I welcome the Minister and her officials. We are here to consider the Aviation Regulation Bill, 2000 [Seanad]. We have agreed to wait until 1 o’clock before reviewing progress.
Aviation Regulation Bill, 2000 [Seanad]: Committee Stage.
I thought we had arranged to have two sessions.
We have arranged two sessions, but we want to review progress. We will take a sos between 1 p.m. and 2 p.m. Is that agreed? Agreed.
The minutes of the meeting of 7 September——
I know the point the Deputy is going to raise, but that must be done at a meeting of the joint committee.
Amendment No. 1 is in the name of the Minister and amendments Nos. 26 and 43 are consequential. Amendments Nos. 1, 26 and 43 may be taken together by agreement.
Has everybody received the groupings of amendments?
I move amendment No. 1:
In page 5, subsection (1), between lines 22 and 23, to insert the following definition:
" 'airport authority' has the meaning assigned to it by the Act of 1998;".
These three amendments were given to us by the Office of the Parliamentary Counsel to the Government. Amendment No. 26 is as follows: "In page 12, subsection (7), lines 4 and 5, to delete "(within the meaning of the Act of 1998)". Amendment No. 43 states: "In page 18, lines 16 to 18, to delete subsection (1) and substitute the following. . . "
Amendment No. 2 is in the name of Deputy Jim Higgins. Amendment No. 3 is an alternative and amendments Nos. 2 and 3 may be taken together by agreement.
I move amendment No. 2:
In page 5, subsection (1), between lines 23 and 24, to insert the following definition:
" 'airport user' means any person responsible for the carriage of passengers, mail or freight to or from an airport;".
The original draft of the Bill contained a definition of "airport user" and I want the Minister to explain why that has been deleted. The Bill includes definitions of airport, commission, commissioner, etc. It seems logical that there should be an agreed definition of what constitutes an airport user.
There is a need, because of the difference of opinion as to what an airport user might be, for it to be defined. The original Bill included a definition and the definitions suggested by myself and Deputy Higgins are fairly similar, and are also similar to what was contained in the original Bill, although they are somewhat more expansive. It would be worthwhile to include such a definition. It isnot a controversial issue but it would clarify matters.
Deputy Higgins is correct in saying a definition was included in the first draft of the Bill. We had a lively debate on the matter in the Seanad - I think it might have involved Senator Taylor-Quinn, although I am not saying the Deputy should be restricted because of that. He is his own person and is entitled to table an amendment. We changed the Bill as a result of that good debate in the Seanad.
The amendment tabled by Deputy Higgins states that "airport user means any person responsible for the carriage of passengers, mail or freight to or from an airport." If that were to be taken literally, it would include buses, taxis, cabs, etc. which carry people and which have nothing to do with the regulator. Deputy Stagg's amendment states that an "airport user" includes "a person who attends the airport." The definitions are entirely different as I read them. The first means any person who is a carrier to or from the airport, which includes buses, trains - if such a service is provided - cabs and taxis, while Deputy Stagg's amendment talks about a person in the airport for a purpose or a person dependent on the airport for any commercial or non-commercial purpose. I know the amendments have been grouped together, but they are entirely different. Perhaps the Deputies would like to tease them out a bit.
I would prefer if the Minister accepted the necessity to clarify the matter. "Airport user" as a term is used regularly and a definition is necessary so that people know exactly what it means. I am happy to leave the definition up to the Minister and her advisers in the Department. However, it is necessary to have a defini-tion because Deputy Higgins and I interpreted the term quite differently.
Was Deputy Higgins referring to taxis, cabs and buses?
Essentially, I took the definition contained in the original draft of the Bill, that defined "airport user" as any person responsible for the carriage of passengers, mail or freight to or from an airport. I acknowledge that airports users are viewed essentially in terms of airlines rather than taxis, buses etc.
We included the words "by air" in the original draft.
I would be happy to accept Deputy Stagg's definition but I agree that the words "airport user" should be defined in some way. I would be prepared to withdraw my amendment if the Minister would consider introducing an amendment to this end. It would be a major omission not to include such a definition in the Bill.
I presume the words "to or from an airport" in Deputy Higgins' amendment refer to carriage to or from an airport by air.
The original draft included the words "by air". Deputy Higgins' amendment could be interpreted to mean how people physically get to an airport. That could occur in a number of ways.
If we withdraw these amendments, will the Minister consider the matter prior to Report Stage?
What is the position in regard to ground staff and services?
A number of later amendments define those issues.
Is amendment No. 2 being withdrawn?
Yes, on the basis that I will examine the matter prior to Report Stage.
On the section, when was the commissioner appointed and, in view of the fact that the legislation has not yet been enacted, what have he and his office been doing?
I have only met the commissioner once and cannot really tell the Deputy what he is doing. However, I understand he is very busy and that he has done a great deal of research, writing and consulting.
Is he officially on the payroll?
Yes. He is working very assiduously.
I do not doubt that.
We are introducing legislation here to enable the Minister to appoint a regulatory commission or a regulator. The commissioner has already been appointed although the terms of reference for his appointment etc. are set out in legislation which has not yet been passed. This is a unique situation. We have been gazumped by the Government 's decision to appoint a person to a position which does not yet exist. It is somewhat strange that the commissioner's salary can be justified in this situation. I presume it was intended to introduce this legislation at an earlier date and I appreciate that the Second Stage Dáil debate was a very lengthy one. That said, the commissioner is in situ. If we amend the proposed manner of the commissioner’s appointment as we go through the Bill, will it be necessary to sack him?
I do not intend to start the new year by sacking anybody. The commissioner will be subject to examination by the Comptroller and Auditor General. That is enshrined in the Bill which also provides that the commissioner will be obliged to come before this committee.
That does not really answer my question. The commissioner has been appointed without legislative authority. How did that come about?
The Civil Service Commission appointed the commissioner. I do not know whether the Deputy is insinuating that I had anything to do with his appointment but I did not even meet the man prior to his appointment.
I was not making any such insinuation.
I was provided with the result of the competition run by the Civil Service Commission and I brought that to Cabinet where it was approved.
Does the commissioner have a contract?
He is an established civil servant.
Does he already have full superannuation rights even though we are enshrining such rights retrospectively through this legislation?
Yes. I felt it was only right that the superannuation rights would be retrospective.
The commissioner has not been able to do his job to date.
I understand he has researched and consulted widely.
The situation is an unsatisfactory one.
I wanted to raise some points about the office, its location etc. but I felt those might be more appropriately dealt with under section 5 rather than under the definitions section. If we are to discuss the matter at this stage, I would like to know where the commissioner's office will be located, the number of people working in the office etc.
As the Deputy stated, those questions would be more appropriate to section 5.
I am anxious that the office would be established outside Dublin although I presume it is currently located in Dublin.
I think it is.
I would prefer to see it being located in Ennis or Athlone. Will the Minister tell us where the office is located and how many personnel are employed there?
I wanted to ask a question on this section. As I understand it, this Bill is more or less a copy of a similar Bill in the UK. Several committees in Westminster are currently examining that legislation which is to be updated because it is out of date. What will happen when our neighbours, whose aviation regulation legislation is entwined with ours, introduce new legislation in this area? We are starting out at a disadvantage in that we are introducing legislation which has been deemed more or less extinct in the UK.
The UK introduced airport regulators in 1988. I spoke with the signal workers and Deputy Daly about this issue. The UK is reviewing airport regulations and has not come to any conclusions on amendments and so on. It has just announced that it will bring forward a White Paper. As far as I am aware, it has not as yet produced a White Paper. It is a long way from making changes and this is our legislation.
I accept Deputy Stagg's point. It is not unusual that these things take place before the statutory framework is put in place.
Other positions - not the regulator - relate to an unestablished civil servant. It was an interim arrangement.
I move amendment No. 4:
In page 6, line 40, after "Act" to insert ", provided that the Minister shall not make an order under this section until he or she has given comprehensive policy directions to the commission pursuant to section 10”.
David Byrne's speech was very important. He spoke about the difficulty of people empowered by the electorate giving the power to others without the electorate's say so. Effectively, when we appoint a regulator, we are handing the power of the Oireachtas to an unelected commission or quango - perhaps that is an abusive term for the regulatory system. There is a great deal of worry about how this can be made accountable. One of the key points in the former Attorney General's speech was that the Minister or the Dáil could not hand over authority to the regulator without specifying in detail the policies under which the regulator was to operate. It is very important that this be done. My amendment seeks to facilitate Mr. Byrne's point with which I believe the Minister agrees. The wording, "The Minister shall by order appoint a day to be the establishment day for the purposes of this Act" will be improved by inserting, "provided that the Minister shall not make an order under this section until he or she has given comprehensive policy directions to the commission pursuant to section 10”. The case stands on its merits. I know the Minister appreciates the point I am making and I ask her to accept my amendment.
I have considered the issue. David Byrne spoke with me about the telecommunications regulator, Etain Doyle, who, under the terms of the Act, did not consider she should attend here at a meeting. However, good sense prevailed, she attended the meeting and was most competent and confident. David Byrne spoke to me about the Act which did not have accountability in relation to the regulator. I suggested this was wrong and the Deputy admitted it was very wrong.
It was not my Act. It was the crowd around the Minister now who drafted it.
The Deputy brought it to the Dáil.
It was just handed to me; I was just the boy.
That is a great negation of the Deputy's responsibilities.
I was the junior Minister; the Minister knows who the senior Minister was.
We all agree that was wrong and the telecommunications Bill which is being introduced will rectify that. The energy commissioner, Tom Reeves, is accountable to the committee, as will be this commission. We are strengthening this power as we go through the Bill. The Deputy's amendment is seeking that if the Bill becomes an Act, I cannot make an establishment day until I tell the commissioner his orders or whatever. I believe this is unduly prescriptive.
Pursuant to section 10?
Yes, and the Deputy asked for it to be strengthened. Therefore, I cannot accept the amendment.
Section 10 is very general.
The Deputy has tabled amendment No. 5 to section 5.
That is more prescriptive. Under section 10, which is very vague, the Minister may give general policy directions, including directions in respect of the contributions of airports.
Perhaps the Deputy will clarify that issue when we get to it.
If we lose the opportunity to say that the Minister should do something about policy before the establishment order is made, if the order is made and the commissioner is free, with authority——
I do not mean to cut across the Deputy. The Minister of the day retains the power to give policy direction. That is included in the Bill.
Mr. Byrne argued effectively that the commissioner should not be given the authority until he knows what is the Minister's policy. The only way he will know the Minister's policy is if she makes policy orders.
Yes, but policy will change. I am thinking of Etain Doyle and Tom Reeves. I have met Tom Reeves once since his appointment, but Etain Doyle comes here approximately every three months and more or less outlines her agenda for three or four months or whatever. I have informed the Cabinet about a couple of matters but I do not tell her what to do. The commission should be independent.
That is not the point I am making. I am making the point that the Minister currently has the authority which she will be giving to this man who will be appointed when the Act is passed. To validate that and to ensure that he is aware of the Minister's policies, it is necessary for her to indicate to him in some detail what her policies are. The best way to do this is probably by order. In the absence of this, he has no idea of the Minister's policies and he does not have to inform himself. It is not laid down that he must inform himself of Government policy.
This is mentioned throughout the Bill. If I were to go ahead with the section, it would mean the Bill could not come into force until I had laid down policy. The purpose of regulation is to strike a balance between independence, which they should have, and the retention of accountability, with which I fully agree, and transparency before they come before committees or wherever to tell their tale. They require a measure of independence and I am not minded to accept the amendment.
I support the amendment. The Minister said she is not minded to accept the amendment. Would she be minded to accept it at a later stage?
Can I finish? This is a worthwhile amendment in terms of its spirit, whatever about the section to which it applies. We have some experience of how regulators operate and, for the sake of their work as well as the work being done in general, there is a need to avoid needlessly drawing the regulator into political controversy. That happens when the regulator, for whatever reason, gives the appearance of going off on a solo run or misunderstands the Government's policy. This is in nobody's interest and it would be worthwhile if the Minister, who is accountable to the electorate, were to clearly state over the next while the policy objectives in the public interest, and not in the commercial interest. This is the balance which has to be struck.
I take the Deputy's point. If he looks at section 33 - I know we should not be doing this, Chairman——
It is okay if it is in the context of explanation.
Section 33, paragraphs (a)to (i), more or less sets out the parameters ofpolicy.
They are regulatory objectives. Is it not the case that no Government has developed aviation policy? Is that the reason for the Minister's reticence? I have never seen aviation policy set out in a White Paper. The Minister referred to the British Parliament but there certainly has not been any policy here. Policy is made up from time to time as events happen. The Minister may not accept what I am saying, but her reticence is born from the fact that we do not have aviation policy. Is that the problem?
It is not my problem.
The Minister is claiming that she has an aviation policy.
I never said anything. The Deputy is claiming that this is the reason for the amendment. Deputy Stagg put forward the reason for the amendment, which, as I heard it, has nothing to do with a White Paper.
I did not say that either, but the Minister has no aviation policy. Is that not the problem? The Minister would accept the amendment if she had an aviation policy.
I am minded not to accept the amendment. However, this is up to the members of the committee.
I am not finished. We are dealing with the heart of the Bill and of the regulatory process in a number of areas. We are seeking to improve it from the first bad attempt we made in relation to the Telecom regulator.
She was not bad.
I mean the regulator.
Each time we have had legislation since then we have improved it. I would like to see the Telecom regulatory legislation withdrawn or amended.
We have a new Bill which will be introduced in April.
That is welcome as there are flaws in the legislation which need to be corrected.
That is true.
We are improving the position all the time. People are starting to think about this issue more deeply.
The Deputy will be aware that I have published a document on it.
