Amendments Nos. 1 and 17 are related and may be taken together by agreement. Is that agreed? Agreed.
Adventure Activities Standards Authority Bill, 2000: Committee Stage.
I move amendment No. 1:
In page 6, lines 27 to 33, to delete subsection (4) and substitute the following:
"(4) Where it is proposed to make a regulation under this Act, a draft of the regulation shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving the draft has been made by each such House.".
The Minister of State and I discussed a similar amendment to another Bill yesterday. The Bill provides that, in the convenient bureaucratic way, regulations are to be laid before the Houses of the Oireachtas and unless the Houses pass a resolution annulling them they are in force. As a Member of this House for 20 years, I have not seen a Government put a regulation of this kind on the Order Paper to be discussed. I recall one occasion when a regulation in this form was discussed in the House but that was because it was introduced on foot of a Private Members' motion by the Opposition.
It is argued that regulations take this convenient form because the Order Paper cannot be clogged with numerous small details. That argument is sometimes embellished by contending that it might happen that there is a need to make regulations quickly during a recess. For example, if after 6 July it emerges that regulations are needed to be made in a hurry it could not be done if the Houses had to agree them because they would not reconvene until some time late in September or early October. I find that argument specious 90% of the time because Administrations are good at anticipating legislation and regulations which it needs to have passed before the summer recess. This is confirmed by the fact that last week and this week the House sat for four days and sat late to take business, and the same will apply next week.
A second reason for accepting the amendment relates to amendment No. 17 dealing with section 35, which enables the authority to make a scheme or schemes for the regulation of adventure activities in the State. Again, the same, passive form of regulation is proposed. I am sure the Minister of State will confirm that where the authority which this Bill proposes to establish would adopt a scheme or schemes for the regulation of activities in the State, one of the things it would be careful to do would be to consult with the bodies involved in the activities concerned. They are listed in section 8, which deals with the scope of activities. If, for example, the authority decided to lay out a scheme for hill walking it would be sensible for it to consult and reach an agreement or understanding with the hill walking bodies about what the regulations should be so as to get everyone on board.
I have no objection to this approach but it would mean that in the regulation of such activities there would be real consultation of those involved in the business but no consultation with the Legislature. Laying regulations in this form is not consultation with the Houses. If my understanding is correct, Members only become aware that regulations of this kind are being made when they check the Order Paper to see what documents have been laid before the Houses.
It appears that schemes of the kind set out here are the meat of this legislation and they will be conditioned by the provisions of the Bill. In view of this they should be subject to some form of parliamentary scrutiny. I propose that instead of having this passive form of regulation we will provide for the active form, which is what the amendment seeks to do.
I suggest the Minister of State should not respond by saying that acceptance of the amendment would mean the Order Paper would be clogged with too much detail. The main area of regulation provided for in the Bill is set out in section 35. Apart from occasions when the Labour Party or my party is angry with the Government, there is no difficulty in getting the agreement of the Whips that routine items of business that do not cause a problem would be agreed without debate. If regulations are of no great significance and they are being made under the terms of this amendment it would be open to the Government to consult the Opposition parties on the basis that it was introducing a straightforward regulation and seek their agreement to have it taken without debate. This would establish the principle that there is a right of parliamentary scrutiny on matters which can from time to time be more important than the Administration is inclined to give them credit for. The Minister of State will not do violence to good governance or the objectives of the Bill if he accepts the amendment.
These amendments concern the same issue set out in section 3(4) and section 35(5). These are standard provisions that have been used in similar legislation. At present, most statutory regulations, including those which introduce statutory schemes, are laid before the Houses in accordance with procedures provided for in the section as originally drafted. These procedures allow any Deputy who wishes to oppose the regulation to put down a resolution to that effect within 21 days and the House would then consider the matter.
If the proposed amendments were accepted I, as Minister of State, would be obliged to put down a motion seeking Dáil approval for the regulations. This would mean that every statutory regulation being introduced would have to go through this procedure. This would be unnecessary and cumbersome and for that reason I do not propose to accept either amendment. We should not take on extra unnecessary work, regardless of whether it clogs up the system. I want this to be good legislation which will do what is intended of it.
I am not surprised at the Minister of State's response but I am saddened that he is the latest in a long line of office holders from every part who has supinely accepted what the bureaucracy puts up for its convenience. I am not being disobliging to the civil servants who work on these things, nor do I impute them with any bad motive. However, this is a bad way to make regulations. I have been fighting this with limited success for the past 20 years but I have occasionally managed to change a Minister's mind. However, there is no possibility of making any dent in the Minister of State's obduracy because he has not thought about the substance of his remarks. If and when I find myself in a position similar to him there will be a more active way of making regulations in legislation I introduce.
This is an important principle in terms of democracy and it is my intention to press the amendment. Yesterday I spoke to a colleague of the Minister of State who has been waffling about an alleged democratic deficit in Brussels and who holds the same obdurate views on this issue as the Minister of State. The Minister should not be allowed to get away with this kind of interference with proper democratic process without it being marked.
