Wednesday, 25 October 1995
Dáil Éireann Debate
“, unless the vessel makes any use of the facilities including navigational, buoys and lights or any service available in the other harbour; and in such instances the rates chargeable for the use of such facilities or services shall be those being charged immediately before the enactment of the Harbours Act, 1995 in respect of vessels so passing through such limits, or such rates as may be determined by the port company from time to time”.
Mr. Browne: (Wexford): When debating this amendment before lunch I was amazed at the unanimity Waterford Deputies displayed about what is best for Waterford, and what they proposed would be detrimental to New Ross Port. The ability of a port company to levy charges on vessels traversing its harbour en route to another port places the latter port at a competitive disadvantage. It is obvious the amendments stem from the current practice by Waterford Harbour of levying local light dues on all traffic using the Waterford Estuary. The  imposition of such a charge is inequitable as New Ross ships, which leave Waterford jurisdiction at Cheekpoint, are charged the same rate as vessels that go all the way to Waterford Port and use a larger number of lights and buoys. As the lower reaches of the Suir Estuary provide access to both New Ross and Waterford ports, they should have joint jurisdiction over the area between the sea and Cheekpoint. If those charges were levied in full on New Ross Port it would go on a long way towards putting it out of business. The Minister's amendment gives an unfair advantage to Waterford Port because it takes into account the practice of imposing a levy for local lights. Even at this late stage, the Minister should consider carrying out an independent investigation into how such a practice is advantageous to Waterford and adversely affects New Ross.
Minister of State at the Department of the Marine (Mr. Gilmore): On Committee Stage the section dealing with harbour charges was amended by the insertion of subsection (8) which provides that a ship bound for its port of destination is not liable for harbour charges if it must traverse or anchor in the harbour of another port company. This amendment was tabled to cater for harbours such as Foynes and New Ross, whose ships must traverse the waters of Limerick and Waterford harbours, respectively, to reach their destinations. It will ensure that ships travelling to, say, Foynes and New Ross will be exempt only from harbour dues. If another port company provides a service or facility for a ship traversing its waters, on the basis of this amendment, it will be entitled to charge for such service or facility which could include, for example, lights and moorings. Obviously, services provided by a port company must be paid for by the body using them. My amendment covers what Deputy Kenneally's amendment proposes and, consequently, I request that he withdraw his amendment.
Section 102 (6) of the Harbours Act,  1946 provides that harbour rates shall not be chargeable in respect of a vessel passing through the limits of another port to reach its port of destination unless the vessel makes use of the facilities available in the other harbour. The purpose of my amendment is to retain the status quo in this regard and is not to give advantage to one port over another.
Mr. Kemmy: I am very familiar with the position at Foynes and Limerick harbours. The Minister could have taken another route in respect of those harbours and I have spoken to him in private on this issue. If one authority had jurisdiction over the estuary, the Minister's amendment would not be necessary. While it is a delicate matter, I cannot allow the Minister's amendments pass without putting matters in context. It would be much better if one authority was established to deal with the Department and multinational and domestic firms wishing to locate in the Shannon Estuary. It is not acceptable that two authorities should have responsibility for the estuary as that will merely encourage smaller ports, such as Kilrush or Tarbert, to set up port authorities. Such fragmentation is not good for the country.
Deputy Finucane misled the Minister when he claimed there are 400 dockers in Foynes. If that was true Foynes Port would be one of the largest in the world, similar to Melbourne or Sydney. The reality is that there are approximately 60 full-time dockers and a number of others who work on a casual or occasional basis. The Limerick Harbour Commissioners have agreed to try to sort out the difficulties in respect of Foynes on the basis of negotiations. The Minister mentioned the referral to an arbitrator of the matter relating to the enlargement of Foynes Harbour. That is a civilised way of dealing with the matter but I would like the arbitrator to take a further step and bring unity to the Shannon Estuary authorities. As large firms, such as Aughinish Alumina and the ESB, operate in the estuary, it  is important that professional shipping services are available there.