I know that, and I will quote from it later. David Byrne's speech in this regard was a key one. It was picked up by many people who said we need to look at what is being done to the Dáil and to the democratic institutions which have authority. He was very clear on this. I know there is a policy position available within the Department on all the issues for which the Minister is responsible and that these can be used very quickly if the Minister wishes to use them. I forget the name of the big fat book one is supposed to read when one becomes Minister——
I know it.
Within it there is a policy on everything and once the Minister signs they are her policies as well. She might influence them in some way down the line but what the Minister does is not as clear-cut as people outside might think. There is a policy there and I would be happy if the Minister said it would be conveyed to the commissioner as soon as possible.
Does the Deputy mean the objectives of the Department in the fat book to which he referred?
Yes. I am worried that we will have four or five commissioners or regulators without any instructions. Tom Reeves is lucky as he probably wrote his section of the fat book.
A portion of it.
He knows it inside out. He also knows everyone else's section so he is well informed. However, others are coming to this from outside without any knowledge of how the system or anything else works. They are taking the authority of the members of the committee and the Minister out of this room into their offices down town somewhere and will operate it from now on. They should operate it on riding instructions. The problem is that if they do not get riding instructions they can do what they like. I will withdraw my amendment but some mechanism has to be found to ensure the regulator knows the Government's intentions.
Deputy Stagg and I have discussed this issue informally as well as formally in the Chamber. As the Deputy knows, after I went into the Department I got uneasy about this issue and I brought a memorandum to Cabinet. This will come out in time. This was before I started work on the regulatory paper, which has now been issued. Deputy Stagg, on behalf of the Labour Party, made a very valuable contribution to it. I began to get uneasy that people were walloping or hand-bagging politicians, but at election time they have the right to say "I like you" or "I do not like you or your party". There is a democratic control over elected people, but there is not democratic control in an elective sense over regulators. Yet regulators are established in both the communications and electricity areas. The power, responsibility and accountability are slipping from the elected representative who will have to come before the electorate at some stage to a person or commission of two or three people who will be accountable to a committee but will not be accountable in an elective sense. In case anyone thinks I am throwing stones at them, both regulators are entirely competent. Yet outwardly democracy would seem to be diminished because of this transfer. I am at one with the Deputy in this regard.
I am worried about that.
I would be too. This is a philosophical discussion, which is rooted in practicality now that we are dealing with the Bill. This transfer is admirable and needed and all modern countries have regulators - I think we are the last European country to introduce regulation in this form. It is new to us in that way but Deputy Stagg said he would be willing to withdraw the amendment if, when the Bill is passed, I would meet the commissioner and relay to him the clear wishes of the committee in this regard.
It will be necessary, from the point of view of the users of the airport who will pay the charges, that he will levy.
Aer Rianta and IEA?
The people who pay the charges.
Yes, that is true.
They will be paying them through the regulator to Aer Rianta or the airport owner. It is important that they would know the riding instructions that have been given to the regulator so that what he is doing will be transparent and that they will know the policy position. If we create a vacuum or if we tell him privately in some way, they are at a disadvantage because they do not know under what policy he is operating.
The Bill is fairly clear on the various duties the commission will have. I certainly would want to meet him but I will not accept amendment No. 4.
I will withdraw the amendment but I ask the Minister to look at that area——
I will think about what the Deputy said.
——to see what can be done and what is feasible. I understand there is a certain degree of urgency about the matter as well and it was not the intention to delay matters indefinitely.
I know that.
I will withdraw the amendment and re-enter it on Report Stage when we can examine it again.
Is that just for clarification, Deputy, that Government policy on aviation generally would be communicated to the Minister?
General policy is a different matter.
That is what I am talking about.
Comprehensive policy directions, which is a different matter to general policy.
We lifted the wording of the amendment from David Byrne's speech, and I am not trying to beat the Minister with David Byrne's speech.
I know that. We talked about it.
I concur with what Deputy Stagg is trying to achieve in this amendment, along with the observations of Deputies Sargent and Carey. The problem is that we do not have a mission statement or a clear policy specification and, therefore, we are giving somebody carte blanche. That is the difficulty. While we tried to strengthen democratic accountability in section 10, it is extremely difficult to bridge that policy deficit on the one hand and democratic deficit on the other. The whole concept of the Bill runs counter to the national trend, which is to have greater accountability. We now have a push for accountability across the entire commercial, political and social spectrum. For example, the Judiciary is now being held to account in relation to disciplinary procedures. The previously untouchable Director of Public Prosecutions, who is independent in the function of his office, is now explaining some of his decisions, for example, in relation to the Nora Wall case. Yet, apart from this individual making himself amenable to the committee, we, as a body, cannot give any policy instructions. There is a problem and I welcome the Minister’s commitment to examine it on Report Stage.
Deputy Stagg can certainly put it forward on Report Stage but so that there will not be any ambiguity about it, I will not accept the amendment as worded.
I am easy about the wording. It is the principle I am concerned about. If "comprehensive policy directions" is the wrong term and even if "by order" is too strong——
"Order" is very strong.
It is as strong as one can get but I hoped to start at the top and come down to the point where we might meet in the middle somewhere. The Minister should look at this issue which is in all our interests. It is a major issue. Transferring authority from the Oireachtas to outside people is the kernel of the Bill and we need to do it so that we have continuing democratic accountability. It is impossible to have accountability if we do not have a known policy umbrella under which it can operate. It has to be known and demonstrated and David Byrne argued that point very effectively.
The Minister recently met a deputation and indicated that she supports the idea of regional development, even though we are a small island. It has been policy in the Governments of which the Minister has been a member that Ireland would be treated as one region and in that, people like regulators have assumed——
That is section 10.
That is another section.
I appreciate that, Chairman. The point I was trying to make is that if further down the road the Minister is agreeable to that, could she not see an amendment being necessary in this section to copper-fasten what Deputies Stagg and Higgins have argued? She may not accept the words used in the amendment but could she not bring forward her own wording on Report Stage to support that ideal?
The discussion is very worthwhile. I do not want to hark back to Deputy Stagg's Bill but 1996 was a different time and it awakened all our thoughts about regulatory matters but there has to be a measure of independence in a regulatory regime. There is no point in having it if there is not a measure of independence. Otherwise we might as well stay at our desks doing our own jobs. It is to get that balance. I will not accept this amendment so there is no point in anybody saying that I will but I will think about the suggestions made here and perhaps some kind of wording can be found that will convey to a commissioner or a regulator that he or she will be mindful, in a general sense, of Government policy.
He is not just mindful. That is not the point. He is absolutely bound by Government policy. That is the law.
I know but "comprehensive policy direction" is a very stark——
I was trying to ensure that he knew what he was bound by. If he does not know——
He is bound by the law.
——what Government policy is, how can he be bound by it? We are saying in the Bill that he is bound by Government policy and I am saying we should tell him what Government policy is.
Let us go through the Bill and we will see where other matters emerge which will——
Have a bearing on this matter?
I withdraw the amendments, Chairman, on the basis of the discussion we have had. In doing so I ask the Minister to examine the matter.
At this stage I presume the Minister would have an idea of the overall expense involved in regard to salaries, etc.
I do not, because the regulator has taken some civil servants from my Department with him and they are being paid by my Department.
Until such time as?
Until such time as this Bill becomes law. I believe he has also taken on two people as advisers or managers.
He has about seven staff at present.
Five are on the Department's payroll or from some other Department.
I am just trying to get a handle on the extent of this.
I had a conversation on that with the Deputy this morning, but I am not clear about the shape of that yet.
Section 9 provides for the transfer of many other functions.
Yes, five altogether, the travel trade——
Will that necessitate additional expenses in terms of staff?
It is a matter for the regulator as to the number of staff he requires. A later amendment is tabled with regard to keeping expenses to the minimum.
I am anxious to ensure we avoid building another financial monstrosity.
Yes. As to the two previous ones, covered under the 1996 Bill and the one I was involved in with Tom Reeves, both of those do not operate to make a profit but only to run their offices efficiently.
I move amendment No. 5:
In page 7, between lines 13 and 14, to insert the following subsection:
"(4) In carrying out its functions, the Commission shall ensure that all determinations, conditions attaching thereto, amendments thereof and requests shall be objectively justified and shall be non-discriminatory, proportionate and transparent.".
I am sure my objective and that of Deputy Stagg in tabling this amendment is to establish a uniform and standard philosophy to guide all regulators. Essentially, this amendment reflects best practice at national level in the Telecommunications Regulation Act, 1996——
That did not have it.
It did. It also reflects best practice in the European Community's telecommunication licences.
It was quoted once in Deputy Stagg's Bill - credit where credit is due.
It is also consistent with the position put forward by the Minister in the White Paper on governance accountability in the regulation process published in March 2000. I ask the Minister to accept this amendment.
I support what Deputy Higgins said.
Section 27(3) states that, "From time to time, and whenever so requested, the Commission shall account for the performance of its functions to a Joint Committee of the Oireachtas and shall have regard to any recommendations of such Joint Committee relevant to its functions." The amendment provides that the commission shall ensure that all determinations, conditions attaching thereto, amendments thereof and requests shall be objectively justified and shall be non-discriminatory. That is fair enough. I will accept the amendment, as it strengthens the section.
I thank the Minister for that.
It will improve the section.
We argued about that point yesterday and I came down in favour of accepting it.
I raised the question of the location of the office.
Does that come under this section?
We said we would deal with that point raised by Deputy Daly under section 5. Will Deputy Daly repeat his question?
This new office will be important and independent with functions relating to all the regions. It should be located outside Dublin. There is nothing written into the Bill on this. There was not much point in tabling an amendment to that effect, as I do not think the Minister would accept it.
It could be located in Knock.
It might be needed there.
It is a good location for an administrative office, so why not? Cahirciveen is another place. There are plenty of places in the west that are suitable locations for this office. I presume the office is located in Dublin Airport at present?
As of now the regulator is in Mount Street, but that is only temporary.
It would be good if we had an idea where he will be located, as we would be able to find him if we need him.
He is based in Mount Street as of now, but that is temporary.
I encourage the Minister to use her influence to locate that office outside of Dublin.
That is not my job, but I do not need to tell the Deputy that.
I agree with Deputy Daly who is seeking to place more emphasis on the regions in this context and I am aware the Minister is of the same view. Aer Rianta promised it would decentralise some of its larger offices in Dublin Airport to the country, but it has not done so. It seems to be consolidating its business more around Dublin Airport. While we might express a wish for such decentralisation at a meeting such as this and when legislation is being dealt with, can the Minister not give stronger support to Deputy Daly's request, that when commissions such as this are set up in future that their headquarters will be located outside Dublin?
I do not intend to give orders as to where they should be sited. While we are being walloped over the head about decentralisation in terms of the ideas put forward by the Minister for Finance, Deputy McCreevy, in respect of which there seems to be a shift to one side or another, it is not appropriate for me to be the one to give orders on matters such as this.
I move amendment No. 6:
In page 7, between lines 15 and 16, to insert the following subsection:
"(2) Notwithstanding subsection (1), the Commission shall appear before and be responsible to a committee of the Houses of the Oireachtas designated by such Houses for the purposes of this section.".
The objective of this amendment is to set to one side forever all the times the Minister has raised the issue with me of not including a similar provision in the telecommunications Bill. I wish to ensure such a provision is included in this Bill.
It is provided for in section 27(3), which states: "From time to time, and whenever so requested, the Commission shall account for the performance of its functions to a Joint Committee of the Oireachtas and shall have regard to any recommendations of such Joint Committee relevant to its functions." That is more of less what is provided in the Deputy's amendment.
It is good enough for me.
The Deputy is happy such a provision is included in the Bill.
Is there any provision for the commission to make an annual report to the Oireachtas?
Yes, we discussed that. That is provided in the Bill.
Where in the Bill is that provided?
It will make a price determination first.
There is a provision that it should report on that.
On each price determination?
It has to publish a report and speak on that.
That is only when the price determination is made, but there is not a provision that it should make an annual report to the House as such.
It is responsible on an annual basis to the Comptroller and Auditor General. It would come before him. The committee can request that the regulator appear before it at any time and lay out his plans for the future. The Bill provides for that.
Yes and he must appear.
The terms of reference of the committee allows for the examination of the report, the hearing of strategy statements and so on.
I presume Standing Orders can be amended, if necessary, to further strengthen the committee's hand on what is provided in section 27.
Yes. The committee can ask the regulator anything it likes. The important point is to ensure that he is obliged to appear before the committee. That is the purpose of this amendment, which is already provided for in the Bill, but I have no objection to including such a provision in this section. I accept it might be tautology but the more it is repeated, the more obvious it is that he will be responsible to an Oireachtas committee. I will accept amendment No. 6.
I move amendment No. 7:
In page 7, subsection (3), lines 23 and 24, to delete "granting operating licences to" and substitute "licensing of".
There are a number of technical amendments to the Bill. The Chief Parliamentary Counsel is an estimable man but he has had too long to think about it, look at and twiddle with this Bill. Many of these technical amendments are twiddles although they are deemed to be proper.
Amendments Nos. 67 and 68 are related to amendment No. 8. Is it agreed that amendments Nos. 8, 67 and 68 be discussed together? Agreed.
I move amendment No. 8:
In page 7, before section 9, to insert the following new section:
"9.-The Minister for Public Enterprise, in conjunction with the Commission for Aviation Regulation, shall ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies in their related field to ensure safety of operations.".
This amendment is self explanatory. There is a huge security element in aviation and at airports and an absolute requirement to have maximum security. It is self evident that the people who are permitted to operate within the airport zone should be vetted for competence. There should be no question mark over their ability to do the job and there should be no security element or risk. That is the reason for the insertion of a new section.
