operation of what we are asking for to the forum, anyone who has been around a while knows that if we do not hardwire into the legislation the precise detail of how the peer support should operate, it will not happen. There is a fundamental imbalance here. There are all sorts of issues with the imbalance between employers and employees. We then have the regulator in the room and then the types of workers we are talking about and all that goes with that in terms of them coming forward with various issues.
It is not overly onerous to provide for a review to be conducted every three years. Senator Buttimer referred to a period of six months. This is not a six-monthly or annual review but a review every three years.
On the independent selection and training of peers, ultimately this comes back to trust. There have been what we would describe as breaches of trust in the past in terms of the regulation and operation of the sector. These have been detailed with regard to some of the previous incidents, including loss of life. There needs to be trust in the set-up and construction of peer support programmes and that they will be independently appointed.
On access to peer support outside one's organisation, this sector is made up of a small number of very large employers. It is the opposite of a sector with a large number of small employers. It may be difficult for licenceholders to seek peer support within their organisation and they will, by necessity, want to go outside their organisation. That should be facilitated.
If any review of peer support is to be effective, it needs to be clearly stipulated in the legislation what the role of the Irish Aviation Authority is in that regard. The amendments provide that the Irish Aviation Authority would direct changes to the peer support programme within various airlines. To say that this should be worked out within the licenceholders’ forum is not good enough.
Senators Craughwell and Doherty have gone into much greater detail than I have but, having listened to all the debates and engaged on Second Stage, I believe there has been progress. There are, however, a small number of very important matters outstanding and the possibility of achieving agreement on them is not insurmountable. We have the basis of good legislation before us if only we could get agreement on what I consider to be a small number of fundamental matters. It would not be overly onerous on the new aviation authority to undertake what has been asked for. I appeal to the Minister of State in that regard.
Before the proposer of the amendment responds, I welcome to the Gallery two members of the staff of Westminster, our sister Parliament. It is good to have them here. They are getting an interesting perspective on parliamentary democracy today.
"Interesting" is a positive word.
I am sorry to be pernickety. I certainly was not questioning the Minister of State's ability to contact the Irish Aviation Authority and to ask its advice. What I am asking is why the Minister of State took a different approach with regard to one set of new regulations she is introducing for the IAA around search and rescue but did not seem to deem it necessary to get expert advice on the other set of new regulations that we are proposing be introduced for the IAA. I do not have a problem with the Minister of State speaking to them in any way, shape or form. What I am asking is why the Minister of State only spoke to them in respect of our set of new regulations that were to be introduced when she saw fit to, in the Minister of State's words, use a "different approach" by getting external aviation expertise with regard to the new regulations she is introducing for the IAA in this Bill.
For the record, in case anybody thinks that I do not support the Minister of State, I very much welcome her statement that she supports a national peer support programme. However, having been stalled to some degree on Committee Stage for over a year now, we have had a year to consider what we could do with peer support in the same reflective way the Minister of State has spent the past year reflecting on the-----
I am delighted to be chairing the movement.
-----licenceholders' charter and licenceholders’ forum. We have amendments from the Minister of State that somewhat water down the licenceholders' forum to a stakeholders' forum. I must be honest in expressing some grave concerns with regard to importing the important structure and action of establishing a national peer support programme to a committee meeting that nobody will be compelled to attend. We have been told we could not possibly have three-year reviews of the current peer support programmes that are operated disparately and differently by the airlines operating in Ireland because we might overwhelm the IAA's resources. However, one of the requirements of the IAA, under the EASA regulations that were specifically set down for peer support, as negotiated in 2018, was to regulate and review the peer support programmes.
We are asking for reviews to be done every three years as opposed to the Minister of State's position that these should be done as and when the IAA sees fit because we have a resource problem and we might overwhelm the authority. If there is a resource problem, we need to give the IAA more resources. It is responsible for regulating the safety of our airline industry. Nothing could be more important.
The reason I sincerely believe we should not delay establishing a national peer support programme any longer is not because I want it but because our pilots told us, on the record in the Oireachtas committee, that they are afraid to come forward about having made a mistake or experiencing issues in their own lives, whether it be a mental health issue or substance abuse, for fear of being punished by their own airline. That is on the record. I am not sure what we are waiting on before we introduce regulations in law to make sure the IAA, as we were told during meetings during the year, does not lose the flexibility it believes it would lose if we put them in legislation.