While I support the Minister's amendment, he should use his good offices to unite the various estuarial authorities. In a country with a population of approximately 3.5 million it is nonsensical that they are so fragmented. Our waterways are a valuable resource. As a former trade union official, the Minister has experience in this area, but perhaps his hands are tied by political pressures. However, it does not make sense to have two authorities operating in the same estuary. It would be far better for everyone if they worked in unison.
Mr. Finucane: I welcome Deputy Kemmy to the debate. I did not hear him contribute on Committee Stage. If he had attended the Committee Stage debate he would know I did not say there were 400 full-time dockers in Foynes. I said that at times there could be as many as 400, depending on the amount of shipping in the port.
To resurrect the issue of a Shannon estuarial authority at this late stage is to whistle in the dark. We are discussing the Harbours Bill and Foynes and Limerick harbours will become the Shannon harbour authority. I do not wish to go down a cul de sac in discussing issues that are not relevant to the debate.
Mr. Finucane: Under this amendment the Minister is trying to protect the position of New Ross and Foynes harbours in respect of harbour dues. However, he stated that if such ports use the services or facilities of Limerick or Waterford harbours it may be necessary to charge them. While I know what the Minister is getting at, when the Bill is enacted what redress will ports such as Foynes and New Ross have if they consider the fees charged by Limerick and Waterford harbours excessive? Can we ensure fair play in this matter?
Mr. Bell: This section was dealt with at length on Committee Stage. While I appreciate the difficulties that exist between Foynes and Limerick, a great deal of time was spent debating that matter on Committee Stage and I thought there was general agreement on how it should be resolved. While I appreciate the difficulties to which both Deputies referred, other ports experience similar difficulties. As Drogheda Port cannot facilitate ships over a certain tonnage a portion of some ships' cargo must be offloaded at other ports. It seems logical that since part of the cargo would be unloaded at another port, Drogheda could not claim payment for the total cargo. Payment would have to be made on a shared basis, and the Minister's amendment adequately provides for that.
Mr. Molloy: The Minister will recall the discussion we had on the Limerick Harbour Commissioners and the Shannon estuary ports company. This amendment refers to the close proximity of these two companies. The Minister informed the committee that he had appointed a mediator to deal with the limits on harbour committees and that in the event of the mediator reporting to him he would put forward suitable amendments on Report Stage, otherwise he would take the action provided for under the Bill when enacted. Since the mediator has now reported to the Minister, will he inform the House of the decisions in the matter?
Mr. Kenneally: Anybody who provides a service must be paid for it. The sea buoys and lights in the lower estuary, referred to earlier, cost approximately £16,000 each. Somebody must  pay for that service. Waterford Harbour Commissioners are undertaking a capital programme, at a cost of £129,000, to maintain the highest standards in that area. Obviously there are Revenue implications involved also and that is why I put down my amendment. The objective of the Minister's amendment is similar to that of mine and I am prepared to withdraw my amendment.
“Provided that this subsection shall not prevent the said company from imposing harbour charges in respect of any service it performs, facility it provides or equipment it hires in relation to a ship aforesaid whilst the ship is in its harbour.”.
An Leas-Cheann Comhairle: Amendment No. 12 in the name of the Minister. Amendments Nos. 15, 16 and 30 are related, Nos. 13 and 14 are consequential on No. 12, No. 17 is consequential on No. 16 and No. 29 is consequential on No. 30. It is suggested therefore, that amendments Nos. 12 to 17, inclusive, and 29 and 30 be debated together.
We will deal with the points raised by Deputy Molloy at a later stage and I will be happy to address them then. There was strong opposition from all Deputies in the select committee to the provisions of section 15 (1) of the Harbours Bill which requires port companies to give the Minister two months' prior notice of all proposed sales and leases of lands. The general view was that this requirement was at variance with the principal aims and intentions of the new legislation to give the port companies commercial freedom and flexibility. I advised the select committee that I would consider the concerns raised by Members and that I would consider amendments to this section for Report Stage.