Amendment No. 67 provides that the Irish Aviation Authority Act, 1993, be amended by the insertion of the following:
(a) in section 14(1)(c), by the insertion of-
'to ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies in their related field to ensure safety of operations,' after 'services,' and
(b) in section 43 (1)(a), by the insertion of ’and section 33 of the Aviation Regulation Act, 2001’ after ’Subject to subsection (3)’.”.
The Minister mentioned tautology earlier but from the perspective of safety and security, I doubt that we can emphasise sufficiently or often enough the need to ensure the absolute integrity of the people who operate within the zone of the airport. That is the reason for the amendments.
I tabled amendment No. 68 and its wording is similar to Deputy Higgins'. It states: ". . . to ensure that all agencies permitted to work in the operational area of State aerodromes and licensed aerodromes in handling activities which impact on the safety of aircraft have the necessary competencies to ensure safety of operations". That power should be extended to the Irish Aviation Authority. It effectively means the gap between where the Irish Aviation Authority takes over and the door on to the tarmac is covered by the Irish Aviation Authority. That gap at present is effectively self regulated and nearly all the accidents at Dublin Airport happen in that gap.
The Health and Safety Authority can be called in but it is not a hands on authority. It does not have people there all the time like the Irish Aviation Authority has. It does not set specific regulations for airports, as the aviation authority would. It is sensible to extend the remit of the Irish Aviation Authority from the door of the plane to the door of the building or until people get off the tarmac. That is currently self regulated and nearly all the Ryanair incidents and safety incidents at Dublin Airport occur in that space. There is no effective regulation. The Health and Safety Authority has no special rules for that area.
That authority is to be called in rather than——
That is the problem. The Irish Aviation Authority has up to 800 staff operating hands-on for the airports. I strongly recommend that their remit be extended to that gap.
These amendments, in effect, deal with ground handling. Ground handling has been the subject of an immense number of parliamentary questions and a number of meetings I have had with ICTU, airport staff and other bodies who are worried about the subject. The IAA and the HSA are currently discussing the drafting of a memorandum of understanding. It is a nebulous area over which, as of now, nobody has full control or the final line of authority. We discussed it within the Department last week and this week.
I do not know if this is the correct place to deal with it but I am concerned about the matters of which the Deputies speak. With the permission of the committee, I will ask my officials to speak again to the parties involved, that is, the IAA and ICTU; the HSA is only to be called upon as required. It is between six and nine months since I last met them. We will see then what their thoughts are on the matter. It is a matter of concern because it is nebulous and has not as yet been tied down and put at the door of a body or person.
In your discussions was the Irish Aviation Authority reluctant to take over that responsibility?
It seemed to me that it was. I do not know why.
I found the same.
I welcome the Minister's acknowledgement that there is a problem because that is always the start of a solution. However, this is likely to get worse if the regulator has a clear brief to adopt a primarily commercial view of the operation of the airport. The amendments are important in that they deal specifically with competencies in the field of ground handling, something which, unless it is laid out clearly, is likely to be compromised. That is the worry of people in the ground handling area, that when commercial criteria are applied in a black and white way, competencies will suffer. This must be addressed because it is likely to get worse.
The obvious course for a body to take is to avoid responsibility which it does not have and if the responsibility is not clearly set down, the body will try to avoid it. The IAA or the Health and Safety Authority are obviously managing to claim that this is not their responsibility.
It has to be somebody's.
It does and that is where the Minister has a role to play. If this amendment is not the place for it, something should be done quickly because the situation will get worse.
I have been told for some time that the IAA is quite firm that it does not have a role. I do not know why everybody is shying away from it. However, it is supposed to be drawing up a memorandum of understanding which will set out the respective roles. I will ask the officials to contact the players in the field, meet them and see how far that has developed in light of this legislation.
The Irish Aviation Authority does not have a role at present.
It does not have a function in ground handling
It, therefore, needs this amendment to give it a function. If one attempted to give it a function without the amendment, it would not have any statutory or legal basis.
I understand the Deputy's point. The amendments and the time spent on them by the committee may excite some minds.
Given that there is a vacuum, it would be extraordinary if we did not grasp this nettle now and establish it.
I had a series of meetings with the authority.
Did the Minister receive any representations from Aer Rianta in this regard?
I am sure I did.
I cannot remember them now because it is approximately nine months since I met all those players.
Yes. I also met SIPTU separately.
The amendments seek to address the problem of who is responsible for the crucial vacuum that exists at present, which was identified by Deputy Stagg. I am sure a recent incident at Dublin Airport, which was highlighted in The Sunday Tribune, has been brought to the Minister’s attention. In that incident, a journalist succeeded in breaching security and getting in. He had full access to all backroom operations in the airport and was able to independently vet and photograph aeroplanes at the various terminals and in the various hangars.
That is a security issue.
Yes, but it involves the confidence of the companies. During his period of access to the internal workings of the airport, nobody challenged him. It was only when he entered the public domain that an airport police vehicle followed him, asked him where he was going and tried to take his film from him.
A judge in a courtroom in London had her face bashed in yesterday.
There is a need to copperfasten the situation on Report Stage.
As I said, there is a timeframe and, therefore, I will ask the officials to meet the parties we met previously and to discuss the current position with regard to the memorandum of understanding. I will revert to the committee on the matter.
Amendment No. 10 is cognisant to amendment No. 9 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 9:
In page 7, subsection (1), line 28, after "transferred" to insert ", on the establishment day,".
Both amendments are technical and have been introduced on the advice of the Chief Parliamentary Counsel. I maintain responsibility until the establishment day is set down.
I move amendment No. 10:
In page 7, subsection (2), line 29, after "transferred" to insert ", on the establishment day,".
The Minister probably has an explanation on why the section is as it stands.
Deputy Stagg's amendment must be dealt with first.
It might be helpful to the Minister if she read out the explanation.
The usual procedure is that the explanation is given in response to a question.
I appreciate that.
There is no question as such. If the Deputy thinks about the matter, he may come up with one.
I tabled a series of amendments to section 10,
Where are they?
Amendments Nos. 11 to 14, inclusive, are in the name of Deputy Stagg while amendments Nos. 15 and 16 are in the name of Deputy Higgins.
Did the Chair receive notification about the ruling out of any amendments?
No, not to my knowledge.
The Bills Office groups amendments together. Are amendments missing?
Amendments Nos. 15 and 16 are in the Deputy's name.
Were there more than two amendments?
I tabled a long amendment to section 10.
That is amendment No. 16.
It has been changed to amendment No. 16.
We did not do that; the Bills Office did it.
That is fine.
I move amendment No. 11:
In page 8, subsection (1), line 25, after "may" to insert "by order".
The amendment suggests that if policy directions were given by order, it would ensure that people are aware of what they contain. The users, who would be subject to charges on foot of the policy being operated by the regulator under the Minister's remit, would also be aware. It would ensure that matters are transparent and clear. People would know exactly why orders or decisions were made and the conditions would be apparent to everybody. Perhaps the Minister will accept the amendment.
What does the Deputy mean by order in that context?
I mean ministerial order.
I am sure the Deputy did not mean a statutory instrument.
Yes, I did.
I understand. Initially, I did not know what he meant.
It is similar to the argument I made earlier.
I do not like the word "order".
Perhaps the amendment could be dropped if the word "shall" was substituted for "may".
To what amendment is the Deputy referring?
It relates to the section.
Is the Deputy suggesting that the word "shall" should be substituted for "may"?
If the Minister considered that, I could withdraw my amendment.
I will consider it.
Amendments Nos. 12, 54 and 61 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 12:
In page 8, subsection (1), lines 26 and 27, to delete "(including directions in respect of the contribution of airports to the regions in which they are located)".
Section 10(1) states that the "Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located) to the Commission as he or she considers appropriate to be followed by the Commission in the exercise of its functions". I do not understand why that is included. Does the Minister understand why it is included?
Senator Taylor-Quinn was keen to include that. I am not being nasty, I am just stating a fact.
It states "in respect of the contribution of airports". It could be possible to give unique adverse instructions to the commission.
Is the Deputy saying I would do so?
The Minister would not do that. However, the Minister's successor, who might have a bad mind, could say we want to close Shannon Airport. They could make a special contribution from that airport. Section 10(1) states: "(including directions in respect of the contribution of airports to the regions in which they are located)". What is intended by that?
I presume the Deputy is referring to the Bill.
Yes, section 10 of the Bill.
The section states that the "Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located) to the Commission as he or she considers appropriate to be followed by the Commission in the exercise of its functions". It is of benign nature in terms of the general regional development policy. We had a great debate on Shannon in the Seanad, led by Senator Taylor-Quinn and others. Why does the Deputy want to delete that?
I am afraid it could be used adversely.
I remember we looked at this for a long time and we asked about its purpose.
There could be a situation where a regional airport, such as Shannon, could be disadvantaged by some actions of the regulator.
No. Deputy Stagg is saying it could be disadvantaged by reason of a Minister rather than a regulator.
Section 10(1) states that the "Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located) to the Commission as he or she considers appropriate to be followed by the Commission in the exercise of its functions". That is the Minister giving orders to the commission.
The argument is that if the regulator was taking some action which was disadvantageous to an airport such as Shannon, the Minister would be able to——
That is the thrust of section 10 as it stands. We should come out into the open. When SIPTU came to see me, it said it wanted that changed.
SIPTU said that to me as well.
There is no point in us pussy-footing around. The Deputy is correct that the Minister could be benign towards a regional airport. That was included as an acknowledgement of the role airports play in regional development. SIPTU said it would be fine while I was Minister because I feel that way towards Shannon.
We would be afraid not to say that to the Minister.
However, when I am gone and my successor, who lives in Dublin or somewhere else and does not look kindly on Shannon——
People from the west would be all right.
They would. It is a complete reversal of what has been said heretofore. SIPTU does not want the Minister to have that power. It is all right to have it now if it could be changed when I leave office. It wants the regulator, rather than the Minister, to have the power. All the amendments so far have related to leaving power with the Minister, not with the regulator. However, this amendment seeks to ensure the regulator has the power. Do you, Chairman, follow me?
I do. It is only in the context of general policy.
It is completely out of sync.
Everyone seems to be happy with it.
They are happy now with me and they profess they will remain happy with me, but they do not know if they will be happy with a future Minister, whoever he or she may be.
That will not happen for some time yet.
Yes. Such policy would be a matter for the Government of the day. I, like Deputy Stagg, was also puzzled. I teased it out with the deputation.
We will now discuss amendment No. 13. Amendment No. 15 is an alternative and both may be discussed together, by agreement.
I move amendment No. 13:
In page 8, between lines 29 and 30, to insert the following subsection:
"(2) Notwithstanding the generality of subsection (1), the Minister may give specific directions to the Commission on receipt of the report as provided by section 35(8) of this Act.”.
This amendment is self-explanatory. This new subsection would be inserted between lines 29 and 30. It states that "notwithstanding the generality of subsection (1), [which relates to general policy direction] the Minister may give specific directions to the Commission on receipt of the report as provided by section 35(8) of this Act”. When that report is received, specific directions could then be given to the commission.
Perhaps the Deputy could explain that to me.
It relates to section 35(8) which states that a "report under subsection (7) shall be sent by the Commission to the Minister and to the Authority”.
We spoke about this in general terms some time ago.
Yes. Section 35(7) states that "On making a determination the Commission shall make a report on the determination giving an account of its reasons for making that determination together with its reasons for accepting or rejecting representations made under subsection (5)”. Section 35(8) states that a “report under subsection (7) shall be sent by the Commission to the Minister and to the Authority”. On receipt of that report, “Notwithstanding the generality of subsection (1), the Minister may give specific directions to the Commission on receipt of the report as provided by section 35(8)”.
If the commissioner lays a report here and gives me a report, the Deputy wants me to thank him or her for it and to give him or her an order about that report.
The Minister may give an order.
I would have received the report at that stage.
I may or may not like the report once I have read it. I may then tell the commissioner to do certain things and not to do other things.
If the Minister sees flaws in the system arising from that report, she could give corrective instructions.
Not on the detail of the report.
That is because the report would have been furnished in such detail. The amendment essentially seeks to change a report because it is not liked. That would not be correct procedure. Perhaps it is not what the Deputy intends.
According to my brief, notwithstanding the fact that interested parties and the public may make representations under section 35(5)(c)——
Which they can do.
——there is no provision in the legislation for an appeal by an aggrieved party against the determination.
That is another matter, dealing with the appeal.
Accordingly, in the interests of consistency it is requested that an appeals mechanism to the relevant Minister be incorporated in the legislation. Insertion of subsection (2) would facilitate an appeal by community-based bodies, such as SIGNAL, which would not have the financial resources to launch a court-based appeal.
My amendment seeks the same change, except that it does not specify subsection (8). From the point of view of the appeals mechanism and the democratic deficit——
That is further on.
That is correct, but on the question of accountability, the Bill contains a provision dealing with access to the courts in respect of challenges.
However, a small group, such as a group of community workers, may not have the necessary resources to go to the courts.
The question of appeals will be dealt with under a later section where amendments are put down in respect of judicial reviews. There is also a general appeals issue.
Judicial review is a hugely expensive and complicated procedure.
That will be dealt with later.
Groups such as SIGNAL, to whom the Minister has made herself amenable - I hope future Ministers will also make themselves amenable - should have the right of access to the Minister on matters of concern raised in a report which might be to the detriment of the welfare of an airport, such as airport charges, or the community.
I accept what you say, but let us take it a stage further. Ministers from all parties will always make themselves amenable to people and will listen to what they have to say. I still meet groups all the time who tell me of their concerns etc. I accept that the position of community or smaller groups should be heard, but we should not link that with the appeals mechanism as that will be dealt with later.
There is no appeals mechanism for groups such as SIGNAL.
We should not talk about them here.
I accept that.