- Bell, Michael.
- Crawford, Seymour.
- Dukes, Alan.
- Durkan, Bernard.
- Sheehan, P. J.
- Alyward, Liam.
- Brady, Johnny.
- Byrne, Hugh.
- Collins, Michael.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Kitt, Michael.
- Moynihan, Michael.
Amendments Nos. 2, 3 and 4 are related and may be taken together by agreement.
I move amendment No. 2:
In page 8, subsection (1)(a), line 8, to delete “in areas more than 300 metres above sea level” and substitute “in remote or wilderness areas, being areas which are more than 5 kilometres or one hour’s walk from the nearest access road”.
This amendment is designed to improve the definitions contained in section 8. There are 13 such definitions and I am of the opinion that the amendment will clarify the position. I note from the amendment he has tabled that Deputy Dukes is of the same view.
I support amendments Nos. 2 and 3 in the name of Deputy Bell. In the event that the Minster of State was to accept amendment No. 3, the second definition provided in amendment No. 4 in my name would fall. I propose that we include parachuting and bungee jumping in the list of definitions contained in the section. I am not sure whether parachuting is regulated by any other authority and I raised that question on Second Stage. As far as I am aware, no reply was forthcoming in that regard.
As members will be aware, there are numerous organisations which arrange parachute jumps for charity. I am not stating that these organisations are careless in any way because they ensure the people make a certain number of training jumps before proceeding to make a major jump. However, there have been a number of accidents in which people were seriously injured, not because they were engaging in parachuting as a normal sport but because they were making parachute jumps for charity. Parachuting is undoubtedly a hazardous activity. I intend no criticism of the sport and I am sure parachuting clubs take their responsibilities seriously. There is, however, an old joke that pilots see no reason to jump out of a perfectly good aeroplane.
Bungee jumping falls into a slightly different category. I understand this craze originated in New Zealand. I recently read a report that two people were killed while bungee jumping because the tension on the ropes was not what it should have been. In my opinion, this sport should be investigated. I cannot imagine why people get a thrill out of launching themselves off platforms perhaps 200 feet above ground level in the expectation that they will be pulled up short just before impact and subsequently spend a number of minutes bouncing up and down on the end of an elasticated rope. I do not wish to be a spoilsport, however, by depriving people of their fun. The tension and elasticity of the ropes used in this sport are extremely important in terms of ensuring people's safety. In my opinion, bungee jumping comes under the remit of the Bill and should, therefore, be added to the list in section 8. If Deputy Bell's amendment No. 3 is accepted, I will remove the reference to raft building in amendment No. 4.
With regard to the point raised by Deputy Dukes, the Irish Aviation Authority is responsible for regulating parachuting. It is responsible, however, only for parachute jumps made from aeroplanes, not for those made from built structures.
I will deal with the three amendments together as they refer to the same section of the Bill. A number of Deputies referred on Second Stage to the definitions of adventure activities included in the Bill and questioned the absence of certain other activities from these definitions. This was to be expected because regardless of where we drew the line, activities which were left out were bound to be mentioned. The definitions in the Bill reflect only those activities which are widely provided in activity centres at present and for which approved standards have been established. I accept, however, the point made by Deputies that there are other activities which could be covered by the legislation. I noted, in particular, their suggestions for the inclusion of certain types of activities such as raft building, mountain biking, gorge walking and equine related pursuits. Deputy Dukes has provided for some of these activities in his amendment and Deputy Bell has proposed an amendment to the definition of hill walking contained in the Bill.
As already stated, there are activities which are being provided which can reasonably be described as "adventure activities" and could, in time, be included under the legislation. However, the difficulty is that many of these activities do not have recognised standards. It is my intention to ask the authority, immediately upon its establishment, to review the range of activities, current or in prospect, on offer at adventure centres and carry out appropriate professional risk analysis and assessment, following which it might recommend the addition of the relevant activity to the definition. I assure the committee that where further activities are proposed and following thorough and professional assessment by the authority, I will act immediately to have these included. I ask the committee to bear with me in not adding further to the list of activities in section 8, pending the review the authority will undertake as a matter of priority.
With regard to the specific proposal to amend the definition of hill walking, I am informed by the experts in this sector that most, if not all, of the highest peaks in Ireland are within five kilometres or one hour's walk from the nearest access road. Deputy Bell's amendment, if accepted, would, therefore, have the effect of taking the activity of hill walking outside the remit of the Bill. I am sure that was never his intention. For these reasons, I would prefer to retain the definition as originally drafted. I cannot, therefore, accept the proposed amendments.
Is the Minister of State saying that the activities to which the amendments refer will be examined by the authority?