Officials from IALPA told the Joint Committee on Transport and Communications that people in their organisation had suffered from stress and mental health problems and some of their employers see these issues as burdens and as getting in the way of their commercial interests.
The purpose of this Bill is to split the Irish Aviation Authority into two so that we will have a safety regulatory authority that is not reliant on funding from commercial airlines.
Right now, we are fighting against a tide of giving more powers to the IAA to ensure that airlines operate under the guise of best international and European practice in regard to safety and regulatory frameworks. Our excuse for not doing it now and leaving it to another day is that we do not have enough teased-out data or conversations. We have had a whole year for conversation. We have put down comprehensive amendments showing exactly how we expect the State to fund, finance, regulate and operate a national peer support programme. The aviation organisation that represents our licenceholders - the men and women who put on their uniforms and get up into the cockpits to fly us places - is begging for a national peer support programme to be put in place because it cares so much about its members. We should care as much as it does about those members. More importantly, we should care about every single person who sits on an aeroplane equally as much as IALPA cares about the licenceholders it represents in this country.
There is absolutely no uniformity across the peer supports that are operated, and the IAA knows it. The authority has conducted its reviews in the years since 2018 and it certainly knows there is no uniformity across the peer support programmes that are operated by some of the largest employers in this country. Yet, it does not want its hands tied. It wants to retain the flexibility of not having legislation in place to govern safety and regulation, particularly in an area in which it is failing in its remit and duties. Mr. Alan Brereton of IALPA told the transport committee that there is an average of one pilot suicide every 18 months in Ireland. That is an absolutely stark figure when we consider how few pilots there are in this country. In a seven-year period, six pilots in Ireland took their own lives. I am not saying that a peer support programme run consistently and uniformly would have saved every one of those lives but it certainly would have gone a hell of a long way to ensuring people had supports when they put their hands up and said they needed help.
We are dithering around here. A forum will be established after this legislation is passed that absolutely nobody will be compelled to attend. A charter will be drafted at some future point setting out rules with which nobody will be compelled to comply. I really do not understand it. The amendments are welcome because they put something in the legislation that was not there when it was brought forward a year ago, but the language in them is so loose and watery as to be absolutely ineffective. We are standing here under the pretence of doing something when, in fact, we are not really doing anything at all. We certainly are not making aviation safer.
Our pilots have expressly laid out their fears. We spent the past year being subject to what I can only call lobbying - it would not be accurate to call it gentle persuasion - by the regulator to persuade us it does not need the legislative amendments we are proposing in this Bill. That makes me really worried. The regulator says it does not need legislation to govern the peer support programmes that are regulated by the EU but it certainly is not providing that regulation itself in any way, shape or form that is acceptable to the licenceholders. It may be acceptable to the airline operators, which might be why this Bill is being brought forward in the first instance. We have a regulatory authority that is reliant on the commercial funds from airline operators to survive and have the resources to do what it is supposed to be doing. Surely to God in a Bill that is splitting the commercial aspect of looking after and regulating airlines in the context of safety elements, it is absolutely fundamental that the safety regulatory authority would have the tools, power and laws to ensure our airlines operate EU and International Aviation Safety Assessment, IASA, regulations with uniformity and in the best interests of crew and passengers. I really do not know why a regulatory authority would say to Members of Seanad Éireann that it needs flexibility. I just do not get it. The flexibility it has displayed in the past number of years certainly does not give me any confidence whatsoever.
The reality is that we have airline pilots sitting in front of Oireachtas committees telling us they are afraid because of the environment and the employment conditions in which they work and because of the fast and loose way the IAA chooses to impose the EU regulations. There are people in the industry who are not willing to bring forward their concerns, daily issues, stresses or whatever it happens to be that impinges on their ability to perform their duties. They are not willing to come forward, share that information and get help. I do not know why a regulator would want to allow different interpretations of peer support requirements as directed by the EU. I would love if the Minister of State could explain to me, above all, why we are going to continue with an operation that has not served Irish aviation and Irish licenceholders well at all since 2018. We are talking about people's lives being at stake, not just through accidents but arising from their having difficulties in their own lives and not being able to get support. I would love to know why we are putting off dealing with this issue to some future date and some future meeting at which not everybody will be around the table and at which some charter will be drawn up with which nobody will ever be compelled to comply. It is absolutely bizarre, to say the least.