If a community wishes to see the Minister to the effect that what a report contains does not suit them and is to the detriment of the airport concerned, the next step, according to these amendments, is for me as Minister to tell the regulator that I do not like what is in the report and it does not satisfy a given community group. I could not do that.
Or a region.
The regional aspect is addressed later. The regulator must compile his report in accordance with other provisions contained in the legislation. I could not, therefore, ask him to change an aspect of the report on the basis that I did not like it.
Could the committee act in that way?
Account must be taken of whether the commission is independent.
That is correct. There is a need to strike a balance. Mention was made of the commissioner's remuneration. He would probably resign if I was to ask him to change a report because I did not like it. I will not do that.
The Minister said that later provisions of the Bill deal with mechanisms of accountability.
Section 27(3) provides that the commissioner shall account for the performance of his functions to a joint committee of the Oireachtas and shall have regard to the recommendations of such a joint committee relevant to his functions. How strong is the term "shall have regard to"?
In a general sense the regulator in question would be foolish not to listen to what a committee had to say. He can interpret it at his discretion. Let us focus on the matter before us. The amendments propose that having considered a report by the regulator and met various interest groups, I can ask for the report to be changed on the basis that I did not like what it contained. I would not do that, nor do I expect any other Minister to act in this way. Again, a balance must be struck between independence and general policy directions. It is very difficult to define that, in a regulatory Bill or in any papers dealing with regulations.
We do not envisage that the Minister would become unduly influenced or prescriptive. Subsection (1) provides for general directions. Our amendments seek to insert subsection (2) to the effect that the Minister may make prescriptions on the detail of any report submitted. We regard it as a right for the Minister to exercise, but only on the rarest of occasions.
If an appointed regulator is given carte blanche for the duration of his term of, say, five years, he does not have to consider any views. He is effectively a solo performer, operating under general guidelines, but in effect he has absolute power and discretion when making decisions on when and how levies should be charged and so on. These amendments seek to ensure that in certain circumstances and if the Minister feels strongly enough about a proposed infringement to the welfare of an airport or a community that is of vital importance, he or she may give a specific direction.
That is not provided for.
That is what we are seeking to achieve.
I am aware of that and I have gone over this many times with Etain Doyle and Tom Reeves. If a measure of independence is not granted to a regulator, which includes transparency and accountability - we all seek that - there is no point in proceeding. There is a requirement to have an officer of a regulator. It is not as if one person will dictate things. Three people will be involved in the telecommunications commission. An Post will also be included. In the same way electricity will take over gas and three people will be involved. There will be no primus inter pares. They will be three people of equal standing. In the same way aviation may be linked to transport or some such element. The Bill allows for three people to be involved in this aspect.
When dealing with the ODTR, the regulatory authority for telecommunications, I was worried about the involvement of only one person. The Cabinet contains 15 members and all can give their point of view. Everybody must be responsible to another and must listen to others. No one person will dictate everything. I certainly would not see a situation arise where on receiving a report, one would decide that one does not like this or that. If that were the case, one would not get a person to take the job.
On a point of clarification, Deputy Higgins raised a point about section 27. Subsection (3) states: "the performance of its functions to a Joint Committee of the Oireachtas and shall have regard to any recommendations of such Joint Committee". The report will come before the joint committee. Does that mean that the commission simply listens but disregards?
No. The phrase "shall have regard to" is one of those legal terms which is used in all legislation. In the end it comes down to the qualities of the person and the fact that he or she would listen to the committee. Clearly if the committee was of one mind, it would be a rash regulator who would not pay due regard to it.
The person would take it on board.
That has to do with future policy making. It would not be with regard to the report. I envisage this regulator appearing here before the committee - under its own remit, the committee may want to see him the day after he is appointed - to answer practical questions such as how much he is earning, how many staff there are etc. The committee could ask what is the programme of work for the year ahead and the regulator would lay it out. The committee could ask the regulator to report again in six months, at which time the regulator would furnish a report. I cannot then see that the committee could state that it did not like chapter two or three or line 10 or 11 of that report because that would lead to an unending process and an unbusiness-like commission.
I do not disagree with the Minister's analysis but the real problem is that users, be they community or workers, do not have an opportunity to appeal. If, in the definition of users, the Minister had included people who are working in the airport or people in the community associated with the airport, one may have had access to the commissioner. It is a matter of access to the commissioner.
On that, I understand Ms Etain Doyle meets people and groups all the time, or her officials do so if she is not there. Access would never be a problem. Like in other circumstances, people would meet people unless they are very dogged. I would not envisage that access would be the difficulty.
I wish to make clear that the regulator would come here and state that this is the programme of work and he will return in six months with a report for the committee. In six months the regulator would return and report and my point is that the committee would then say that it wanted to change that report or the Minister might say so because I expect the regulator will come in to see me to outline the intended programme of work for the first six months.
Let us say that there was something in the report which was contrary to Government policy.
That would be a separate matter. The general policy of this and the previous Government with regard to Shannon Airport, for instance, is that it should retain its status and be part of regional development etc. If the regulator came to me with a report stating that he would close Shannon Airport or dictate charges in such a way——
That it would close.
——that ultimately it would close, certainly the Minister or a committee——
Let us say that the regulator had ten such items out of a hundred in his report.
That would be to attribute an enormous malfunction to the regulator.
Then the Minister would need to fire a shot across the regulator's bows in some form. If this subsection which we are proposing was in place, the Minister would have an automatic vehicle for doing so.
No. It would be incorrect to put in law that a report will be made and following that report the Minister will revisit the regulator's plan of work and what the regulator had done. One would not get anybody to undertake the job of commissioner. What would be the point?
A conflict with Government policy is distinctly different.
With laid out Government policy, yes. I am just taking the Shannon Airport issue as an example.
The regulator would nearly know that at that stage.
Yes, because it is self-evident.
Is Government policy covered by section 10(1), which states: "The Minister may give such general policy directions". Is that where Government policy comes into it?
I asked originally if she would give us the benefit of the explanation to section 10 which the Civil Service has given her.
My note states that section 10 provides for ministerial authority to issue policy of a general nature - that is in the Bill. This is a fairly common provision and permits a residual power to be exercised in the interests of issuing appropriate policy directives to a regulator. The requirements of any aviation sector can change, as we know.
Baring in mind that issue, on which the regulator will come to the committee and to me, basically the raising of money through the charges, the regulator will deal with the travel trade, licensing and some other matters, all of which are mechanical operations. The report to the committee and to me would state the cap on the money the regulator proposes to raise in order that the two bodies, Aer Rianta and the IAA, can run their businesses.
Here we would really be telling him how to do it and all he would have to do is go and do it.
He would come to me and say that he had decided to massively reduce charges or raise the cap by a particular amount, or he might say that he had decided to do nothing. If I was to tell the regulator that I do not agree with raising charges or deleting charges, as the case may be, what is the purpose of the regulator?
The Minister would not have the power to say that she does not agree.
Not really, that is true.
What are the appeals mechanisms or are there any appeals mechanisms for community groups, user groups etc.?
The user groups are the IAA and Aer Rianta - they are the two.
If SIGNAL, for example, or some commercial organisation within the catchment area of Shannon Airport had a problem with a particular recommendation or determination——
Does the Deputy mean a problem with an airport charge?
Yes. Is there any——
The explanatory memorandum states that the regulator has five functions. It states that the primary function of the Bill is to provide for the independent regulation of airport charges, including charges for the IAA, that is, for Aer Rianta and the IAA. The legislation also provides that the commission will assume responsibility for a number of other aviation functions: the grant of operating licences to air carriers, which is a mechanical function; the designation, where necessary, of Irish airports as co-ordinated airports, which we are about to introduce because we could not wait; approval of ground handling services, to which we will return; and the licensing and bonding of tour operators and travel agents, which is purely a mechanical function also. Really we are talking about airport charges——
——IAA charges and Aer Rianta charges. With the greatest respect to SIGNAL, I do not know what the appeal against an airport charge would have to do with SIGNAL.
The Minister has reached the crucial point. The chief executive officer of Ryanair was at Shannon Airport a few weeks ago and he sought as a policy the adoption of the abolition of all airport charges for airlines. He pointed out to the board at Shannon Airport that this policy has more or less succeeded at a number of airports, particularly one in Scotland which had almost gone to the wall. He had resuscitated it by partly taking it over. Such financial detail is keenly analysed by airport managers, such as those at Shannon Airport. We do not know if Shannon Airport is viable. I do not know, even if the Minister appoints a regulator, how she will conduct an analysis of the accounts as they stand.
We would conduct such an economic analysis.
If that is the case, cross-subsidisation and other effects will become a problem. If Shannon Airport could not attract air traffic without introducing vastly reduced charges by comparison to Dublin or Cork Airports, there is no mechanism for appeal.
Is the Deputy saying that we would reduce charges so that the airport could attract traffic?
The regulator would, as a commercial consideration.
Aer Rianta is a commercial semi-State company, not a subsidised semi-State company. The notion that one would reduce charges to enable an operator to make more money——
When Shannon Airport was generating virtually all Aer Rianta's income, charges at Dublin Airport remained low because of the surplus generated at Shannon.
When was that?
Before Deputy Cowen deregulated the industry.
I do not follow the logic of Deputy Carey's point. Aer Rianta is a commercial semi-State company. It is not subsidised and, therefore, it must pay its way and live within its——
It may not need the income generated by landing charges. It may have other charges.
That is a matter for the regulator to examine. It is not up to me to decide from where it generates its income. That is the purpose of the legislation. Traffic at Shannon has increased hugely by 19% and 10% in recent years.
I will not argue with those figures.
I do not ask the Deputy to argue with them.
I can also pick figures from the sky.
On a point of order, I did not pick those out of the sky. Those are audited figures available to everyone. I do not understand the notion that a commercial semi-State body would deliberately reduce charges. It is a subject——
Many businesses reduce prices to increase business.
They remain in business. They are economically run. That is what the regulator will do.
Aer Rianta can also be economical.
Exactly. I am sure it is run economically. Ireland has some of the lowest airport charges in Europe.
That is another argument.
The figures are audited.
Yes, but as Deputy Higgins stated, there is no appeals mechanism.
I will deal with appeals later.
The amendment is withdrawn.
I retain the right to table the amendment again on Report Stage or on the basis of the discussion on appeals.
The Deputy can table whichever amendments he wishes but I will not accept the amendment because it negates the entire Bill.
Will the Minister consider an appeal?
There is a section dealing with appeals.
Amendment No. 16 is an alternative to amendment No. 14 and both may be taken together by agreement.
I move amendment No. 14:
In page 8, between lines 29 and 30, to insert the following subsection:
"(2) In giving such directions the Minister shall have regard to the following policy objectives:
(a) to foster a strong and competitive Irish airline industry by providing sufficient airport capacity where it is required;
(b) to minimise the impact of airports on the environment generally and to ensure that land use planning and conservation policies take fully into account both the development needs arising from airports and the environmental consequences;
(c) to make the best use of existing facilities and provide new capacity only where this is economically justified;
(d) to encourage the use and development of regional airports so that they meet the maximum demand they can attract;
(e) to ensure that all airports maintain the highest standards of safety;
(f) to ensure that air transport facilities should not in general be subsidised from public funds;
(g) to ensure that airports should normally operate as commercial under-takings.”.
This is an important amendment, which I hope the Minister will accept. It is based on a request by SIPTU which again seeks clarity on policy. The amendment is modelled on the UK Act. It provides a second subsection under general policy directions.
That is very right wing. Did that come from SIPTU?
If the Minister looked at it from Deputy Joe Higgin's position, it might appear right wing. It should appear left wing from her position. The amendment states:
(c) to make the best use of existing facilities and provide new capacity only where this is economically justified; [I would be surprised if we did otherwise]
(d) to encourage the use and development of regional airports so that they meet the maximum demand they can attract;
(e) to ensure that all airports maintain the highest standards of safety;
(f) to ensure that air transport facilities should not in general be subsidised from public funds;
That is fair enough.
Paragraph (g) states: “to ensure that airports should normally operate as commercial undertakings”. That is by no means an exhaustive list but it captures a broad spectrum of what I hope will be the Minister’s policy and the policy umbrella under which the commissioner will operate. There should be clarity about what he should do.
Did the Deputy get the amendment from SIPTU?
My amendment is basically the same but it is in an abbreviated form. The Minister should have regard to the following policy objectives: to foster a strong, competitive Irish airline industry by providing enough airport capacity where it is needed; to make the best use of existing facilities and provide new capacity where it is economically justified; and to ensure all airports continue to maintain the highest standards of safety in accordance with internationally accepted rules and standards. There is a commission to comply with directions given under subsections (1) and (2). We did not succeed in inserting subsection (2).
It is self-explanatory.
The amendment is extremely prescriptive and when one does that in legislation of a general policy nature one finds that one has made omissions which need to be considered or one has gone beyond one's brief. The purpose of the Bill is to appoint a commissioner and get him or her to conduct his or her business.
Section 33 states that in making a determination the commission shall aim to facilitate the development and operation of cost-effective airports which meet the requirements of users and shall have due regard to paragraphs (a) to (i), which cover safety requirements, a reasonable rate of return, the efficient and effective use of all resources, the level of income operating, the level and quality of services and cost competitiveness. Different wording is used but instead of me ordering it to happen the legislation provides what the committee shall have regard to. We inserted sub-paragraphs (h) and (i) in an amendment in the Seanad imposing the minimum restrictions on the airport authority consistent with the functions and such international obligations are relevant to its functions. Senator Taylor-Quinn proposed these changes, with a number of others, but we accepted those two.
I accept the validity of the Minister's point. I will withdraw my amendment but I ask her to ascertain whether there are any points of merit in it.