Yes, the authority will be asked to investigate them. The points made by Deputies on Second Stage and today are excellent and could only serve to improve the Bill. The authority will carry out a risk analysis on these activities and when this is completed I would be inclined to include them if recommended by the authority.
I accept the assurance offered by the Minister of State.
I move amendment No. 5:
In page 8, subsection (1), line 29, to delete "for payment or reward".
The Bill sets out to apply the various regulations that are being proposed to operators who provide services for payment or reward. I do not know whether we should make that specification because there are adventure activities that are provided other than for payment or reward. This matter is dealt with at some length in the report of the interdepartmental working group, A Review of the Safety Regulation of Adventure Activity Centres in Ireland. The report states that there is ongoing discussion on the issue in the UK. It is pointed out, for example, that a number of schools engage in such activities where pupils are brought to various adventure centres and there is no payment for the services provided other than for reward. There would be a danger that a number of activities which take place now could not take place if the scope of the legislation were to include services provided other than for reward.
On the other hand it is not evident that children or others who participate in activities provided other than for payment or reward are any less entitled to have their safety considered a concern than people who pay. I am not convinced that the argument that some free services that are provided might not be if the amendment were made provides a good enough reason not to make the amendment. This is an issue of controversy and examination. Has there been further consideration of this issue since the interdepartmental working group produced its report two years ago?
The focus of the interdepartmental working group was to examine how safe adventure activities provision is in Ireland. Where facilities are provided for young people in particular it noted that the conduct of adventure activities is complex and wide-ranging in terms of participation, activities and mixes of activities, locations, objectives, formats and contexts. Activities range from limited solo excursions on land or at sea by individuals to fully developed, highly structured participation on a commercial basis in which the activity is overseen by instructors and an adventure centre management.
The group recommended in its report that the definition of "providers" in the legislation should primarily include those providing activities on a commercial basis. If the Deputy's amendment were accepted the definition would be widened to such an extent that even informal, unled family groups, not to mention voluntary groups such as the boy scouts, would be obliged to meet the requirements of the legislation. I assure the committee the protection of young people has been a priority of mine in promoting this legislation and it was the loss of young canoeists that tragically prompted the preparation of a statutory framework for safety in adventure centres. I share the committee's concerns that school children should have access to the best safety practices where they engage in adventure activities.
The committee will be aware where a school contacts an adventure centre to provide adventure activities to its pupils, the provision of such activities will be covered by the statutory safeguards in the Bill. I accept there will be scenarios where school staff will provide adventure training or instruction to pupils directly and that currently such provision is outside the legislation. Where, however, a commercial transaction is involved, that is, where the pupils pay the school or an individual teacher or other staff members directly or through the school management, such provision comes within the scope of the legislation. The school or staff member becomes an adventure activity operator for the purposes of the law.
I assure the committee I will ask the authority, which will include a representative of the Department of Education and Science, to consider as a matter of the utmost priority how to ensure school children have access to the highest safety standards through this legislation or any other provision. I do not accept the amendment for that reason.
I do not have a settled view on this issue and the Minister of State has indicated he also has an open mind on it. There is significant discussion of the issue in the interdepartmental working group's report. I will not press the amendment but it should be noted that the legislation does not provide for the setting of standards for adventure activities that are provided other than for payment or reward. That category applies to substantial numbers of young people, including school groups, boy scouts, girl guides and so on.
The legislation does not extend the provision of safety regulations or the setting of safety standards to those specific activities. People who provide activities will be concerned to ensure the highest level of safety but it will be done on a voluntary basis and there will be no statutory comeback if anything goes wrong. Will the Minister in his communications with the new authority ask it as a matter of priority to reflect further on how to deal with such a scenario?
That is a reasonable point and I am very anxious that the authority will make this issue a priority but the passage of the legislation will create even greater awareness, and sometimes awareness is more effective than legislation. I agree to ask the authority to move with haste on this issue.
I move amendment No. 6:
In page 8, subsection (1), lines 33 to 35, to delete all words from and including ", or" in line 33 down to and including "and (b)” in line 35.
The section defines "adventure activity operators" and makes provision for amendments to the definition later by way of ministerial order in consultation with the authority. It is a convenient way of dealing with the definition but does this mean there will not be supervision of the legislation by the Oireachtas? Will the Houses be consulted in any way? Ultimately, the Minister of the day is being given power to amend the legislation. Will Members have any say if they disagree with the ministerial order to amend the section?
I understand the thinking behind the Deputy's amendment but I have received legal advice that it adds nothing to the specific provision and it would be better to retain the provision as drafted. I do not propose, therefore, to accept the amendment.
I was concerned about this issue. In what way will the Oireachtas be consulted about changes made by ministerial order?
The only changes will be made to the definition. There are means by which such changes can be raised at any time.
Does the Minister believe that?
There has been a tendency recently to include such wording more frequently in legislation. We are almost at the stage where a private sector company will have to be employed in the Oireachtas Library to monitor statutory instruments and amendments to legislation as Members have no way of debating them if they disagree with their introduction. I wish to record that concern.