There is an old saying that there is never the right time to do the right thing. The right time is now, not at some point in the future. The right time for us to do the right thing is now.
The Senator has made her point very clearly. I call Senator Craughwell.
It is rather odd than in the context of SAR, an expert was brought in, if one can call a non-pilot, one-man operation an expert, to advise on this Bill. I am on record in this House, at committee and in correspondence with the Department of Transport as to the reservations I have over a one-man band providing any advice to the Department. The letter I got in response from the Department sought to assure me this one-man band was providing advice to organisations all over the place. It shocks me that this operation has a balance sheet without creditors or debtors at any stage in the three years prior to getting the contract. Indeed, the tender the Department recently put out for somebody to assist with the procurement of the next SAR contract sets the turnover of the organisation so low that anybody could apply. I have a difficulty with that.
As Senator Sherlock said, there is very little dividing us at this point in time. We can have confidence in a peer support group made up of the pilots themselves. Senators Doherty, Sherlock and Buttimer are correct in what they said. Pilots are a very unusual breed. They are very protective of their licences. They communicate among themselves but are slow to communicate in a forum in which other people are involved. All of us in this room will probably get on an aeroplane in the next month or two. When the two men walk into the front of that aircraft and close the door-----
Or women.
When those two men or women get into the front of the aircraft and close the cockpit door, none of us will ever know what goes on in there until the aeroplane lands. Often, when one is flying somewhere, one sees a member of the cabin crew replacing a pilot while the latter pops out to the toilet or whatever, but we do not otherwise know what goes on. Like my colleagues, I want to know when I get on an aircraft that if the pilot had a problem that day, he or she did not have to bring that problem into the cockpit. Every one of us leaves our house every day with a plethora of different types of baggage we carry with us for the day. Some days that baggage is good and other days it is bad. On some days, we are carrying problems we cannot resolve. None of us is carrying those problems with us at 35,000 ft above the ground.
There is very little dividing us at this stage. Pilots are saying that if they get this amendment, they will be willing and able to participate in every way. I do not accept that the provisions are too onerous on the IAA. Members of the authority were able to find enough time to meet all of us to try to convince us this was the way to go. The IAA was found to be culpable in the case of Rescue 116 insofar as it was lacking in oversight. The Department was found to be an unintelligent consumer of aviation, without expertise in the area. Senator Doherty made an important point in this regard.
We are five years out and the Department still does not have an aviation expert on its staff. The Irish Coast Guard still does not have an aviation expert on its staff. What is going on? I fully appreciate the Minister of State engaging with the Irish Aviation Authority, IAA, on everything and I respect its right to contact the Minister of State on any matter on which it feels fit to advise her or on which to comment. I have no difficulty whatsoever with the IAA doing that. I do have difficulty with it being the main influencer in this Bill. I have difficulty with the Minister of State not accepting that this would be reviewed at least once every three years. It is not an onerous task. It will not consume the IAA totally. If somebody needs to be employed to carry out that work over a three-year period then employ that person. God knows the Minister of State read out a list of experts the last day she was in the Chamber. There are enough of them out there.
This Bill needs to pass and this issue and the pilot's form have been holding us up. That is what is holding us up. Let us be honest about it; if the Minister of State had difficulties in her Department, she would feel comfortable talking to another Minister. She would not come in here and talk to us about it. We would not sit down in the dining room and have a chat about the difficulty of dealing with people or whatever. The Minister of State deals at her peer level and is happy to do that. That is all we are looking for here. If we can move to that stage, we can probably move on with this Bill. Failing that, I am really concerned that advice will come back from Europe that we have gone the wrong direction and if it does, then where are we? I am still of the view that we should not proceed with this today but there we go.