That is fair enough. That is what we did when Senator Taylor-Quinn tabled her amendment in the Seanad. We accepted two of its proposals.
We in the Labour Party used to call a number of similar motions which had been tabled together a composite motion. When they were finished one could not read them.
Essentially I am trying to be as positive as possible.
I know that.
They are highly desirable objectives and I am trying to set the highest standards in terms of aspirations as to what we believe Government policy should enshrine.
I take that point. I undertake to examine the two amendments tabled by Deputies Stagg and Higgins and if anything in them is not encompassed by the legislation I will table an amendment to address that.
I move amendmentNo. 15:
In page 8, lines 30 and 31, to delete subsection (2) and substitute the following:
"(2) Notwithstanding the generality of subsection (1), the Minister may give specific directions to the Commission on receipt of the report as provided by section 35 of this Act.”.
I will withdraw the amendment but I will table it again on Report Stage.
We have teased out the section at length but in regard to the appeals mechanism can the Minister, under section 10(1), in certain circumstances if she regards something as damaging to the welfare of an airport or a region - Deputy Carey pointed out that charges can be crucial in terms of the welfare, viability and future of an airport - instruct the commission in that regard?
No, I cannot instruct him as to what charge he should impose. I do not have that right. He will be given that job when the legislation is enacted.
If Government policy is to maintain Shannon Airport, for example, and he introduced charges at the airport which would damage its viability, the Minister would have the power to intervene.
That is bringing the issue another step forward. If Government policy was that Shannon Airport was the desired airport for regional development, that that should remain the case and that it should grow and prosper, and if the commissioner came to me with his report about the level of charges, he would have to justify them because that is provided for in the legislation. He will have regard to general Government policy. Deputy Higgins is asking me to tell him that the charges he has imposed on the airport are too excessive or too low and will not allow Shannon Airport to operate as per Government policy. I do not agree with that because how am I to judge that? He has a general remit under the legislation and how am I to tell him I do not like what he is doing because it will affect Shannon Airport? He can say it will not.
For example, if he makes his determination of charges in six months or a year and there is a review five years later with a review period of two years——
Others can request one also.
Yes. It is a moot point but it is not defined when one should interfere.
Is there a specific definition to cover contributions of airports to regions under section 10?
I presume contribution means the beneficial effect of an airport. It does not refer to money.
It means the social and economic effect of the airport.
Exactly, the well-being of the region.
If someone damaged that, I am glad the Minister will have the right under the Bill to intervene.
If it flew in the face of Government policy or a Government decision.
Or if he was in breach of including directions in respect of the contribution of airports to the regions in which they are located.
Yes, but I would have no right to say the charge imposed is too low and that airport is not economically sustainable. He would have done it against the background of economic viability. That is how I see it.
If the viability of the airport is in question, in future the regulator will have to recommend increased charges and it can never become a low cost airport, where one could have low cost carriers operating out of Shannon. Viability is an issue all the time. The Minister or a future Minister might decide to make Shannon Airport a low cost carrier airport. Where would the regulator be then?
I do not think any Government would challenge low cost air carriers. There should be a variety of airline companies, as is the case. If the Deputy means low cost airport charges, which is what I think he is saying——
He is talking about Ryanair.
Yes. Thank you.
It could be Virgin or any airline. It could be an American airline.
It is a commercial semi-State company. As of now, airport charges account for 17% of the operating costs.
As well as referring to the section, which I am happy with and fully understand now, the Minister is telling the committee - I refer to section 10 - that in circumstances where she would determine that the commission was acting against the interests of the contributions of airports to regions, she could act.
The Bill states that the Minister may give such general policy directions, including directions in respect of the contribution of airports to the regions in which they are located. Presumably this relates to the benefits of airports to the regions in which they are located. We inserted this in the Seanad as this went on for weeks in that House - at the end we were nearly a debating society. That was put in with all-party agreement.
I thank the Minister for inserting that. The crucial assertion is "including directions in respect of the contribution of airports to the regions in which they are located". We are talking here about the importance of the airport to balanced regional development.
It strikes me that if the Government says it has policy interests in relation to Shannon Airport and there is a deviation from that on the part of the regulator, the Minister may make a prescription within this provision.
Yes, but not on the precise nature of airport charges.
Surely the Minister sees the point that some advantage must be given to an airport like Shannon. It must do something to attract business.
It must be doing it well.
It has the benefit at present of the bilateral agreement, but if that were to go and this Bill were not reviewed in five years, there could be difficulties down the line, with economic charges imposed by the regulator possibly being so high as to send an airline in the opposite direction. Because of the regulator's strict interpretation of commercial viability the charges could not be reduced as I requested originally.
I am not going into whether the regulator will reduce or raise charges. The area of charges is his main remit. In general policy section 10 is a good one.
A group could appeal to the Minister.
The Minister may make such general policy——
A group might feel that the Minister should be informed of a certain matter.
Yes, at any time. In addition, it is not five years; the review is in two years.
It is effectively five years.
By law it is two years, which is not out of the sky.
The commission is required to operate within the policy guidelines set out by Government - I sound like I am repeating myself - and we are giving the Minister specific power concerning regional airports.
If the Deputy means State regional airports, yes.
I presume it means all regional airports.
No, they have to have one million passengers.
The ones that are affected are probably the State ones anyway.
As of now.
One million in Knock.
The figure is 966,000.
If the commission does anything regarding charges or otherwise, this section gives the Minister the authority to be effective in ensuring Government policy is adhered to.
Yes, Government policy would have to be adhered to.
Does the Minister see the point I am making?
This would bring them back on line.
I do not have the authority to question what is given by law.
Unless it contravenes Government policy.
If he is wrong, the Minister has the authority to tell him the regulator he is wrong and he will have to correct himself.
If it is against Government policy.
If the charge is excessive and, therefore, contravenes Government policy, it would seem in those circumstances——
Government policy is not laid down——
We do not want to give the Minister back the job of setting an example. That is not what we are trying to do.
Exactly. I accept that but section 10 is a good one which arose out of a Seanad debate.
The Minister mentioned 17%.
That is for aeronautical revenue - airport charges account for 17% of revenues for Aer Rianta.
What is the main cost?
There are shops, car parking and other ancillary matters.
Car parks are very profitable.
A figure of 17% is amazing.
Does that relate to one airport?
It is Aer Rianta. I remember when the IEA invited the former secretary of the Department of Aviation as a guest speaker in the summer - Senator Taylor-Quinn and I heard his speech - he told us that ours were the lowest charges in Europe and he could not understand that Aer Rianta was getting only 17% in charges. I am saying so before anyone starts to roar and shout at me.
That is a meaningless figure because, for example, car parking charges may be extraordinarily high.
Would we not have to raise them? I am stating the percentage.
That is not a reason for increasing them.
Amendment No. 19 is consequential on amendment No. 17 and these amendments may be taken together.
I move amendment No. 17:
In page 8, subsection (4), line 47, after "commissioner" to insert "or deputy commissioner".
We have gone into great detail setting out how the commissioner will be appointed, the qualifications required and so on. However, we go on to suggest that the deputy commissioner will not have to go through any procedures and the Minister will be able to nominate an official as deputy commissioner who will have the same powers as the commissioner about whom we are going to a lot of bother.
They will be equal. Etain Doyle and Tom Reid are examples, but when I mention names it is just to help make a point. When the three people are appointed it will not be the case that one will be above the other two - there will be no primus inter pares.
That is not my point. I am referring to the deputy commissioner.
There will be no deputy commissioner. The provision refers to a situation where someone would be away. There will not be a commissioner, a deputy commissioner and an assistant deputy commissioner. There will be three commissioners. It is wrong to refer to a head commissioner. The commissioner may have to go away and he or she will appoint a deputy commissioner for the period of his or her absence. It could be staff.
That is my concern. We will go to a lot of trouble to select a commissioner and are setting out in law the parameters regarding the position. There are a lot of rules and regulations. However, the Minister, or perhaps the commissioner, can then appoint someone, I presume at the drop of a hat.
It would be a temporary appointment.
The person appointed could be there for a long time. He or she could be there for a year.
Section 13 outlines the purpose and role of a deputy commissioner, that is, he or she acts in loco of the commissioner in certain circumstances. The deputy commissioner would be selected from the staff and not recruited by the Civil Service. It would be one of the three commissioners or a member of the staff.
He or she is likely to be an official of the Department.
He or she is likely to be one of the officials transferred from the Department as they will be the most knowledgeable people available.
All officials remain civil servants when they go to these regulatory offices. There is a little trouble about that.
So it will not be one of those officials?
That makes it worse because they will not be in any way involved in the industry. The person appointed cannot have anything to do with an airline for five years and so on. That is a later amendment. However, the deputy commissioner, who could be in charge for a year if the commissioner is ill, does not need to have qualifications. If there is to be a deputy commissioner, he or she should have the same qualifications and the same rules and regulations should apply to him or her.
The Deputy is correct because the three commissioners will be the same in that none of them will be the top dog. When we reach the stage where there are three commissioners they will be equal. The commission at present comprises only one person.
My amendment would have the effect of stipulating that a person should not be appointed as a commissioner or deputy commissioner unless the Civil Service Commissioners, after holding a competition on behalf of the commission, had selected him or her for appointment as a commissioner or deputy commissioner.
This issue does not matter at present because there will only be one person involved. However, when the commission is increased to three persons——
It is critical now as there is only one person.
Correct, and the others will be the same when appointed.
There is only one commissioner at present. What if he becomes ill?
Or has to go away.
What if he is ill for six months? Someone else will have to be appointed, but he or she cannot be a civil servant.
At present Etain Doyle personally appoints someone if she has to go away.
Section 13 might have some relevance to this point.
The section states:
The Commission shall designate a member of its staff as a deputy member of the Commission . . . who shall assume and carry out with the authority of the Commission all of the functions of the Commission in the absence of the commissioners or when the membership of the Commission is vacant.
Section 11 contains a long list of stipulations regarding the commissioner. However, in the case of someone who will take over from the commissioner and who will have full authority——
I accept the Deputy's point but I thought he was talking about something different. We have outlined stipulations regarding the commission. I thought the Deputy was suggesting the deputy commissioner would be second in charge. He is not suggesting so. I accept the Deputy's point but the commissioner will not recruit the deputy commissioner to take charge while he or she is not available. The three commissioners will be equal.
Would it not be a good idea for the three commissioners to have a deputy? If there are to be deputies they should be as qualified as the people for whom they are deputising.
I know the point the Deputy is getting at but it is different from what I thought he was referring to. I thought he was referring to a hierarchical structure.
I will examine this issue as it is different from what we thought the Deputy meant.
This is not an easy matter to address and my amendments would create complications for the Minister as she would not just be appointing a commissioner but a commissioner and a deputy commissioner.
Does the Deputy understand that we are not doing so?
Yes, but that is likely to occur. We will take that into account in section 13.
I will examine this matter in light of the Deputy's comments.
I will withdraw amendments Nos. 17 and 19, but I may table them again to facilitate further discussion.
I will come back to the Deputy and we can have informal discussions on this matter.
That is fine.
I move amendment No. 18:
In page 8, subsection (4), lines 48 and 49, to delete "on behalf of the Commission".
This is a technical amendment.
Amendments Nos. 20 and 21 are related and may be taken together.
I move amendment No. 20:
In page 9, subsection (7)(a), to delete line 10 and substitute the following:
"date specified therein or upon receipt of the letter by the Minister, whichever is the later, and".
This is a technical amendment regarding resignations.
We will take our time.
I move amendment No. 21:
In page 9, between lines 16 and 17, to insert the following subsections:
"(8) Where the chairperson of the Commission ceases to be a commissioner he or she shall also thereupon cease to be chairperson of the Commission.
(9) The chairperson of the Commission may at any time resign his or her office as chairperson by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon receipt of the letter by the Minister, whichever is the later.".
Is it agreed that we will conclude by 5.30 p.m.?
There is a page of amendments which are technical in nature.
Can we aspire to 5.30 p.m. as a time to conclude?
We do not want to impose a guillotine.
We are not doing that, I am only asking for the best of intentions. We will do our best.
I should have introduced Pat O'Connor and David Hanley from the Department.
A person employed in an airport or by an airline could be very well suited to the job of commissioner.
What if the chief executive of Ryanair applied for the job? Surely they would carry over a residual interest in their former employer's business.
That would certainly challenge Government policy.
I am seeking to safeguard against such a situation arising. I thought the proposal contained in the amendment was relatively standard.
It is not contained in any other legislation. There was a provision in regard to people not being able to carry over leave. I am not particularly opposed to the Deputy's suggestion but I think it would be very difficult to enforce.
Is five years too long?
It is certainly a long time. People move from one job to another more quickly now than in the past and I feel such a provision would be challenged were it included in the Bill.
Would the current appointee be affected?
He came from the Competition Authority which is another body entirely and so he would not be affected.
If we leave it open to people from Aer Rianta or one of the airlines to apply for this position, they will essentially be poachers turned gamekeepers.
Section 17(1) on declarations of interests states:
On his or her offer of appointment, each commissioner shall make a declaration in writing of his or her interests to the Minister, in such form as the Minister . . . may specify.
That would apply in much the same way as Members of the Oireachtas declare their interests and update them on an annual basis.
The Minister stated that she received advice that there were legal difficulties with the amendment.
Such a provision could be challenged legally.
When the telecommunications regulation Bill was being introduced, an attempt was made to exclude civil servants from applying for the position of regulator. I argued successfully against that as I felt the exclusion of a particular category of person could have given rise to constitutional difficulties. The position here is different in that the people referred to would have a direct interest in this area.
Etain Doyle was a civil servant in the Department of Finance at one stage.
I am seeking to avoid conflicts of interest arising.
Section 18(1) states:
Where a commissioner . . . has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Commission, he or she shall
(a) disclose to the Commission . . .