The legal advice is such that I cannot accept the amendment although I understand the thinking behind it which is reasonable.
I will withdraw the amendment if the Minister of State is satisfied that his legal advice covers the position adequately.
I thought so much of it that I had to obtain legal advice.
Amendments Nos. 7 and 11 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 11, lines 17 to 23, to delete subsection (5).
This deals with where a person is adversely affected and has the right to make a submission to the authority on the matter. I am interested to hear the Minister of State's views on the amendments.
These sections provide that investigations or inquiries into accidents which occur in the workplace or involve marine related activities at adventure centres can be undertaken only by the authority where the consent of the Minister for the Marine and Natural Resources is obtained along with the consent of any other Minister as he or she considers appropriate. This is to ensure that, while the authority may conduct such investigations, there will not be any duplication of work with the National Authority for Occupational Safety and Health, commonly known as the Health and Safety Authority, or the Marine Casualty Investigation Board. The committee will agree that these bodies would be considered the competent professional authorities to carry out such investigations. Where it is agreed that the Adventure Activities Standards Authority can play a role in such investigations, that authority will be empowered to do so.
Deputy Dukes raised the point on Second Stage. I am happy enough with that explanation.
Amendments Nos. 8 and 10 are related and both may be discussed together by agreement.
I move amendment No. 8:
In page 12, between lines 4 and 5, to insert the following subsection:
"(7) The provisions of the Freedom of Information Act, 1997, shall apply to draft reports prepared and to observations furnished in accordance with this section.".
The objective of these two amendments is to make it clear that the provisions of the Freedom of Information Act shall apply to draft reports prepared and observations furnished. The procedure set out is fair to the people concerned in that, in investigations to be carried out, persons likely to be adversely affected are given an opportunity to comment and it is up to the investigating authorities to decide whether to include those comments in their report.
The procedure is also one in which there is the possibility of an adversarial situation arising where a certain finding emerges from a report and a person affected disputes it, has a different version or wishes to add further information. If the authority decides to alter the draft report before publication, that is fine as it is free to do so, but it can also decide not to alter its draft report. It can decide not to take account of the observations made or it may, because it has the last word, decide to publish the observations and its response to them. That is the sense of section 17(5)(b).
Other people have an interest in this because they are concerned in a more general way about the safety of these activities. The reports in question in section 17 and in section 18 concern an assessment with objective findings of the safety of various activities. The more information on these matters that can be made available to the public, the better. If the Minister of State can tell me and has specific advice to the effect that it is already clear the provisions of the Freedom of Information Act apply to this, I will be happy. If not, I would prefer to maintain the amendment and ask him to establish the position and tell us on Report Stage what is going on.
This emerged in a discussion about the Ombudsman Act by the committee yesterday. As a result of a new structure and system being set up which did not exist when the Act came into force, to ensure the provisions would apply, the Minister for Agriculture, Food and Rural Development proposed a specific addition to the Schedule of the Act. I do not know if a similar situation applies to the Freedom of Information Act. I would like to know because the content of any examinations carried out under the provisions of the authority we establish under the Bill should be accessible in the widest possible way to the public.
Amendments Nos. 8 and 10 concern the same issue. I agree with Deputy Dukes that the provisions of the Freedom of Information Act, 1997, should apply to the Adventure Activities Standards Authority. I have received legal advice that the proper procedure to achieve this is through a provision in the Freedom of Information Act which allows for the addition of bodies to those already subject to the Act. This can be done by regulation made under the Act. In the circumstances, it would be more appropriate to have the new authority included by way of such regulations and not by a provision contained in the Bill.
I assure the Deputy that I do not have any difficulty in principle with the Adventure Activities Standards Authority becoming subject to the Freedom of Information Act or, for that matter, the Ombudsman Act, if it is appropriate. My Department will liaise with the Department of Finance to arrange for the authority to be included in the appropriate regulations made under these Acts as soon as the authority is established. Consequently, I do not propose to accept the amendments.
I thank the Minister of State. Is he in a position to tell me what form of regulation will be required to do this? Will it be the active or passive one?
It will be brought in by the Department of Finance using a statutory instrument of which the Deputy would be well aware.
In other words, it would be one of these instruments laid before the Houses of the Oireachtas which would come into effect unless annulled by the Houses within 21 sitting days.
That is it.
So much for democracy and public information. I thank the Minister of State for the information and I am happy to accept his assurance that he will proceed as stated on the Freedom of Information and Ombudsman Acts.
I move amendment No. 9:
In page 12, subsection (2)(c)(iv), line 37, after “oath” to insert “or affirmation”.
This amendment seeks to strengthen subsection 2(c).
The additional requirement of an affirmation as proposed by this amendment is not necessary as the administration of a note by a tribunal of inquiry is sufficient for the purposes of the Bill. This amendment would add little to the provisions of the Bill. However, the Deputy's point is well taken.