I thank the Senator for co-operating. We will take a comment from Senator Buttimer then we will really have to put the question shortly.
I want to support the Minister because in fairness, in his letter to us in June, Mr. Jim Gavin of the IAA, made it very clear that "the IAA will conduct continuing oversight of the implementation of the regulation in accordance with the EU regulations." The letter went on to state that: "The proposed amendment mandates the IAA to conduct a review, not later than 12 months after the commencement of the Bill, on the effectiveness of the peer support programmes introduced by Irish airlines." Mr. Gavin is very clear in the letter that his advice is that there would be peer support.
I refer Members to the lived experience and well-being research in Trinity College Dublin, TCD, which specifically investigates and does research on the aviation sector. It highlights the importance of the impact of stress and mental health on performance and flight safety. The Minister of State is right. We are all of the view that we are on the same page. In the context of the three crews, I know the accepted number of crews according to the European Aviation Safety Agency, EASA, varies from five to three. Why can we not go to one? I am just curious to hear that again.
We really have discussed this to the nth degree now. When the Minister responds I will ask Senator Doherty how stands the amendment because every conceivable point has been made. I have read the amendment, every aspect of which has been put forward a couple of times by a couple of speakers.
On a point of information-----
Senator Craughwell has done it properly; I am not impugning him.
On a point of information, it is not the Chair who decides when the question is put. It is the Members who decide.
Okay. It is in the good interests of the management of the House; we are all on the same team in that regard.
I do not dispute that.
With regard to existing peer support, we have the same law as the rest of Europe and that is enforced by the IAA. Senator Doherty's initial question was around the engagement of the IAA. The crew peer support programme is already covered by the European Aviation Safety Agency, EASA, regulations. As I stated earlier, there is no conflict in engaging with the IAA on this. With regard to Senator Sherlock's call for the national peer support programme to be put into legislation-----
No, I understand it will be in legislation; it is the detail within the peer supports as set out in the amendments here. The gap is small.
That is precisely the issue when I engage with the Irish Air Line Pilots' Association, IALPA, and ask how it will be funded, how it will work and how it will be structured. Those answers are not there, which is fine, but this must be done through the aviation stakeholders' forum. We are talking about trust and confidence in what is potentially a really important national peer support programme. That is where we need that collaboration to be able to put forward a proposal for which I said I am willing to legislate. It needs to be done through that stakeholders' forum, however. It needs to have the trust and confidence of airline pilots and all those key stakeholders who will be using this potential national peer support programme.
With regard to the review, the Government amendment requires the IAA to review the peer support programme within 12 months. That review in itself will feed into the work of the stakeholders' forum when it is formulating what could potentially be a national peer support programme. We want the best policy and legislation that has the confidence of all stakeholders with regard to protecting those who need that peer support. Again, my door is open with regard to crew peer support. I want exactly what all Senators want, which is to ensure people have confidence in it and that it is workable and that we know how it is structured, how it will operate, how it is funded and all of these issues. That is a commitment I have given here repeatedly. It needs to be worked out through the stakeholders forum, however. I would be really obliged if Senator Doherty would press the amendment.
Did Senator Craughwell have a question?
I accept the Minister of State's bona fides on this-----
The Senator should stand up.
-----but the stakeholders' forum will include people other than pilots. We are arguing that pilots need to have their own forum.
Okay, that has been made very clear. I thank Senator Craughwell.
I know I am being pernickety and I apologise for being so. I am not suggesting there is a conflict with regard to the Minister of State approaching the IAA for advice. What I am asking about is based on her opening statement today whereby on occasions when the Minister of State introduces new pieces of legislation, she takes a different approach. What is the difference in the approach between the new regulations the Minister of State is introducing on search and rescue, SAR, on which she determined and deemed it necessary to get external expert advice, versus the new regulations we are proposing to introduce here on peer support and the licenceholders’ forum and licenceholders’ charter on which she did not take external advice? I am curious as to the reasons behind the different approach for SAR and not needing expert advice. I will give the Chair a comment on my amendment then if that is okay.
I ask the Minister of State to answer that in one line and we will try to put the question.