This matter has been further considered and I am pleased to advise Deputies that I am proposing the deletion of section 15 (1) from the Bill and its replacement with a number of new provisions which I wish to detail for the House, first, that a new subsection (1) be inserted in section 15. The new subsection — amendment No. 12 — provides that decisions on sales, leases and acquisitions will be a reserved function of the boards of directors of the new companies. Second, that new provisions be inserted in section 28 requiring the chairperson to furnish in his or her annual report to the Minister details of all sales, leases and acquisitions of land envisaged over the coming 12 months and details of any transactions of this nature that had taken place over the previous 12 months and which had not appeared in the previous annual report — amendments Nos. 15 and 16 refer. Third, that a new paragraph be inserted in section 44 (1) which will empower the Minister to issue directions to port companies requiring them to comply with policy decisions of a general kind in regard to the sale, leasing and acquisition of land — amendment No. 30 refers.
 To summarise, decisions in regard to the sale, leasing and acquistion of land will be a matter for the board of directors of each of the companies. The directors, in arriving at such decisions, will be required to comply with policy decisions of a general kind issued by the Minister in this regard and the chairperson, in his or her annual report, will be required to furnish details of all such transactions envisaged over the coming 12 months, with a description of all such transactions that had taken place over the previous 12 months.
The original intention of section 15 was to ensure full accountability by the new companies in regard to the sale and leasing of property and in particular to prevent any possible indiscriminate sale or long-term leasing of State property which is in the care of the company concerned. The form in which the original section 15 (1) sought to achieve these objectives was considered by Members of the select committee to be too restrictive. The new measures which I propose will achieve the same objective of ensuring accountability and protecting State-owned property by providing for a regular system of reporting of the company's activities in terms of its property portfolio, by providing a means by which the Minister can give a general policy direction to a company in terms of property acquisitions, leases and disposals and by providing for decisions in regard to property matters to be reserved to the board of directors who, in the final analysis, are accountable to the Minister. I am satisfied that this approach will ensure accountability by the boards and protect State-owned property while at the same time allowing the boards of the companies the freedom to make decisions on property matters having regard to the commercial requirements of the company.
Mr. Kenneally: I welcome this amendment. In recent months a very worrying trend has developed whereby, not only in this but in other areas, we  have vested greater power in the Minister and, by implication, in civil servants. Harbour companies were established which would operate on a commercial basis but we are tying their hands behind their backs. We must trust these companies to do what is right and proper in their areas. The change proposed by the Minister to give the boards power to do what is necessary regarding land acquisitions and so on is very welcome and will be welcomed by the various companies.
Mr. Molloy: We had a long discussion in the select committee on the proposed controls under which the new companies would operate. Some of the provisions, this one in particular, directly contradict the declared objective of freeing up the harbour boards to become commercial enterprises in every sense of the word. The level of control the Department sought to impose went against that declared objective. There were indications that legal challenges might be brought against the Bill if it passed through the House in its present form. That view was expressed by a Price Waterhouse consultant at a seminar on the Bill about which the Minister is probably aware.
I agree with Deputy Kenneally that there has been a trend recently, particularly since the rainbow Government came into office, for Departments to seek increasing control over affairs when legislation is being introduced. The power of the semi-State sector to operate in the commercial market is being restricted by new provisions proposed under different legislation, not only in this Bill. Senior executives of the ESB have screamed in the public media about the Department seeking to take control. I might have other views on that matter, but it is interesting to hear the complaints and objections from that source.
I am pleased the Government accepted the arguments we made on Committee Stage and agreed to make these amendments which will go some  way towards alleviating fears that, rather than creating harbour companies with freedom to operate in the commercial arena without restriction, we were setting up new State companies which would come more firmly under the control of the Minister, the Department and its officials. This House must guard against that. It is not in the interest of the country that semi-State structures should be controlled in that way. It is in the interests of the economy and achieving our objectives for full employment that we should privatise many semi-State companies. If we did that we would get much better value and service, but that is an argument for another day. This legislation is probably a step down that road and the next one may be full privatisation. The objective of the Bill was being contravened in the requirement that permission would have had to be sought from the Department before property was leased, bought or sold. That requirement would interfere with the commercial operations of the executives and the board. The Minister accepted that the weight of the argument in the House was against that provision and in so far as it goes I welcome the amendment.