If the Minister of State is satisfied and that is on the record, I will withdraw the amendment.
This section proposes the introduction of a charge for the services being provided. On Second Stage I objected to the principle of imposing a charge. I am not sure that any compelling case has been made for making a charge for the services being provided by the proposed authority. There are many precedents for making charges for services of this kind. The Minister of State will probably point out that the Irish Aviation Authority makes certain charges for the provision of its services and so on. However, to the best of my knowledge where these charges are made, they are charged to commercial organisations which serve people who are prepared to pay a substantial price for the services.
The proposed authority is not in the same category. I will refer to the list of adventure activities in section 8. In some of these cases people pay quite substantial fees to participate in these sports. For example, the kind of fees paid for hill-walking and orienteering are modest. I do not know of the situation regarding caving - speleology is not one of my passions. People pay modest amounts of money for dinghy sailing and rather less for kayaking and canoeing, in which young children frequently participate.
Scuba-diving and snorkelling can often involve a substantial amount of money. I gather that archery equipment can be expensive, but is durable. As regards rock-climbing, people would need an array of equipment. I do not know what equipment one needs for abseiling, but one requires pitons and so on.
The charges for these sports are not in the same category as those imposed for safety services by, for example, the IAA which deals with commercial airlines and airports. Such activities involve a much larger volume of money than any of the sports listed in the Bill. The sports activities contemplated by the Bill could be defined in popular parlance as minority sports in the sense they do not have the same level of participation as the GAA, soccer, rugby or more popular sporting activities. However, these minority sports have ambitions to increase their participation rates. The sailing confraternity always likes to attract new members as do hill-walking clubs.
I would not wish to see access to these activities becoming more expensive than it has to be. These are public participation sports which, in some ways, are not too far removed from what people like to do in an unorganised way. I cannot see any obvious justification for making a charge for services we intend to provide in the interests of public safety. This has to be the key to our approach to this issue. We are talking about assuring the safety of people during activities which are not far removed from everyday activities.
I am not a mountain walker, but I enjoy walking in the mountains and would do more of it if I had the time. However, our profession does not give one much leeway for such activities.
Another four years in Opposition would give the Deputy plenty of time.
We have to spend so much time correcting the mistakes made by this awful Government that we do not have time to amuse ourselves. These activities are not in the same class as other safety activities provided to the public for which large fees are quite properly charged. I am not convinced that it is appropriate to impose a charge for the provision of these services by the authority. We do not know what the costs will be as they are not stipulated in the Bill. However, the explanatory memorandum estimates that the authority's costs could be in the region of £300,000 per year for staff, agency payments, board expenses, promotion and the lease of premises. I do not think £300,000 is a large amount of money to expect from the Exchequer regarding these activities. However, £300,000 per year could be quite an amount of money for adventure sports centres to collect from clients. I am not sure it would be justified to expect these customers to pay this additional amount of money.
This issue was included in the report of the interdepartmental working group. To the best of my recollection, it reported that operators expressed the view that if they had to pay fees to the authority, they would probably not find it worthwhile to continue in business. They also pointed out that the effect of charging a fee could reduce the public's access to these kinds of activities.
The Bill deals with adventure activities all of which involve an element of risk. That is why we are discussing safety. However, they are healthy activities which develop physical strength and fitness. Many of them are rightly presented as having benefits other than purely physical health or physical fitness in that they help to instil discipline, systematic thinking and so on. Orienteering is said to develop various kinds of talents, as does dinghy sailing and so on. It is said that rock-climbing is character forming, but I cannot imagine how as I would be terrified. However, these activities offer many benefits and I do not see that for the sake of a mere £300,000, it would be worthwhile to put at risk the provision of these services to a wider public. For this reason I oppose the section.
I concur with the sentiments expressed by Deputy Dukes. These are not high profit margin activities. The section provides that the authority "may" impose charges and thereby provides that this may happen. This is akin to saying a charge could be imposed for health and safety within industry where such matters are effectively operated by the Department of Enterprise, Trade and Employment. I got the impression from the Minister on Second Stage that charges would not be made. I do not see the necessity to provide for such charges and concur with Deputy Dukes that the section should be deleted.
I understand the Deputies' reasons for opposing this section and I noted in detail the concerns expressed on Second Stage in regard to the authority being allowed to impose charges for the provision of services. However, the Bill's provisions in this regard are similar to those contained in the safety, health and welfare at work legislation of 1989 which allows the Health and Safety Authority to make such charges as it considers appropriate or necessary. The inclusion of such a provision in this Bill intends that any charges made by the new authority would be designed to offset administration costs and would not be so prohibitive as to discourage operators who could, for example, provide services to young people outside the safeguards of the law, from registering with the authority.