The Department consulted the IAA and I listed out its huge expertise with regard to this area. The Department also consulted IALPA and the list of other stakeholders I listed out previously. In fact, I listened to IALPA's views and those of Senators in that regard, so much so that there is huge movement in respect of the amendments I am trying to progress today.
Is Senator Doherty pressing the amendment?
The Minister of State said we have the same laws in Ireland as we do across the EU. I wish to put on the record that the inconsistency of the import of those laws is the reason we are all standing here having this conversation today. There is no uniformity of the import of the regulations of EASA. There is certainly no uniformity in the regulation of the IAA.
I very much welcome the Minister of State's commitment today to establishing a national peer support programme, however, and her commitment this morning that her door is always open. On that basis, I will withdraw my amendment specifically to work during the summer months to put forward one that gives the Minister of State the information that she said she does not have today regarding financing arrangements and how a national peer support programme would work.
We will have opportunities to discuss it again on Report Stage.
Amendment, by leave, withdrawn.
Section 59 agreed to.
SECTION 60
Amendments Nos. 3a, 3d and 5a are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 3a:
In page 41, to delete lines 26 to 28 and substitute the following:
“(ii) in paragraph (a), by the substitution of “7, 8 or 9” for “9”,
(iii) in paragraph (c)(i), by the substitution of “not more than 5 years” for “4 years”, and
(iv) by the deletion of paragraph (f),”.
Amendments Nos. 3a, 3d and 5a have been developed following consultation with the office of the Comptroller and Auditor General and my officials.
The general policy intent is that, post vesting, the IAA will be audited by the Comptroller and Auditor General and AirNav Ireland will be audited by a commercial statutory auditor.
Amendment No. 3a to section 60 amends section 17 of the Irish Aviation Authority Act 1993 by deleting subsection (2)(f), which provides for the appointment of a commercial statutory auditor to the IAA.
Amendment No. 3d introduces a new section amending section 30 of the 1993 Act, which covers the accounts and audits of the IAA. The amendment specifies that the financial statements of the IAA will be audited by the Comptroller and Auditor General. This amendment also removes the references to balance sheets, profit and loss accounts and cash flow statements in section 30 to reflect the changes in the naming of financial statements arising from financial reporting standards.
Sections 3 and 4 provide that, in limited circumstances, a subsidiary of the IAA can be audited by a commercial statutory audit firm rather than the Comptroller and Auditor General, subject to the approval of the Minister for Transport and the Minister for Public Expenditure and Reform following consultation with the Comptroller and Auditor General. For clarity, the IAA will not, post vesting day, have any subsidiary. However, it will retain the power to establish such subsidiaries, subject to ministerial approval.
Amendment No. 5a amends section 113 to reduce from 12 months to three the time in which the IAA must submit the final accounts of the Commission for Aviation Regulation to the Comptroller and Auditor General after the dissolution of the commission.
I intend to table an amendment on Report Stage to amend section 29 in respect of the accounts and audit of AirNav Ireland to reflect the changes to the naming of financial statements arising from financial reporting standards.
There is concern among air traffic controllers about the vesting date. We have seen the intervention of Mr. Kieran Mulvey, complete engagement with the mediation process and so on. Has that process concluded or how stands it? The vesting date is an important issue for staff members. They are of the view that having a vesting date without a resolution of the issues is putting the cart before the horse.
I thank the Senator. That was succinctly put. If the Minister of State responds to the question, we might be able to move on.
The Bill protects the workers' rights and there will be no changes to those rights. Management and unions are working through the issues currently. There will be no change to the workers' status.
Amendment agreed to.
Section 60, as amended, agreed to.
Sections 61 to 64, inclusive, agreed to.
SECTION 65
Government amendment No. 3b:
In page 43, to delete lines 30 and 31 and substitute the following:
“(3) When preparing the statement of strategy, the company shall consult with stakeholders and may consult with any other persons it considers appropriate.”.
This amendment is also in the names of Senators Craughwell, Boylan, Gavan, Ó Donnghaile and Warfield.