Mr. Bell: I welcome the Minister's decision in this regard. The matter was well debated and teased out on Committee Stage. I am pleased the Minister has taken on board the comments in this regard from all sides of the House. The main complaint by harbour authorities concerned the lack of flexibility within the existing regulations which tie them to seeking a ministerial decision in respect of virtually everything they seek to do. Flexibility in that regard will be welcome at local level. However, to ensure that this section is not abused — there will be some monitoring as the boards will have to report back to the Minister on all transactions — some criteria should be laid down. Much controversy has surrounded the sale of public lands and buildings in recent years, and that issue has been raised in recent weeks. Some guidelines should be given  to boards to ensure flexibility is not abused and that there will be uniformity of action nationally.
Mr. Cullen: I breathe a sigh of relief at the way in which the Minister has dealt with this section. I argued strongly on Committee Stage that section 15 as it then stood would strangle the commerciality of the Harbours Bill at birth. It was against everything one would interpret as being commercial. The Minister has taken a major step forward by removing lines 12 to 37 and allowing companies make commercial decisions. However, as on Committee Stage I sound a note of warning. The Minister's amendments have the effect of requesting companies to forward in their statement of accounts details of sales of lands or assets, leasing or other transactions over a 12-month period. Commercial decisions cannot be based on pounds, shillings and pence. Life is not like that. Such decisions involve a large number of factors of which the financial implications are important but they are not the only criteria. If someone checks the accounts of a harbour company in two or three years time and notes the proceeds from the sale or leasing of land and takes that bald figure, politicians will be running out of this House talking about abuse, cosy cartels and all sorts of nonsense on the basis of a figure appearing in a book. The background to that figure may have involved lateral thinking on the part of a port company which may have considered the whole commercial operation in terms of seeking to attract a commercial company that would have boosted the sustainability of the port and would have been an asset in terms of the company being able to access European markets. Ireland more than any other country is dependent on access to Europe as it is an island nation on the western periphery of Europe. We must think of the broader picture of what commerciality means. It does not mean the simplistic State view of the figure at the bottom of the line.
 The Minister has taken this step forward and it leads to the area of commerciality. We should not kid ourselves. If we think we are seriously making the semi-State sector commercial by introducing the type of legislation that has passed through this House recently, we should think again. The semi-State sectors of other EU member states reveal — I am not talking about privatisation — that political involvement in commercial companies is being removed and that is only right. It is a contradiction to talk about real commerciality while the long arm of politicians and Government Departments interferes.
I reject the notion I constantly hear in the House, one to which Deputy Bell referred, that we must keep an eye on these people, as if everybody involved in semi-State companies is abusing the system. The reality is that they are not. Excluding the odd questionable deal that has occurred, those people, from the top to the bottom, are honest and hard working. I reject the notion emerging in the House that we great politicians must keep an eye on those people, as if they were all up to skulduggery. Speaking on behalf of those involved in business, although I have no involvement in business, I reject that view. The notion of such abuse is nonsense. It is time we stopped the insidious reference to it as if everybody would abuse the system if we did not police matters. That is not the case. These people have served us extremely well. The Minister's amendment, in the context of commerciality, is a step in the right direction but it will not be sufficient.
The Bill provides for ministerial involvement at all levels as if some controlling measure had to be there. I reject that notion because companies are competing for business on a European and world market not on a domestic market. They will not be able to meet competitors on a true commercial basis if there is continued involvement and questioning by politicians in this area. I have much more confidence in the semi-State companies than many Members seem to  have. It is deplorable that lack of confidence in the semi-State sector is being used as some kind of political platform. It contributes nothing to good public debate or to the development of our semi-State sector.
I hope, in the context of this amendment, we will see a more enlightened approach not only from the Minister's Department but from the Government and that other Ministers dealing with legislation on the semi-State sector will realise that we have to trust the people who run the companies to make commercial decisions at the right time in the interest of their employees, and the tax-payers whom they represent. Following the Committee Stage debate I welcome the fact that the Minister has brought forward this amendment.
Mr. Finucane: I do not intend to make a long speech on the merits of all the semi-State companies. It is obvious the Minister has recognised the genuine concerns expressed on Committee Stage regarding the controls and restrictions on the sale or lease of lands in the past. I compliment the Minister on reacting so positively to the suggestions. It is a positive amendment and a step in the right direction.