I accept that the Health and Safety Authority does not at present charge for its services and I assure Deputies that their views will be considered when the new authority is established. The question of whether to invoke charges is being addressed by the Department. Operators will probably apply for funding from various Departments and will probably receive it on the basis of the fine work they do. We are not in the business of robbing anyone. The charges which may apply will be such that nobody will be discouraged.
If I understand him correctly, the Minister of State seems to be suggesting that charges may not be applied.
That could well be the case.
If that is the case, the section is not necessary. If it is intended to apply charges, I object to that intention because I do not believe there is a case for such charges. The Minister referred to the health and safety at work legislation which he stated provides for the possibility of making charges, although the provision has not yet been enforced. I do not believe in putting redundant provisions into legislation and, therefore, I oppose the section.
In the words of a famous national politician, we do not know what will happen down the line. We would be wise to provide for such charges in the event that they should prove necessary.
The person to whom the Minister refers is in a position where she must agree with him but I am not obliged to do likewise.
The Deputy did so in regard to the Tallaght strategy in 1987.
That was completely different. Unlike the current temporary little arrangement, our arrangement worked.
The Government celebrated its fourth birthday yesterday.
- Brady, Johnny.
- Byrne, Hugh.
- Collins, Michael.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Kitt, Michael.
- Roche, Dick.
- Bell, Michael.
- Crawford, Seymour.
- Dukes, Alan.
- Durkan, Bernard.
- Neville, Dan.
- Sheehan, P. J.
Amendments Nos. 12 and 13 are related and may be discussed together.
I move amendment No. 12:
In page 14, subsection (5), lines 17 and 18, to delete "and may be removed from office at any time".
Section 21(5) reads "The first Director shall be appointed, and may be removed from office at any time, by the Minister; each subsequent Director shall be appointed, and may be removed from office at any time, by the Authority with the consent of the Minister." I do not understand the reason for that provision.
There is a similar provision in regard to members of the authority in a later section. Subsection (3) specifically provides for a director taking office. It reads: "The Director shall hold office under a contract of service in writing containing such terms and conditions. . . as may be approved of by the Minister with the consent of the Minister for Finance." It appears that any reasonable and fair contract of service should include a specification of the conditions under which the subject of the contract can be removed from office, and that if the contract is properly and fairly written, there should be no need for a provision such as that contained in subsection (5), that the Minister can remove that person from office at any time.
Other legislation provides that people may be removed from office for stated reasons, but that is not stated in subsection (5), which appears to be an unfair and unnecessary provision. If the director holds office under a contract of service, that contract of service should specify the conditions under which that office may be terminated or the person may be removed from office. To include another totally discretionary provision which allows the Minister to remove the director from office at any time is oppressive, unfair, illegal and probably unconstitutional. It is a most extraordinary provision which I do not understand and that is why I tabled the amendment.
While that provision refers to the first director, it then states that each subsequent director shall be appointed and may be removed from office at any time by the authority with the consent of the Minister. I assume each subsequent director would have a contract of service because subsection (3) refers to the director at any given time, not just to the first director. The subsequent directors should also have contracts which specify the conditions and circumstances under which they can be removed from office. As I see no reason for including this extraordinary provision in subsection (5), I propose its deletion.
Is the provision contrary to the Unfair Dismissals Act? I assume the director would have a contract but any contract of service could not overrule the conditions of the Act. We are including a provision in the Bill concerning a State employee who I assume would be taxed and insured in the normal manner and would, therefore, be in the category of A1 contributions. Alternatively, the contract could be outside and not covered by the Unfair Dismissals Act. What recourse would the person involved have if he or she were to be dismissed, especially as no reason has to be given? To whom would he or she appeal: the Minister or the Dáil? I seek clarification.
I will deal with the two amendments, Nos. 12 and 13, together. They relate to provisions which are standard enabling provisions which reflect those in other similar legislation and should not come as a surprise to either Deputy. While I hope they will never have to be invoked, I am advised that such provision is necessary to deal with possible extreme circumstances which would necessitate the removal of directors from the authority. I would not like to see a situation where a director could refuse to step down and there would not be any effective way of removing him or her from the authority. As this body will have primary responsibility for regulating safety in the sector, such a situation would severely impact on the credibility of the authority. As the amendments would effectively mean that I, as Minister of State, would be prevented from taking reasonable and responsible action in the event of such a situation occurring, I do not propose to accept them.
The section in the Bill is a standard one which provides for the appointment of a director of the authority and his or her term of office. It is similar to section 18 of the Safety, Health and Welfare at Work Act, 1989, which provides for the appointment of a director general to the National Authority for Occupational Safety and Health, commonly known as the Health and Safety Authority, and section 7 of the Marine Institute Act, 1991, which provides for the appointment of a chief executive to the Marine Institute.
Section 18(2), which relates to the National Authority for Occupational Safety and Health, reads:
The first Director General shall be appointed, and may be removed from office at any time, by the Minister; each subsequent Director General shall be appointed, and may be removed from office at any time, by the Authority with the consent of the Minister.