I agree with the point raised by the Senators about the importance of stakeholder consultations and have proposed an identical Government amendment, which replaces "may consult with any persons" on the preparation of the statement of strategy with "shall consult with any persons". It is important to acknowledge that the IAA already recognises the importance and value of stakeholder engagement. The aviation regulator chief executive designate invited observations on the preparation of a draft statement of strategy for the new IAA regulator for the 2022-24 period by 19 October of last year. The stakeholder consultation was published on the IAA's website and through its social media channels, meaning that it was open to all interested parties to make submissions. The IAA was pleased to receive detailed comments from a broad cross-section of Irish civil aviation, including air operations, air navigation services, airports and general aviation as well as comments from the IATA and IALPA. Following a review of the comments received, a revised IAA statement of strategy is being drafted in preparation for the establishment of the new IAA.
I thank the Minister of State. This is a good example of collaboration.
I welcome the Minister of State's acceptance of the amendment from my colleagues. I will make two points. First, the words "shall" and "may" are consistently used in legislation. They are a watered down version of telling someone or an organisation that it "has to" do something, which is a much stronger term than "will". I am not just saying this because it relates to a number of my later amendments. If we tell someone that he or she "shall" or "may" do something but he or she does not do it, there is no compelling response in the legislation to make him or her do it. "Shall" is a wishy-washy word.
I welcome this amendment. It is important that, when compiling the strategy, the IAA involve all stakeholders. We have had a number of engagements with the IAA down the years at which certain airlines have been absent and, therefore, they could not feed into the IAA's strategy. I am pleased that we are going to consult all stakeholders rather than just a few.
Amendment agreed to.
Amendments Nos. 3c, 3g and 3h are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 3c:
In page 44, line 1, after “Minister” to insert “and the Houses of the Oireachtas”.
We are adding a provision so that the planned submission to the Minister will also be submitted to the Houses. In this way, Oireachtas committees and so on can become involved in the plan. I will not delay any further on this other than to ask the Minister of State to consider adding the words "and the Houses of the Oireachtas".
The business plan of any organisation is an internally focused executive document. In effect, it is an operational plan for a given period. It may contain commercially and operationally sensitive information. As such, it would not be appropriate to place it in the public domain. The IAA will be subject to a range of accountability mechanisms provided for in the Bill and existing legislation. Such mechanisms include the laying of the statement of strategy and the annual report and financial statements before the Houses of the Oireachtas and the requirement under section 77 of the Bill that the chief executive or a relevant officer shall account for the performance of the company’s functions to a committee of one or both Houses. As such, I cannot accept amendment No. 3c.
Section 67 provides that the IAA will submit to the Minister an annual report on its performance in regulating aviation safety. It sets out that the report will include planned activity for the coming year and a review of the past year’s activity. This section requires that the Minister must, within one month of receiving an aviation safety performance statement from the IAA, lay it before each House of the Oireachtas. Amendments Nos. 3g and 3h effectively require that the report be submitted to the Minister and the Houses simultaneously. Given the requirement for the Minister to lay the report before the Houses within one month of receipt, these amendments result in an unnecessary bypassing of the normal process of a Minister seeking briefings and clarifications from the State body for which he or she holds policy and corporate governance responsibility before the report enters the public domain. As such, I cannot accept amendments Nos. 3g and 3h.
The issue of commercially sensitive details being contained in reports is being used constantly at Oireachtas committees and in the Houses. “Commercial sensitivity” is about other commercial entities.
This is a problem for the Houses of the Oireachtas and the committees in the Oireachtas as much as for the Minister. We should be able to have access to information. Far too often, commercial sensitivity or commercial issues are cited to us when denied access to information. It is clear in European regulations that the function of the Houses of the Oireachtas is oversight. It is up to the Houses of the Oireachtas to have oversight. A recent communication from the Department cites Article 18 of European Directive No. 24/2014. The Department said it is unable to hand over certain information or appear before an Oireachtas committee because of commercial sensitivity. If the author of that letter had continued to read on as far as Article 83 of the same directive, he or she would have seen that they are obliged to be overseen by the Parliament. That includes parliamentary committees and special committees put together for oversight purposes. Far too often, the function of either House of the Oireachtas or the committees within the Oireachtas is diluted through this excuse of commercial sensitivity.