Mr. Browne (Wexford): I welcome the Minister's change of heart. It is obvious he was listening to the debate on Committee Stage. Many contributors spoke against the involvement of the Department and the Minister in the day to day affairs of the companies. In the short time I spent in the Department I realised that civil servants and the Department like to keep power at the centre. I am pleased the Minister did not go along with that and has decided to bring in this amendment. I hope this will release companies to do what they have been set up to do — to be commercially viable, to make a success of the job on hand, to represent the areas in which they are involved and to create jobs without being hamstrung by the  day to day involvement of Departments or the Minister.
Mr. H. Byrne: I too commend the Minister on his acceptance of the recommendations on Committee Stage. He has gone a long way to meet our requests. Ministerial intervention should be limited. One of the main reasons we sought to change the Minister's mind was on the basis of practicality. If a simple lease was required in a hurry we considered that going to the Minister's office might delay things. The Minister as well as everyone else in this House knows that immediacy in ministerial offices is not always interpreted as we would interpret it. I commend the Minister on introducing the amendment which will improve the Bill.
Mr. Gilmore: I thank all the Deputies who have contributed so positively to this amendment. A number of issues have been raised in the course of the discussion. I do not propose to deal with them all, however, I would like to respond to a number of points specifically. Deputy Molloy seems to offer privatisation almost with the same monotony that many people of my political persuasion used to offer nationalisation as a panacea for every economic problem. The issue of privatisation was addressed and rejected as an option by the Murphy report.
There are good reasons that the ports should remain in public ownership. They were underlined in the Murphy recommendations and are the basis for the format being put forward in this Bill. The main ports should be established as commercial semi-State companies. In the vast majority of economies, the ports are publicly owned facilities. If we look at those ports in private ownership, we would not necessarily want to repeat some of the experiences. Deputy Bell raised the question of protection for the companies.
Mr. Gilmore: The position is that the companies will have to report to the Minister, through the chairperson's report, on their plans for property acquisition and property disposal. During the course of a year they will also have to report to the Minister, through the chairperson's report, on the disposals and acquisitions during the year in question. Obviously that is in the interests of the ports being accountable to the Minister for the general transaction of their property portfolio. In addition, one of the amendments I am proposing here provides that the Minister may give general policy directions to port companies on the issue of disposal and acquisition of property.
Deputies Cullen and Browne raised the issue of some hidden wish of the Minister or the officials of the Department of the Marine to be involved in every detail of port activity and commercial decision-making in the ports. That is not the intention in this Bill. Deputies will recall that on Committee Stage I proposed an amendment to section 44 that specifically provided that the directions to be given by a Minister on the conduct of a port's business was not to include the day to day decision-making but was to refer to matters of general policy. A distinction has to be made between the management of a company's management portfolio and the conduct of its general commercial activities. There is a difference.
We are not seeking day to day involvement of Ministers or of the Department of the Marine in conducting the affairs of the port companies. They are being established to do a particular job but it is right that these port companies, as they are responsible for publicly owned facilities, are accountable to the Minister and report to the Minister on a regular basis on what they are doing and that directions of a general policy kind may be given by the Minister. It is a question of striking the balance between the commercial freedom——
Mr. Gilmore: I know of very few owners of a company who would not want their board of directors to report and be accountable to them, nor do I know of the owners of many companies who would not want to be in a position to give general policy guidance to their boards of directors from time to time.
Mr. Gilmore: In that situation the Minister, as the custodian of the tax-payers' and the public interest in relation to the ownership of these companies, will exercise that function. It is a question of balancing the commercial freedom of the ports with the need for accountability, reportage and the conduct of the important port business in accordance with national policy.
In page 26, line 53, after “company)” to insert “and, so far as such a description is not included in such a statement, a description of any acquisitions or disposals of land made by the company during that year, a description of which had not been  included in a report under this subsection for the preceding accounting year”.
This amendment is self explanatory. It requests that provision be made in the performance audit to recognise the non-profit producing expenditure allocated to the maintenance of recreational and amenity facilities. On Committee Stage Deputy Smith signalled he would withdraw his amendment on the basis that  the Minister would consider the matter for Report Stage. I do not see any amendment from the Minister in this regard and perhaps he might comment on this area.