(b) neither influence nor seek to influence a decision . . .
(c) take no part in any consideration of the matter . . .
The period of five years is too long.
Five years is too long because people change jobs quite often.
Is there a two year period before people who resign can take up a job in that area?
They cannot take up an analogous type job for 18 months.
Can the Minister do anything about this?
I believe this would be challenged. I will seek a precise opinion from the Attorney General's office because we just made informal soundings.
The object of the exercise is to be fair and to be seen to be fair.
Will there be power to remove the commissioner from office where his behaviour——
Could this relate to how the commissioner is carrying out the job?
It would have to be of a serious nature. It would not be because I did not like what he put in the report.
There are two ways one could be chastised because, under the section, the Minister has control over remuneration which must be agreed with the Minister for Finance. Effectively, the Minister could remove one by reducing the level of remuneration. This could make it undesirable for one to seek the position or to remain in it.
The salary would be set. Does the Deputy mean that I could reduce it?
Yes. There is nothing in the Bill which states she need not do so.
If he did something serious which warranted this action——
If, for instance, he did not behave in the way expected in relation to Government policy, would that be a reason for removing the person from office?
Section 11(7)(b) reads, “be removed from office by the Minister if, in his or her opinion, the member has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour. . . ”. That would need to be rather serious.
If the issue was detrimental to an area, such as the one about which we are concerned, could you remove a person for that reason if it was not in compliance with the Minister's policy?
We are now going a step further. First, there was the issue of whether I would question his report and now whether I might sack him.
Why was it thought necessary? If one is convicted of a criminal offence or something of that nature, one could remove him, but this relates to behaviour. What was the thinking behind this?
I do not know what the misbehaviour would be. Clearly it would have to be of a serious nature.
If, for instance, he were to make a decision in relation to charges which would mean people would not have employment or would have a negative effect on an airport, would that be considered misbehaviour?
Section 10 lays down that the Minister may give such general policy directions. I think that is included as a caveat. I do not know what serious misbehaviour would be.
I recall a chief executive of a State company being effectively sacked during the period I was in Government. I believe he should not have been sacked for what would now be considered a very minor misbehaviour, if even that.
Was he sacked by the board? Did the board take a decision in his case?
The board was considering sacking him.
It was acting on instructions from its political masters. This is now very vague.
I thought the authority was sacked by a Minister at one stage. Was there a reason for including this?
Is there any other legislation where there is an established understanding about stated misbehaviour?
It was the same in relation to the electricity fellow.
I presume this was the intention. This particular individual is now appointed to the position.
I have nothing to do with him, so to speak.
A statement of interest has been received. I presume misbehaviour——
No, because he is unestablished. He is not an established civil servant.
The statement of interest is mentioned in another section.
That is what he is asked to do.
Has that not been introduced yet?
No, but he would know that will have to be the case. That cannot be done until the Bill becomes an Act.
Suppose the man or woman in this position was a director of an air company and this came to light, would that be regarded as misbehaviour?
That is provided for.
Not now because he is not taking the formal decisions. When this becomes an Act he will submit his statement of interests. That will then be scrutinised. Deputy Daly asked about stated misbehaviour. I do not know what this would be.
That is not satisfactory. I would like to pursue a matter which Deputy Daly raised. We need to know what the intention is.
Of this one?
We need to know what the Minister intends by including this in the section. Before we pass the legislation, we need to know the Minister's intention in this regard.
This is included in the other two regulatory Acts.
I am aware of that. What is the intention of the section? What type of misbehaviour is the Minister talking about? Is she talking about criminal or moral misbehaviour or breaches of Government policy?
I will come back to the Deputies with an explanation.
We spoke earlier about whether there would be a more appropriate place for an amendment in relation to the deputy commissioner. If we are to have clear instructions about the commissioner's responsibilities, policy objectives and himself personally, the same criterion should apply to the deputy commissioner.
I will come back to the Deputy on that point.
Perhaps section 13 would be a more appropriate place to make the amendment. I tabled the amendment to section 11.
I will come back to the Deputy on that matter.
Have we dealt with section 14?
On the employment of consultants, the tender system seems to exist.
It relates to the amount. Is the Deputy referring to advertising?
There is no reference to "tender" in this section. Will it be included in the regulations? Does it need to be in the legislation?
It is over a certain amount. I think the figure is £100,000, but I will get the proper figure for the Deputy. If it is less than that the Department can decide to allocate it, but if it is over that amount, it has to go to tender.
The figure is probably in the Department of Finance guidelines.
——and the EU journals.
Is the approval of the Minister for Finance needed for this?
Yes, if it is over a certain amount.
As it stands here?
No, but my Department exercises full approval over everything. This is done in conjunction with the Minister for Finance.
I have no problem with the provision but in certain cases the advice may be available from some of the people with whom he is working.
Does the Deputy mean he will not have to get it?
Yes. If the advice is already available from, say, Aer Rianta or another authority, it may be preferable to use it rather than bring in consultants.
I will have to leave that to the judgment of the regulator.
I am nervous of the new reality in Departments, quangos and the new bodies we are setting up——
Consultancy is the order of the day.
Consultants now have to be brought in if one wants to order an envelope.
Or a hamburger.
One might need one in the case of the hamburger. I want to put down a marker that the excellent staff working full time in these places give the information and, very often, an analysis of it to the consultants who write up the paper and get a big fee for it. I saw this when I was in a corner of the Minister's Department and I have seen it in other places since. The staff did most of the work and the consultants got paid. They came up with the exact same results as the staff.
There is no doubt that Civil Service advice is sound and it has the experience and wisdom. I am not saying that because civil servants are here, but it is what I have found. Sometimes a matter may be very specific and one would need technical facts etc. In general the information in the file from a civil servant is sound.
There is another reason, that is, to cover people's tails. Because a consultant said it, it can be a stick with which to beat the final decision-maker.
That is true.
I move amendment No. 23:
In page 10, between lines 5 and 6, to insert the following subsection:
"(3) The Ethics in Public Office Act, 1995, shall apply to the Commission and the commissioners and to such staff of the Commission as are of Principal grade or its equivalent and higher.".
I have no difficulty with the section as it is drafted, but I do not understand why we are providing in legislation that a code of conduct will be drawn up for public servants, which effectively they are in one form or other, when the Ethics Act is in place and it should apply to them. This gives them an automatic code of conduct.
I have no objection to accepting the amendment.
Is my amendment No. 27 being taken in conjunction with this amendment? I have no problem withdrawing my amendment if this is the appropriate place to insert this provision.
Yes. It is no harm to have it emphasised, which is what we are doing.
Amendment No. 27 is an alternative.
I will not move amendment No. 27 in favour of amendment No. 23.
We are excluded under this section.
There will be no second-jobbing by TDs.
Who would want to be a regulator?
We cannot even get a job as one of the staff or a job sweeping the floor.
The Chairman will be eligible to apply.
I might run yet.
I move amendment No. 24:
In page 11, subsection (2), line 5, after "consultant" to insert "and adviser".
The chief parliamentary counsel has advised that the words "and adviser" be inserted after the word "consultant" in section 17(2).
I move amendment No. 25:
In page 11, subsection (4) (b), line 23, to delete “context” and substitute “content”.
This is to correct a drafting error.
I move amendment No. 26:
In page 12, subsection (7), lines 4 and 5, to delete "(within the meaning of the Act of 1998)".
Amendment No. 28. Amendment No. 30 is cognisant. Is it agreed to take both amendments together? Agreed.
I move amendment No. 28:
In page 12, subsection (2) (a), line 45, to delete “her’s” and substitute “her”.
I think the subsection as drafted at present is correct. The word "his" is possessive and plural.
His coat is singular.
It is "his and her's", not his and her coat.
His and her's.
It is the equivalent of an August fair in another context.
Are there any teachers here?
I am a teacher, as is Deputy Jim Higgins.
My English text guru did his best to get me to table an amendment to this provision but I refused and he gave me pages of an explanation as to why the Minister's amendment is wrong.
The section refers to "he or she or any member of his or her household".
The section states:
For the purposes of this section, but without prejudice to the generality of subsection (1), a person shall not be regarded as having a beneficial interest in, or material to, any matter, by reason only of an interest of his or her’s or of any company . . .
The Minister is deleting "her's" and substituting "her", which is wrong.
I never previously saw the word "her's" written down until I saw this provision.
The section sounds correct as it is drafted.
No, I think "her" is right there - ". . . or any nominee of his or her . . . "
It is right the way it is.
I will not go into the wall over it.
Neither will I, but I suggest the Minister examine it on Report Stage.
If that is all we have knocking around on Report Stage——
Will the Minister give us the explanation of the section?
Of the entire section.
I will get that for the Deputy. Does the Deputy want the explanation for the whole section?
The section outlines the measures to be followed where a commissioner or staff member or anyone engaged by the commission has an interest, pecuniary or beneficial, in any matter that is to be considered by the commission. In essence, the section provides that any such person shall disclose the nature of that interest and that he or she shall take no part in decisions or meetings relating to the concept.
It does not say anything about ethics or anything like that?
No. We have already put in the ethics.
I know that.
We are still on amendment No. 28.
I am seeking to insert "her" instead of "her's".
That is in——
Page 12, amendment No. 28.
Amendment No. 28. What line is that?
Yes. It sounds right there.
It sounds right in our own Bill.
It will read "his or her". I do not know what it will mean at that stage.
I am asking the committee to insert ". . . or any nominee of his or her".
"Her" is wrong. It is right the way it is.
All right, I withdraw my amendment.
Deputy Stagg wanted to hear you say that.
I move amendmentNo. 29:
In page 13, subsection (2), between lines 6 and 7, to insert the following:
"(c) he or she or any member of his orher household is in the process of acquiringland or property to which such a matter relates.”.
Effectively we are talking here about disclosure of interests, anything that might present a conflict of interest. We are setting down that, for the purposes of this section but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if he or she or any member of his or her household, or any nominee of his or her's, is a member of a company other than a body which has a beneficial interest in, or material to, a matter referred to in that subsection, or if he or she or any member of his or her household is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter. I am putting in another subsection, (c), that, in relation to possible land ownership, in other words, if he or she has acquired land or property in relation to this particular one——
Perhaps the Deputy would give us the reason for the amendment.
The reason is clear. We are trying to exclude the possibility of conflict. As we know, there is at least one forum sitting in Dublin Castle, if not a second, which is concerned with interest in relation to lands and so on. I propose to insert "if he or she or any member of his or her household is in the process of acquiring land or property to which such a matter relates", in other words, that it would relate to property concerning the airport itself.
The regulator could buy the land off the McEvaddy's. They have land near there.
When we debated this matter in the Seanad, Senator Taylor-Quinn used the term "considering", "thinking of" or something like that. We had a long debate on that and we asked how anyone could know what they were thinking of, but this is more precise because they have entered into a relationship with a solicitor, land owner or whatever. I think it is correct because land adjacent to an airport would be extraordinarily valuable to that airport for development purposes. I will accept the amendment.
I thank the Minister.
Question proposed: "That section 18, as amended, stand part of the Bill."
On the section, we are going to a lot of trouble and into much detail about the commissioner but we still have nothing inserted about a deputy commissioner or an assistant commissioner who will be able to do the same job.
Does the Deputy mean that the stipulation is put on the commissioner? That is what we had raised before lunch.
I am just making the point again that all this detail will apply to the commissioner. None of it will apply to the assistant commissioner.
That is a fair point, Chairman. If the commissioner suffered a minor stroke or something like that and was off duty for six months, with another person doing his or her job, all the painstaking criteria that we have built up for the employment of a commissioner would not be in place for the other person. I will certainly look at that. I will talk to the Deputy about it because I want to be clear on it. That is another "her's".
I move amendmentNo. 31:
In page 13, lines 36 to 38, to delete subsection (2) and substitute the following:
"(2) The penalties for contravening this Act shall be as per section 7 of the Air Navigation and Transport (Amendment) Act, 1998.".
This amendment concerns the penalties formisuse of information. I am proposing to delete the existing penalties of £1,500, which are inadequate.
This is for release of information.
That is right.
I believe a hefty penalty should be imposed on such people but advice on this amendment was formally sought from the Office of the Attorney General. The advice was that the Circuit Court penalty limit is suffice for the misdemeanour of the release of information. The penalty in regard to air navigation, which the Deputy is seeking, is for more serious crimes. The crime committed by somebody for which this would be the penalty would be a crime in connection with safety, which might imperil lives or whatever, and that would be an indictable offence, but this is the Circuit Court limit - is it £1,500?
Yes, £1,500 is stated here.
That is deemed to be for the unauthorised release of information related to business, and we took the Attorney General's advice on it.
The other aspect is up to £100,000.
Is it £100,000?
Section 7 of the Air Navigation and Transport (Amendment) Act, 1988, states that the penalty is £100,000, but we are not simply talking about information in relation to safety and safety considerations. We are talking about——
I did not say that. I said that the previous one related to safety matters.
In the case of somebody in a position of responsibility, such as the individual in question, releasing confidential information which is of a highly sensitive and possibly valuable commercial interest, the fine of £1,500 seems to be derisory in the context of the potential damage to the interests of the airport and the potential gain to the individuals involved. It seems a trivial offence. A fine of £1,500 is what one would expect to be imposed on someone cautioned for making poitín.
Does that apply to the District Court or the Circuit Court? The advice is that there are degrees of crime, and that fine is appropriate to the offence of releasing unauthorised, confidential information.
The section states on summary conviction, which means it must relate to the District Court.
Yes, the District Court rather than the Circuit Court.
If we were dealing with particular categories of information, the fines could be calibrated accordingly, but we are talking about possibly very important commercially advantageous information on airlines. It is big business.