I have no difficulty with what the Minister of State said about section 67 and the Minister getting the report first. However, the Department is responsible for this. There are reports into maritime issues that we are still waiting to have released almost a year later, if I am not mistaken, or maybe longer than a year. Even though the legislation states the report has to be released within a month, there is a likelihood that at some stage in the future a Minister will say he or she is unable to publish it for commercial reasons or whatever other reason. This is why we are trying to hardwire into the legislation that it has to come before the Houses of the Oireachtas. I accept the Minister of State's bona fides. I accept that she would want to publish something within a month, as the Bill states, but her officials may tell her she cannot. Where do we stand then? After all, we are supposed to be overseeing the Departments, not the other way around. The Minister of State's colleague in Fine Gael, Deputy Michael Ring, made a strong speech about the need for Oireachtas Members to be able to oversee things. That is something we need to dig our heels in on and make sure we are treated with the respect those who elect us require of us.
The purpose of this Bill is to separate the current formation of the IAA into two structures, whereby there will be a separate commercial aspect of the authority and the regulatory side of it, which will be independent of commercial revenue and hence influence of airlines. What commercially sensitive information could the new safety regulatory authority have in any report that would not be deemed appropriate to put before the Houses of the Oireachtas? Whatever about the commercial sensitivities of taking in finances from airlines through air traffic control and so on, the safety functions of the new agency we are establishing in this legislation should be subject to transparency and oversight of both the Oireachtas committee system and Seanad and Dáil Éireann. I cannot for the life of me think what could be commercially sensitive in a report from the statutory regulatory body we are establishing as the new IAA.
It is hardwired into this legislation that the Minister must lay the section 67 report before the Houses of the Oireachtas within one month.
On what could be in the business plan, the IAA will be subject to a range of accountability mechanisms provided for in the Bill. A business plan is a document that defines in detail a company's objectives and how it plans to achieve its goals. It lays out a written roadmap for a company from financial and operational standpoints. As such, a business plan can contain information on financial positions and intended expenditure, operational readiness and business risk and response to same. Should the business plans be in the public domain, there is a risk that the contents of the plan will alert regulated entities to specific work the regulator will carry out in that period. For example, if the business plan included information on procurement expenditure for certain projects, this could alert the industry to a body of work the regulator intends to carry out, giving advance notice to those regulated entities. While it is correct that the public will be aware at a strategic level of the work that will be carried out through the publication of the statement of strategy, publication of internally-focused business plans carries risks that could ultimately fetter the work of the regulator.
The Senator may make a final comment before I put the question.
It might not be the final one but it is a comment. I do not understand why alerting the organisations that in the business plan the regulator is about to do A, B or C or purchase A, B and C to carry out its function is an issue. Surely there is nothing wrong with people knowing they are going to be inspected. Surely there is nothing wrong with the regulator pre-advising people. It does not stop the regulator from carrying out snap inspections if that is what it wants to do. Why would we be unwilling or afraid to inform or advise those who are to be overseen by the IAA that it is moving in a particular direction? I do not see how that is a bad idea. If it was the commercial side, that would be a different issue but this is not the commercial side; this is the regulatory side. I just do not see a problem with knowing in advance. To take an example from my previous career, schools are notified in advance that a whole-school inspection is happening so they can prepare for it and make sure all the i's are dotted and t's are crossed. By introducing that system we have improved schools all over the country. What would be wrong with people knowing they were about to be inspected by the IAA or that the authority was bringing in expertise or specific equipment or whatever? I cannot accept that at all.
It does not seem we are going to get agreement on this.
Amendment put:
The Committee divided: Tá, 9; Níl, 21.
Tá
- Boyhan, Victor.
- Boylan, Lynn.
- Craughwell, Gerard P.
- Gavan, Paul.
- Keogan, Sharon.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Carrigy, Micheál.
- Cummins, John.
- Currie, Emer.
- Doherty, Regina.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Gallagher, Robbie.
- Hackett, Pippa.
- Kyne, Seán.
- Lombard, Tim.
- McGreehan, Erin.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Tellers: Tá, Senators Gerard P. Craughwell and Lynn Boylan; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.
Progress reported; Committee to sit again.