Mr. Cullen: We want companies to keep in mind that their area of operation and expertise can be as wide as possible. There are obvious opportunities for spending on maintenance of recreational and amenity facilities, not that I expect all new harbour authorities to spend scarce resources in areas where they might lose money or may not have much of a return. We are simply saying that should be taken into account because harbour authorities engaged in some specific development might see a recreational or amenity opportunity emerging that could be availed of while some other substantial development was taking place. We should recognise that such circumstances could occur, that they could be taken into account when examining the figures in a performance audit and that it would not negate the efforts made in the core facility. It would merely recognise that recreational and amenity facilities are important and should be nurtured.
Mr. Gilmore: Deputy Browne referred to the discussion on Committee Stage but it is fair to say that on Committee Stage we discussed a batch of amendments which dealt with proposals from Deputy Smith in relation to including, in the general objectives of companies, a brief for leisure and amenity purposes and that they would also take into account environmental considerations. As Deputy Browne knows, I moved amendments to that effect earlier in this debate and they were accepted by the House.
I do not agree with this amendment because I do not believe it is necessary. What Deputy Browne is seeking is an issue that will be taken into consideration in the context of performance audits. Many ports incur expenditure on the maintenance of recreational and amenity facilities and that can vary from port  to port. It is an area of expenditure that can be outlined in the chairperson's annual report to the Minister if so desired by the company. It is not necessary, therefore, to include it in the legislation.
An Ceann Comhairle: Amendment No. 19 is in the name of Deputy Browne. I observe that amendments Nos. 20 and 21 are related and I am suggesting, therefore, that we discuss amendments Nos. 19, 20 and 21 together if that is satisfactory.
In recent years we have come to realise the value of chambers of commerce. They take a leading role in business and community involvement and have their finger on the pulse of many of the happenings around the country. They have proven their commitment to local communities time and again and it is important they have a role to play in the new boards. In the past, there were representatives of chambers of commerce on harbour boards and I do not see why that should not continue. I realise this matter was argued trenchantly on Committee Stage but the Minister was reluctant to accept amendments. I ask the Minister to reconsider this matter because chambers of commerce are very much part and parcel of business development in our towns and cities. I ask the Minister to consider allowing  members of chambers of commerce serve on the harbour boards.
Mr. Bell: This matter was considered in detail on Committee Stage when the Minister clearly indicated in his reply that he would welcome nominations from chambers of commerce or other organisations associated with business, commerce and maritime activity in local communities. If this amendment is accepted it is possible there might be more than one or two members of chambers of commerce nominated to these boards. There would be more flexibility, however, if the current position obtained. The chambers of commerce will be the nominating bodies. They should identify people with business interests who might be considered for nomination to these boards and their names should be forwarded to the Department for consideration when the new boards are being set up. In that way there may be four or five members of chambers of commerce on these boards rather than only one or two. I served with many fine people on harbour boards down through the years. I am sure that any Minister will have to consider seriously the list supplied by a body such as a chamber of commerce operating within the port authority area. It cannot be compared with the nomination of, for example, a worker-director who will have to be elected and re-elected. There is a different procedure in chambers of commerce where people can be nominated by the chamber. A worker-director will have to stand before the people and be elected in the normal democratic way. There is no comparison between those two procedures.
In my area three local authorities straddle the River Boyne, namely, Meath County Council, Louth County Council and Drogheda Corporation. The only way in which that could be dealt with on a fair and equitable basis would be to make provision for representation in the legislation and the regulations. I am confident that the balance of members will come from the  business community and I believe the Minister's line on this issue is correct.
Mr. Cullen: I support the amendments. This issue was debated on Committee Stage. I particularly support the amendment on the chambers of commerce and I accept in good faith Deputy Bell's statement that it is likely many people from the business community will be on the boards but that is not the point. Over the last few years, the chambers of commerce have become more professional bodies in communities and I welcome that. They are moving much closer to their European counterparts — perhaps because of our involvement in the EU — and have a much more co-ordinated and professional approach to business. They are a key element and vibrant part of most communities and a very dynamic force in Waterford.