Yes. Is a similar provision included in the legislation covering the electricity regulator?
Yes, for summary offences.
That is what I thought. There is a difference between doing something that imperils safety and lives, which is wrong. It is wrong to give confidential information, but it is not as serious as imperilling lives.
I will withdraw my amendment, but I ask the Minister to consider it for Report Stage.
The Attorney General's advice is not likely to change.
He may be of the view that it is possible to have such a case tried in the Circuit Criminal Court.
I thought this related to the District Court.
It is specified here as the District Court.
We could ask the Attorney General about that.
We are dealing with vast commercial interests involving major potential gains which would arise from the release of sensitive information.
When one considers the enormous contracts, licences and vast amount of material involved in the electricity market, which, if not kept confidential, could result in enormous benefits or damage to firms that apply for licences, theoretically, it would be even more potentially beneficial if private information was given. Yet, we included a similar provision in the legislation covering the electricity regulator and in the ODTR Act, which covers an area involving major benefits arising from licences for transmission.
Has the Minister got the Attorney General's note on this?
No, we studied all aspects and I specifically noted his advice. I can pass it on to the Deputy.
I would be pleased if the Minister would do that.
Yes, I will give the Deputy the information I received.
I will withdraw my amendment and ask the Minister to consider it for Report Stage.
Amendments Nos. 33, 36, and 40 are cognate to amendment No. 32 and they may be taken together by agreement.
I move amendment No. 32:
In page 14, subsection (6), line 21, to delete "subsequent".
I move amendment No. 33:
In page 15, subsection (8) line 12, to delete "subsequent".
Amendment No. 35 is an alternative to amendment No. 34 and they may be taken together by agreement.
I move amendment No. 34:
In page 15, between lines 35 and 36, to insert the following subsection:
"(2) Such part of levy as is imposed on an airport authority shall be an incremental and identified sum which shall be charged in addition to such airport charges as may be payable.".
The operation of the levy to fund the regulator should be as transparent as the charges, and that is not the case unless he specifies to what purpose he will put the levy. If Aer Rianta has an income of £500 million per year and he decides its levy will be, for example, £2 million——
That is the levy to support him and his office.
Yes, that is what we are dealing with.
It is also important for the body being levied to know where the levy is being applied, as it will be entitled to pass the levy on to its customers.
Yes, somebody has to pay it.
The levy could be 5% on the drink in the bar or it could be on car parking charges, but Aer Rianta should know on what it is to be applied. It should be incremental and an identified sum. The regulator will do that in reverse when he applies the charges in the interests of transparency to ensure that people know what is charged, but when the levy is coming the other way, to pay him, he will be entitled, as the Bill stands, to take, for example, £2,000 out of a figure of £50,000.
To support his office.
Yes. The amount would probably vary as a result of inclusion of this amendment, as there will be a cost involved in doing this.
Yes, the Deputy said it should be incremental.
Yes, it should be incremental and an identified sum.
As Deputy Stagg said, the emphasis is being put on transparency to ensure everyone will know where the money is coming from and, from the point of view of passing it on, the regulator will be able to verify its source, the reason for it and to justify it. It should be transparent and incremental.
We talked about that, but I did not clarify my full thoughts on it. The Deputy wants the amount the regulator will charge to be transparent.
The amount he will charge and the areas he will charge. There are various economic interests from which the levy will be derived.
I will be honest and say I am not clear on this.
Does the Minister need more time to consider it?
Yes. I discussed it yesterday and again today, but my thoughts are not clear on it. The purpose of wanting to have it identified in terms of where it will go is fair enough.
One of the reasons for that is to ensure that it can be passed on fairly and that not more than what has been derived by way of levy is passed on.
Yes. That is what we said this morning. I thought that might be the objective of the amendment. If it is agreeable to the committee, I will consider a similar amendment if tabled for Report Stage or I might table an amendment on it.
The Minister has taken the opportunity to revise her thinking, which is welcome. In doing so, she should take cognisance of the anxiety there would be about future investment and other decisions that might be made on that, even if there was current investment, the type of levies that would be applied and whether they would be proportionately linked to passenger numbers and airport services or capital based. Levies might end up as penal for both Cork and Shannon and, at the same time, become less of a factor——
No, he will use the levy for his office.
That is right.
The levy Deputy Carey refers to is only the levy for the running of his office.
How will the levy be related to airports? Will he charge it to the company and will the expenditure be proportionately applied?
The levy is for Aer Rianta and the IAA; the two companies will pay the levy. However, this levy relates to his office. Is the Deputy referring to any other levies?
I have undertaken to refer back to the Deputy.
There should be proportionality in the allocation of charges. The commissioner will eventually read the transcript of this debate and I am seeking the equitable distribution of the levy charge across the company.
Aer Rianta will pay it.
——and the IAA.
I understand what the Minister is saying but I am trying to make another point.
The Minister will reconsider the matter.
It is for the estimated operating cost of the commission.
That is right.
If I understand Deputy Carey, he is referring to the charges, which are being dealt with separately. They will be done on the basis of passenger numbers through airports.
There is a determination of how many passengers——
Aer Rianta is dealt with as a company. However, this is about the levy for the office of the commissioner, to furnish him with enough money to run the office. Both Deputy Higgins and Deputy Stagg want it to be shown that this is what the money is for.
How it will be collected is what concerns Deputy Carey.
I have not studied that enough. The idea seems fine but I think I am missing something in it.
It confers an ability to pass it on to where it is due.
What Deputy Stagg said and the formula in his amendment are important.
I move amendment No. 36:
In page 16, subsection (6), line 7, to delete "subsequent".
I move amendmentNo. 37:
In page 16, between lines 10 and 11, to insert the following subsection:
"(7) The Commission shall ensure that its own costs of operations are kept to a minimum and are not excessive.".
We are talking about levies, costs and recovery of costs. The amendment provides that the commission should ensure that its costs of operations are kept to a minimum and are not excessive. I am sure the Department of Finance has laid down this guideline for everybody.
It is not the intention that the commission would make profits. The amendment is good housekeeping so I will accept it.
I move amendment No. 38:
In page 17, subsection (2), line 6, to delete "other".
This is a drafting amendment.
Amendment agreed to.
Question proposed: "That section 27, as amended, stand part of the Bill."
We have dealt with this already. Will it be possible to table parliamentary questions on the operation of the commission and will they be answered?
Questions on the duties of the commission laid out in the Bill are not answered. It is Etain Doyle's job, for example, to deal with deflector issues. I was lucky, she was appointed two days before me and she took up the deflector issue. That was her job then and I did not answer for it.
The Dáil reform committee is deliberating on these issues at present. One of its recommendations is that Ministers would reply in the House to questions about State agencies, even though they do not have the responsibility they previously had for them. Deputies could get the information the Minister mentions.
Would a regulator be a State agency?
I am not sure.
I think the Deputy means Aer Lingus, VHI or the like.
They certainly will be included, regardless of whether the regulator is. The Deputy makes a good point. Maybe there could be some method of asking questions other than bringing the regulator before a committee once a year.
Deputies from all parties are complaining about this. When we were in Opposition we regularly did so. Deputies ask questions and sometimes I wince to see the answer I put forward which states that I have no operational responsibility for why something is or is not happening. It is correct that one does not have operational responsibility but in a way one has Dáil responsibility. I did not know this was being considered. Is there a Dáil reform committee?
Does it involve the Whips?
That is the committee that suggested a Member could call in the Dáil during the morning for the Minister for Public Enterprise, for example, to answer questions.
Not only that, we recommend that committees would be able, at two to six hours' notice, to request the Minister to come before them. That would happen during the committee week.
That is a good idea.
It should be pointed out that the current Minister for Public Enterprise has a good record in getting around the rule whereby she is not allowed to answer questions by simply answering. I thank her for that and hope she keeps it up.
I thank the Deputy.
Aer Rianta will be within the regulator's remit. Will Aer Rianta be required to draw up its accounts in the manner the commission or the regulator requires?
It is not possible at present to see a proper analysis of accounts. It is important in the context of, for example, Cork and Shannon where developments are taking place that we see exactly what our obligations are, what the write off is for new buildings and capital expenditure etc. This analysis must be available.
This provision empowers the commission to require the separation of accounts in respect of any activity regulated by the commission. This ensures that the commissioner has access to all necessary and relevant information in order to reach the appropriate decision in the charges determination.
With regard to my earlier proposal of a reduction in charges, the Minister gave a figure for Aer Rianta of 17%. However, that may not necessarily be the balance in the Irish context in so far as the traffic flows at Shannon and Cork would be different from the traffic flows at Dublin Airport and the percentages may vary as a result. Does the Minister expect the commissioner to carry out a full analysis of it?
Yes. He is required by law to get the full facts to enable him to make an analysis and, in turn, a determination.
Companies such as Aer Lingus had a similar power and it bought hotels in America and set up other companies. Must the commissioner have this information?
Yes. He will have all the information. I understand the Deputy's point, but he will require all the information.
I understand the regulated and unregulated business must be separated.
Is the Deputy referring to the single tail concept or the non-single tail concept?
It is the single tail concept. The business regulated in Shannon and Dublin and owned by the same company is not required to be separated in the accounts. However, Aer Rianta, for example, must separate Warsaw in its accounts.
All that must be taken into account.
They must be separated.
It is important that they are separated because the charges and what is covered should only relate to the regulated business. If there will be a supposition on the basis of income from Warsaw, there should be no charges at Dublin Airport. It is most important that they are separated.
As I said to various representatives I met - and I am glad it is included - it is also in the interests of the smaller airports within the State, such as Cork and Shannon, to be in the same bookkeeping system as Dublin. If they were separated they would be at risk. There is no requirement for them to be separated because they are regulated, but they might be separated.
However, they do not have to be separated.
It is possible; it is not excluded. I presume it is a cleverly designed section.
They are different ends.
I would be fearful that my colleague might press for something that would have a negative effect.
I make that point in the full knowledge that that would not be his intention.
There is some interest in having the office established outside Dublin and I encourage the Minister to consider the possibility of adding a provision under which the regulator would bear in mind Government policy on decentralisation, the aim of which is to relocate 10,000 civil servants outside Dublin.
There is a change on that front.
In terms of change, the only information I have is what I read in the newspapers. Deputy Carey asked about the official line. The provision allows the commission to make its own arrangements as necessary in relation to its offices. Given the difficulties at present in relation to office space, particularly in the city centre, and the competing demands on the asset list of the Office of Public Works, it was considered practical to allow the commission to deal with those matters itself.
Section 22 states that offices may be made available to the commission on request. The Minister said the commissioner is already located in Mount Street.
I understand that is only an interim measure.
Is he considering buying Aras de Valera?
That is in Mount Street too.
The commissioner is already in Mount Street but I presume he will not remain there.
We think that is of a temporary nature.
Did the Department lease that office to him under section 22?
It is an office of the Office of Public Works. The Deputy wants me to tell him to get out of town.
I want him to keep in mind that the Government has a policy of decentralisation.
That part is correct. The Government has a policy of decentralisation.
Perhaps the Minister could add a provision to the section under which the commissioner should bear in mind Government policy on decentralisation.
That would mean that he must decentralise and I cannot tell him to do so. I take the Deputy's point because the Government has a policy on decentralisation. I will communicate with the commissioner and outline the Government's policy on decentralisation. However, I will not put that in the legislation.
Previous Bills used to state that head offices had to be located in Dublin.
I do not remember such provisions.
Old legislation used to contain such provisions. Perhaps the Minister could consider the other point of view and state that such premises "may" be located outside Dublin. It would be a hint.
As the Minister is aware, the Aviation Authority's head office is located in Shannon.
There is a building available there and it could move in immediately.
We must also bear in mind the five civil servants. They may not want to relocate.
Some of the people will be from the Aviation Authority.
No, the current position is that they are from the Department. I will refrain from putting such a provision in the legislation, but I will say it to the commissioner.
Amendments Nos. 39, 41 and 42 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 39:
In page 18, subsection (3), line 11, to delete "order" and substitute "regulation".
These textual amendments were suggested by the Parliamentary Counsel.
I move amendment No. 40:
In page 18, subsection (3), line 12, to delete "subsequent".
I move amendment No. 41:
In page 18, subsection (3), line 13, to delete "order" where it firstly occurs and substitute "regulation".
I move amendment No. 42:
In page 18, subsection (3), line 13, to delete "order or".
Will the Minister give the explanation for the section?
I did not read the explanations for the amendments, but they are most revealing. The section outlines the scope of the regulatory regime in so far as airports are concerned. It provides that airports with annual passenger numbers of 1 million will be regulated. This excludes Kerry, Sligo and Knock Airports. A total of 1 million passengers must be going through the airport.
How many did they have?
Knock had up to 200,000 in July 1997. It would be approximately the same. The half yearly figures show that Donegal had 12,000 passengers, Galway had 56,000 passengers, Kerry had 85,000 passengers, Sligo had 13,000 passengers and Waterford had 9,000 passengers.
Effectively, under this section, the Minister can bring in more airports by reducing the figure.
It is one million, but I could bring it down.
The Minister could reduce it to 500,000 and bring in Knock Airport.
I could reduce it to 500,000 or 250,000. As it stands, it is one million, but it can be altered if necessary.
Enterprises will not want to be regulated.
They will not want to be regulated, although they will want money.
I move amendment No. 43:
In page 18, lines 16 to 18, to delete subsection (1) and substitute the following:
"(1) In this section and section 33, ’determination’ means a determination under subsection (2).”.
I move amendmentNo. 44:
In page 18, subsection (4), line 31, to delete "may" and substitute "shall".
Deputy Stagg and I have tabled the same amendment.
That is a surprise.