I am not one bit impressed by that. It suggests that whoever the Opposition spokespersons were at the time those two Acts were passed were not doing their jobs as they should have been done. Can the Minister of State indicate if there is any case where such a provision has been made in the statute establishing an authority where the director has been removed in accordance with the provisions analogous to this?
We do not know of any case and, as I said, it would have to be in extreme circumstances. The Deputy would have to agree that, if extreme circumstances applied, we would fail in our duty if we were not able to remove the person concerned.
That may well be the case. It appears, however, that no such extreme circumstances have yet manifested themselves. Although the Minister of State quotes precedent for this type of provision, I am sure that given enough time I could find precedents for a different provision which states that a person may be removed for stated reasons. That is certainly the case for the Judiciary. It is wrong that, if a person is employed on a contract of service, that contract freely entered into by the two parties should not include an appropriate provision for determination of that person's employment in certain sets of circumstances.
This provision in the Bill could be used to remove a member of the authority who did not agree with the Minister, perhaps for good reasons. It could be used to remove a person from the authority because the Minister did not like him or her. We should not have oppressive legislation of this nature. Ministers should not have that type of arbitrary power.
I do not suggest that, once a person is appointed a director of the authority, he or she should be there forever or until they reach retirement age. I can envisage circumstances in which a conflict would arise but those circumstances should be provided for in the contract of service which that person has with the authority. It is not desirable that this type of arbitrary authority should be given to the Minister.
The fact it has not been necessary to remove anyone to date does not mean it will not happen in the future.
It is not rubbish. It could well happen in the future. There is no guarantee that everyone appointed will behave in an appropriate fashion. I wish I could guarantee it, as I wish the Deputy could, but we cannot.
Other ways have always been found.
It could well happen. We are making provision for that possible date. If it were not provided for in legislation and what we discuss were to happen, we would find ourselves in a much more difficult position. It would have to involve extreme circumstances and I know the Deputy believes that. Then and only then would it happen.
It has nothing to do with a Minister's likes and dislikes. There are people in my Department I do not like. I am sure it was the case when the Deputy was a Minister. However, they are all good people and just because they do not agree with me does not necessarily mean they should be fired. I do not agree with that. Sometimes even I and my party make mistakes and, although it is seldom, we accept it.
I will not detail any of the cases where requests were made by members or former members of the Minister of State's party to various people to stand aside or consider their position. In one celebrated case, if I remember correctly, the offer was refused but there was not an arbitrary power to dismiss any of the persons concerned. The Minister of State does not have an arbitrary power to dismiss anyone in his Department.
That is known.
That is not the point. The Minister of State does not have an arbitrary power nor should he. If a contract of service is being drawn up and it is perceived that there may be extreme circumstances in which that contract might be terminated or the Minister might wish to terminate it, provision should be made for this in the contract. It is neither good practice, good industrial relations nor good politics to introduce an arbitrary power of this nature.
The Minister of State has not been able to tell me of any case where such a power as this has been used. If such a power has been included in previous legislation, it has proved so far to be redundant. I cannot think of any case where the Minister of State can point out to me that a director or a person in a similar position in any body established until now has found himself or herself in the type of position where the only thing that has prevented him or her from being fired has been the lack of a provision of this type in legislation. This is an arbitrary power being given to a Minister and I object to it. It is undesirable in legislation of this nature.
I hope it never has to be invoked but it is always a possibility. Whatever about past Opposition spokespersons or parliamentary counsel, the Dáil passes good legislation. The fact that there is a precedent for doing something does not mean that it should be done again. This good legislation is based on previous legislation and will stand the test of time.
I move amendment No. 14:
In page 18, subsection (1), line 15, to delete "A person" and substitute "Save in accordance with law, a person".
This is a technical amendment aimed at strengthening the meaning of the section, where there is a prohibition on someone giving information on a statutory body. There are times when a person would be entitled by law to make a statement on behalf of the authority. What is the Minister's view on that?
My legal advice is that the additional wording is not necessary and adds nothing of substance to the Bill. I do not accept the amendment. Well spotted, but the legal advice is that it is unnecessary.
Is the Minister accepting the amendment?
Is the Minister stating that the legal advice says it is not necessary?
The advice is that the additional wording as proposed is not necessary.
Very well, if that is the case.
I wish to raise a hypothetical issue. Fianna Fáil's partner in Government and the Labour Party support a whistleblowers' charter, as it is called. I have not heard the Progressive Democrats blowing the whistle on that for a while. The Labour Party has a Private Members' Bill awaiting discussion. If such legislation were passed, would the section in this Bill or the whistleblowers' charter prevail? If such legislation were passed, to which the Progressive Democrats is committed, Deputy Bell's amendment would help to clarify the situation because it would then read "save in accordance with law, a person shall not without the consent of the authority". Someone who believed that something should be revealed to the public which the authority did not want revealed could claim that he or she was acting in accordance with the whistleblowers' charter or the relevant legislation.