My colleague is not necessarily saying there must be two representatives. We are trying to achieve recognition of the chambers of commerce as a body. Recently, the Chambers of Commerce of Ireland made a welcome, enlightening and far-seeing pre-budget submission. The chambers of commerce are playing an increasingly important role and we must encourage them to continue in their current direction. They are directly involved and should have at least one seat on the board. I would not agree with any further increase in board membership because I do not want the harbour boards becoming so big that we have a committee of 30 or 40 people trying to make decisions and getting nothing done. The boards should be focused and capable of getting on with their business.
Like the trade union movements in local areas, chambers of commerce have been involved in much worth-while activity and the development of the commercial life of communities. A port, such as that in Waterford, is a central force for the development of many industries. It is not isolated but has a big impact on companies that will come into the area and enhances our colleges and  infrastructural developments. Chambers of commerce are representatives of business in its widest sense and include small as well as large companies. I put it to Deputy Bell that small companies and small businesses will not be directly represented on such a board but, as members of a chamber of commerce, will elect their representative from among the greater body. Then they will have a role and make a contribution.
It is important that the Minister recognises the legitimate case for having one representative from chambers of commerce. They have contributed in the past and have been central to decisions over the last number of years relating to the manner in which ports have expanded. Guaranteed representation should be maintained.
Mr. H. Byrne: I support Deputy Browne's amendment. I was chairman of the board in New Ross but I was fired since the Committee Stage debate, although not by the Minister. However, the Minister's suggestion that we should no longer be members may have contributed to the decision.
Mr. H. Byrne: I am certain the new chairman will do an excellent job. There is a representative from the chamber of commerce on New Ross harbour commissioners, Mark Moynihan, who has been vice-chairman for the past two years. He has done an exceptional job and is available to our chief executive at any time. There is a person like Mark Moynihan in every town and their interest and expertise should be used. Mr. Moynihan is on our board as a member of the chamber of commerce and, from my experience, the board would not function as well without him. I ask the Minister to take that into consideration.
The chambers of commerce have a tremendous overview of commercial activity in any town, particularly port towns. I suspect the Minister is afraid  that, as with other organisations, including political organisations, the job will be dished out to somebody who did not get any job to date. Chambers of commerce are a responsible group of people and are careful in their selection of a person to serve on a board. They select the proper person for a given job. They have been successful and know the business very well. For those reasons I ask the Minister to specifically allow for membership of representatives from chambers of commerce.
Deputy Bell has a tremendous knowledge of harbour boards and ports. He mentioned that worker-directors must stand before their own people. The same can be said of chambers of commerce representatives. I do not know the size of the chamber of commerce in the Deputy's town but in mine it is quite large. The appointment is not just given to a person on the basis of the colour of their hair, they have to go through the same process the following year to be reappointed. The selection process is basically the same. The Minister has already accepted amendments and suggestions from this side of the House on this Bill and it is progressing well. I ask him to reconsider this amendment.
Mr. Molloy: One of the big disappointments on Committee Stage was the Minister's refusal to accept the amendments from Fianna Fáil and the Progressive Democrats to give representation to the chambers of commerce on the new harbour companies. The Minister, in seeking to justify his decision, said that in the interests of commerciality it was decided to move away from the representational boards of the past which were comprised of representatives of the trade unions, nominees of the Minister, local authority nominees, the chamber of commerce nominees and the port users' nominees. The port users held an election to decide on their representative. The chambers of commerce and local authorities decided at their AGMs and the trade unions submitted the names of their nominees to the Minister.
 It was recommended in the Murphy report that representational nominees on the new harbour companies should be done away with. The Minister did not accept that recommendation and decided instead to allow trade union and local authority representation and to refuse the chambers of commerce any representation. Yet during the course of the discussion he said: “It is probable that I will invite recognised bodies such as the chambers of commerce to recommend persons for consideration for appointment as directors”. In seeking to appoint people who have a strong commercial background the Minister recognises that he will have to go back to the chambers of commerce to get nominees with the necessary expertise and knowledge who are willing to work long hours.