We are talking about the welfare and long-term stability of Shannon and Cork Airports. Subsection (4) states:
Where it appears to the Commission that two or more airports are either-
(a) managed by the same airport authority, or
(b) that they are owned by the same person and operate as a group of airports whose activities are co-ordinated by that person, any determination in relation to any one of those airports may be made by reference to the aggregate of amounts levied by way of airport charges at that airport and amounts so levied at the other airports.
We want to change that to "shall be made by reference to the aggregate of amounts levied by way of airport charges at that airport and amounts so levied at the other airports". It is important from the point of view of the three State owned airports that they are regulated as a unit. This is required in terms of market stability and the regional development of policy. Cork and Shannon Airports have smaller volumes of traffic than Dublin Airport. Regulating the three airports as a single unit will ensure that the airport charges at Cork and Shannon Airports are competitive with respect to Dublin. The relative scale of an expansion programme can be quite large in comparison to existing facilities. The smaller airports, therefore, need to be part of a larger group for the purposes of regulation to even out the charge implications arising from this type of development. That is the reason we tabled this amendment which we ask the Minister to accept. It is important from the point of view of the welfare and long-term stability and viability of Shannon and Cork Airports.
Deputy Higgins has made a good argument for this amendment. It is crucial for the development of Cork and Shannon Airports and for regional development that there is not a discretion. If there is a discretion, it could lead to all types of possibilities. I have no idea why the discretion was built in in the first instance. I urge the Minister to accept this amendment and to replace the word "may" with "shall". It would not be detrimental to do so. I see a lot of danger in leaving it open and having a discretion. There is nothing positive in doing that.
This provision is a discretionary power to the regulator to regulate the company as a group or as a separate entity. He is not obliged to regulate the three airports separately. The Deputies are saying he should be obliged to regulate the three of them together rather than looking at whether the glass is half full or half empty. Is that correct?
It is important from the standpoint of good regulation that the commission will be given sufficient flexibility to address the charges issue as each examination of the situation dictates. One can look at this both ways. The Deputies are saying that the smaller numbers at the smaller airports mean that Dublin must be subsidising Shannon and Cork Airports. We all know that must be happening because of passenger numbers and the general running of airports. I ask the Deputies to table a joint amendment again on Report Stage
I accept that.
It is an important point. If Shannon Airport was told to be a stand alone operation, there would be difficulties. Perhaps the same is true for Cork Airport. However, there is a bigger operation in Shannon and the numbers are greater. I ask the Deputies to table the amendment again on Report Stage.
We will withdraw the amendment and retable it on Report Stage.
The Minister should remember that the national airline acceded to pressure from smaller airlines to compete on a route and then increased its charges when the competition was exhausted.
I presume the Deputy means the fares.
Yes. Aer Lingus has continually done this. It has used Shannon Airport in that way. We are concerned about the difficulties of operating an airport without a major catchment area. The Minister is saying she accepts that the regulator would have this understanding.
I said the amendment will be resubmitted on Report Stage.
I move amendmentNo. 45:
In page 18, subsection (5)(a), line 36, after “for a” to insert “minimum”.
Section 32(5)(a) states that a “determination shall be in force for a period of 5 years”. I want to include the word “minimum” so it states that a “determination shall be in force for a minimum period of 5 years”.
It could go up to 25 years after that. I would not be inclined to accept the amendment. Five years is a significant amount of time before there would be another determination. If we include the word "minimum", what would be the maximum? It could be 20 or 25 years.
It is five years at present.
The word "minimum" is probably superfluous.
Yes. It is five years now. There will be a review in two years and a fresh determination in five years.
I move amendment No. 46:
In page 19, subsection (7)(b), lines 13 and 14, to delete “circulated” and substitute “circulating”.
I move amendment No. 47:
In page 19, subsection (7)(c), line 17, to delete “order” and substitute “determination”.
This is a technical amendment. The term "determination" is the correct one and is used in all relevant provisions.
Amendment No. 48. Amendment No. 1 to amendment No. 48 is related. Amendment No. 1 to amendment No. 48 and amendment No. 48 may be discussed together by agreement.
I move amendment No. 48:
In page 19, subsection (12), line 36, after "State" to insert "or by such other means as the Commission may determine".
I move amendment No. 1 to amendment No. 48:
To delete "or" and substitute "and".
If the word "or" is included, the commission may dispense with newspaper advertisements. That is highly undesirable.
Is the Deputy referring to new ways, such as the Internet?
Yes. Newspaper advertisements are the best format. I remember the same argument was made during the discussions on the Planning Act. It should be left in the newspapers as well.
I accept the Deputy's amendment to my amendment.
I move amendment No. 49:
In page 20, subsection (14)(a)(i), line 2 to delete “or” and substitute “and”.
This is a similar amendment but is in a completely different context. Section 32(14)(a) states:
The Commission may on or after the expiration of a period of 2 years after the making of a determination-
(i) if it considers that there are substantial grounds for so doing, or [I suggest "and" rather than "or"]
(ii) at the request of an airport authority or user concerned in respect of the determination,
If the Bill states "or" any user for which we have not got a definition - it could be a taxi driver——
Are we taking this amendment with amendment No. 48?
No, this is separate. This is amendment No. 49 in the name of Deputy Stagg.
It says here amendmentsNos. 48 and 49.
No. Amendment No. 48 and——
Amendment No. 49——
Amendment No. 1 to the amendment and amendment No. 48 were taken together. We dealt with amendment No. 1, which amended the Minister's amendment. That was agreed. This is amendment No. 49, in the name of Deputy Stagg, to section 32.
The Deputy wants to delete "or" and insert "and".
If we leave the word "or" there, it would allow anybody to demand a two year review. Such a request from anybody at all is now possible but it would only be accepted if the commission considers that there are substantial grounds for doing so. If one takes out the word "or" and substitutes "and", then one has the request and that together.
If it considers that there are substantial grounds for so doing but the Deputy is saying "and" at the request of an airport authority or user concerned in respect of the determination.
If we leave the word "or" on its own, every two years there will be demand for review and people will be entitled to it. They will have to get it because they are two separate conditions.
Deputy Stagg is linking the two.
I am linking the two with the word "and". The commission would have to say there are substantial grounds for doing so and have a request.
We looked at that.
The Minister should be able to get over that - a request with substantial grounds or substantial grounds without a request. The Minister needs to rewrite that. With the word "or", the smallest user of the airport could insist.
That was not our intention.
I know but that is——
Looking at it now, it could be the outcome.
If the Minister could redraft that piece——
We will come forward with something ourselves.
Essentially what I am saying is that there should be substantial grounds——
I know exactly what the Deputy means.
——and a request or substantial grounds.
The Deputy means in both cases.
I move amendment No. 50:
In page 20, subsection (15), line 12, before "charges" to insert "airport".
It should read "airport charges" instead of "charges".
I move amendment No. 51:
In page 20, subsection (15), lines 12 and 13, to delete "at an airport to which this section applies".
The question of an appeal——
We are coming to that.
——has been subsumed. There is no mention of——
We are coming to the appeals section.
When we talked about definitions and so on at the beginning, we were told we would move on to airport charges. There is no mention of appeal in regard to airport charges.
We are coming to an appeals section.
We are grinding slowly to it.
It is in section 38.
We have to deal with section 33 in the meantime.
I move amendmentNo. 52:
In page 20, before section 33, to insert the following new section:
"33.-The cost of meeting international obligations shall be included when assessing and setting the level of airport charges.".
We should look at the full picture from the point of view of the obligations made nationally and internationally.
I think that is already in the Bill.
It is further on.
Section 33(i) states: "such international obligations as are relevant to its functions."
I have an amendment to that stating "national and international".
We will accept that when we come to it.
I move amendment No. 53:
In page 20, between lines 23 and 24, to insert the following:
"(b) environmental protection and noise pollution reduction and the desirability of structuring charges so as to reduce noise,”.
We have set down regulatory objectives in this section. I see it as vitally important that we would use the charges, or system, to ensure environmental protection, particularly noise level protection, at our airports. This is seemingly a standard use of charges internationally. There are lesser charges for aircraft with lesser noise.
Did Deputy Stagg take this from the UK Bill?
No, but there is a reference in the UK Bill to it. They have it and they have it in Europe. It is a general use measure where there is regulation - special consideration is given to low noise craft. They enjoy positive discrimination. It is something we need to look at because this will be the only opportunity we will have for a long time to do so. With the increased volumes of traffic at Dublin and the other airports, noise pollution is a real issue. My colleague, who is here——
He came in when he heard the Deputy speak on this.
I have a number of things to do today.
Deputy Sargent is right; this is his issue.
I am glad Deputy Sargent is here.
I am listening carefully Deputy Stagg - keep going.
There is an opportunity now that we are putting a system in place for arriving at charges and for a regulator to regulate them to look at environmental protection and noise pollution and at how they can be positively dealt with in the context of charges.
I thank Deputy Stagg for having the foresight to put down this amendment. On the Dublin Airport issue in particular, the Minister will have, if she has not had already, representations, particularly in relation to the planned runway and the effects on Portmarnock and, previously, the effects on the St. Margaret's area in the other direction. There is no doubt that if the airport is to be an acceptable neighbour, it will have to be very clearly stated that residents in the area are not the victims of that development. We had that problem in the past when the EPA Bill managed to get through the Houses of the Oireachtas and avoid, or omit, consideration of aircraft noise in its noise pollution section. The reason given at the time was the strategic interests and not getting in the way of those strategic interests and so forth. Nowadays, it would not be acceptable to override people's basic quality of life on that basis. We should look at this to keep us in line with other European countries which are far stricter in many of their airports——
Under environmental legislation.
——when it comes to night time flying, certain restrictions on noise levels and considerations of that nature.
I speak of Dublin Airport from personal experience. The flight paths could be more strictly adhered to. There seems to be a tendency to come in using visual tracking rather than coming in along——
That came up on Second Stage.
It did and I am not going to rehash Second Stage. I want to ensure Deputy Stagg's amendment has the best chance of being accepted. If it can be accepted at this stage, many people would be very appreciative.
I thank both Deputies. Deputy Stagg speaks of environmental protection, noise pollution reduction and the desirability of structuring charges so as to reduce noise. Is the Deputy saying that charges, as determined, should embrace whatever it would cost to reduce noise?
I am saying that people with low noise aircraft should be rewarded with lower charges and there should be positive discrimination in respect of operators who protect the environment and reduce noise pollution.
Where did the Deputy get the wording for the amendment?
We made it up ourselves.
It is essentially for the Environmental Protection Agency. Why does the Deputy not table amendments to that Bill?
I have tried. This is an opportunity.
I understand that when other airports in Europe talk about regulatory objectives, they include this.
I asked someone if this was in UK and in other legislation. They did not know and they are going to find out for me.
I would be happy to withdraw the amendment at this stage.
It makes sense if one can, even in a small way, encourage the use of less noisy aircraft. Is that not what the Deputy is saying?
Yes, less noisy aircraft. There are other environmental protection issues at an airport which I have not identified.
We will undertake to look at similar UK legislation and that of another country in Europe to see if they have a provision like that or similar to it. They have all been down the path of regulation.
This is important for the public.
It takes away from the purely mechanical aspect of regulation. We will check that and come back to Deputy Stagg informally between now and Report Stage and we will see what the next stage should be.
Amendment No. 54 was taken with amendment No. 12. Amendment No. 12 was withdrawn.
I move amendment No. 54:
In page 20, between lines 28 and 29, to insert the following:
"(d) the contribution of the airport to the region in which it is located,”.
I withdrew amendment No. 12 because it was wrong. I did not withdraw amendment No. 54.
The Deputy discussed it.
I did not really discuss it. These amendments bear no relationship to one another. I do not know how they were lumped together. This is a very important amendment for the regional areas. The contribution of the airport to the region in which it is located should be in the regulatory objectives. I would appreciate a little latitude, Chairman. We should have, as a regulatory objective, the contribution of the airport to the region in which it is located.
If Deputy Stagg looks at section 10, it states: "The Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located)".
Yes. That is good there, and we talked about it for a long time. When we come to the regulatory objectives, it is appropriate to state it again so it is not lost.
It has already been done but there is no harm repeating it.
Amendment No. 55 in the name of Deputy Stagg is related to amendment No. 56 and both may be taken together by agreement.
I move amendment No. 55:
In page 20, paragraph (d), line 30, after “other” to insert “airport”.
Section 33(d) should read: “the level of the income of the airport authority from airport charges at the airport and other airport revenue earned.”
Does the Deputy want to insert after the word "other" the word "airport"?
Yes, otherwise one could take into account revenue from the Great Southern Hotels, for example. I think it was intended to state "airport" there. It should read "the level of income of the airport from airport charges at the airport and other airport revenue earned by the authority".
The Deputy is saying at airports rather than at any other activity in which it might be engaged.
What about their overseas investment?
I do not know whether they can touch them anyway.
The way they are set up -
No, I do not think one can take them into account. In deciding the charge for an airplane flying out of Dublin Airport, the commissioner will not be able to say Aer Rianta has £2 million from duty free sales in Moscow which it will dock from what it will get for running the airport in Dublin, otherwise all of its profits would be cancelled before it could get any charge in Dublin. The Bill will not let the commissioner do that. Am I right?
The amendment provides that after the word "other" the word "airport" should be inserted. The Deputy said we should consider only the revenue accruing from an airport and use it to determine charges. We believe the regulator would take account of at all the moneys accruing to the company and would then examine the distribution of charges, although I do not know if that would be a good idea. I am inclined towards the Deputy's amendment.
If Aer Lingus had £100 million profit from its overseas operations, it could not charge anything in terms of Dublin Airport.
The Deputy means Aer Rianta.
Yes. If it had a large profit from its duty free sales and management of other airports, its profit would be wiped out before it could charge Dublin anything.
It would not be able to build up capital