A recent book written by a former official at the Department of Foreign Affairs is technically in breach of the Official Secrets Act, 1963, but what it says is so banal and trivial that no one is worried by it. However, if something more important was said, the Act would apply and the person involved would be muzzled. If a whistleblowers' charter existed, the person might be entitled to invoke the public interest as the reason for making things public. In such circumstances, would Deputy Bell's amendment not be appropriate?
With the great relationship enjoyed by the Government parties, there is no need to venture into hypothesis.
I am not happy with the Minister's explanation. I assume the legal advice is from the Attorney General's office. There are times when people in public office must say something about a situation that arises and they cannot be gagged all the time. This section as it is written means that nothing could be said publicly about anything, but if the Minister is satisfied with his legal advice, I withdraw the amendment. However, I am not happy with it.
I move amendment No. 15:
In page 18, subsection (7), line 43, to delete "carry on an adventure activity" and substitute "act as an adventure activities operator".
This is also a technical amendment to write the sentiments expressed in subsection (7) in a different way. What legal advice did the Minister receive on this?
The Deputy almost had us living with our legal advisers.
I have the Minister's legal adviser on my back all day.
It is not that he does not like the Deputy. He states that the Deputy did his homework. The legal advice is that the amendment is unnecessary and adds no substance to the Bill's provisions. I prefer the drafted wording.
Amendments Nos. 18 and 23 are related and may be discussed together by agreement.
I move amendment No. 18:
In page 22, lines 45 and 46, to delete paragraph 5.
These amendments are manifestations in the Schedule of what was discussed previously about the arbitrary removal from office in amendments Nos. 12 and 13. It is tempting to deal with it again but as the matter was concluded in the body of the Bill, I will not do so.
Amendments Nos. 19 and 20 are related and may be taken together by agreement.
I move amendment No. 19.
In page 23, paragraph 8(e), line 21, after “members” to insert “of whom two shall be from the private sector and two shall be from the public sector”.
I have been informed that during discussions which preceded the Bill there was an understanding that there would be a provision for participation of both private and public sector operators in the nomination of members to the board. These amendments seek to give effect to that. I have had representations to the effect that people involved in the sector believe that this kind of distribution was agreed.
I understand why the Deputy puts forward these suggestions as regards membership of the new authority. Since publication of the Bill my Department has received a number of comments from within the sector as to the membership of the authority. In some instances suggestions have been made as to the appropriate bodies or organisations which could provide suitably qualified members. The establishment of the new authority is a major initiative which will introduce a regulatory system that will match standards anywhere else in the world. It is important in setting up this new authority to have a membership competent to discharge the duties assigned to it and to have a chairperson capable of ensuring the efficient operation of the authority.
It is essential that the choice of appointments receives careful and proper consideration. I would not wish to have the scope of my choices confined in such a way as might be the case as a result of these amendments. Membership of the authority has been structured in accordance with regulations made by the interdepartmental working group and endorsed by the Association for Adventure Sports in the blueprint document it produced for the entire sector. I would welcome nominations for the authority from the sectors mentioned and I will consult with these sectors to obtain the balance as suggested by Deputy Dukes. Full and careful consideration will be given to all nominations received before appointments are made. For that reason, I do not propose to accept the amendments.
Amendments Nos. 21 and 22 are related and may be discussed together by agreement.
I move amendment No. 21:
In page 23, paragraph 8(i), line 36, to delete “four” where it firstly occurs and substitute “6”.
This amendment is self-explanatory. It simply asks that membership be extended from four to six. That would include equality representation for female members from four to six. Generally State and semi-State boards have in the region of 12 members. Eight seems too few. I am interested to see whether the Minister's legal advice supports me this time.
I got so tired listening to the legal advisers saying "No" to Deputy Bell that I am pleased to accept these two amendments.
I move amendment No. 22:
In page 23, paragraph 8(i), line 36, to delete “four” where it secondly occurs and substitute “6”.
I move amendment No. 24:
In page 24, paragraph 15, line 25, after "imprisonment" to insert "of over 6 months".
This is a simple amendment. I agree we would not want hard-nosed criminals on State or semi-State boards but nevertheless there should be some leeway for a very minor offence. Technically a person could break the law and be in prison for a month or two. Some people have been jailed for minor offences such as not obeying an order of the court or have been deemed to be in contempt of court. Even some Members of the Oireachtas have spent a few days or weeks in prison over the years for various reasons. A six month sentence would not be for a major offence. I know a fellow who spent six months in jail because he could not pay his refuse charge. He should not be debarred for life from being part of a State organisation.
I understand Deputy Bell's point, but again I have received legal advice that the provision should remain as originally drafted. I cannot, therefore, accept the amendment.
When is it proposed to take Report and Final Stages?
On Tuesday next.