It is difficult to understand the reasoning behind the Minister's decision. I cannot think of any organisation more representative of all aspects of trade and commerce in a region than the chamber of commerce movement whose membership is open, which is supported by research and permanent staff and is operated on a strictly democratic basis. It is only proper that they should be granted the right to make a nomination from within their membership. Those of us who were members of harbour boards in the past are very conscious that some of the best contributions were made by the chambers of commerce nominees. The new boards will be weak without this input.
The chambers of commerce will probably be consulted but they will not have a statutory role on these boards. There is no justification for this decision given that the Minister has accepted the other recommendations in the Murphy report. Having cherry picked certain recommendations in the report, he proposes to make the boards part representational and has reserved unto himself the right to nominate 50 per cent or more of the representatives. We know from experience — recent events confirm this — that many appointments by  Ministers of all parties are made on the basis of political considerations. My party could make a case for exclusion from that group given that we attempted to move away from that position. Whoever happens to be in office when the new boards are being appointed will load them up with his or her appointees. There is no evidence to show that anything other than that will happen. The Labour, Fine Gael and Fianna Fáil parties did this extensively when they were in office and they will continue to do so.
I have come to the conclusion that the Minister has decided not to concede statutory representational rights to the chambers of commerce because the Bill will give the Government of the day the opportunity to appoint their political friends to the boards of these new companies. The Minister may expound high principles and aspirations about the need to appoint the best commercially qualified people but the Government's actions since it came into office will not back that up. In the case of the chambers of commerce politics does not enter into their discussions or considerations at any level. They are strictly non-political and great credit is due to them for that. The Minister does not propose to avail of the expertise of the qualified, committed and interested people in the chambers of commerce. Rather he proposes to exclude them from participation in the new boards. This is a sad day for politics. The Minister may give other reasons for his decision but I think I have put my finger on the heart of the matter.
This provision will not ensure the type of commerciality in the operation of the new boards which we would like to see. Despite the serious financial restraints under which they had to operate the boards made great progress in the past. We are moving into an era where very substantial funding will be available from the EU. This funding was not available in the past and the harbours were built up by the boards which  struggled to maintain adequate facilities with some assistance from the State.
I am disappointed that the Minister did not accept our amendments on Committee Stage. We have put them down again on Report Stage in the hope that he will concede the point. If he agrees to give further consideration to them between now and the debate in the Seanad it will offer us some hope but if he does not do so we will have no option but to put them to a vote.
Mr. Kenneally: I heartily support the points made by my colleagues in support of Deputy Browne's amendment. When one looks at the history of harbour authorities one will see that over the years there has been great interaction between the commercial interests on the boards, trade unions etc. In many cases they supported one another when vacancies arose for the post of chairman or vice chairman and they always acted in the best interests of the authority. I am afraid that the Minister's proposal will do away with this and that the expertise built up over many years will be lost to the harbour boards.
Chambers of commerce and other bodies only selected those with an interest in the operations of harbour authorities, who knew how they functioned and would work in their best interests. They never abused this privilege.
In this section the right of local authorities and workers to be represented on the boards of port companies is being copperfastened. I have a difficulty, however, with the proposal contained in subsection (1) (c) that in a company with fewer than 30 employees the Minister will appoint someone to represent their interests. This may be a member of the local branch of Democratic Left rather than an employee of the company. That is a source of concern as many of the new port companies will have fewer than 30 employees.
Chambers of commerce were supportive of this legislation when first introduced, but little did they know that they would be excluded. As Deputy  Molloy said, the Government is moving away from the thrust of the Murphy report presented in 1992. That is regrettable. Historically, chambers of commerce had the right to be represented on harbour authorities. It is a pity the Minister cannot see his way to allowing them retain this right in the future. I ask him to accede to the request made in these amendments.
Mr. Finucane: This is a rehash of the debate which took place on Committee Stage when this matter was discussed at length. I was a member of a harbour authority on which there was no chamber of commerce representative as there was no chamber of commerce in the area. Despite this it was a successful commercial entity. People are inclined, therefore, to labour the point. I am confident that the Minister will appoint people with an interest in the commercial development of ports.
Mr. Gilmore: Similar amendments to these were discussed at length on Committee Stage and finally defeated by a vote. In considering these amendments we first need to look at the composition of the existing harbour boards. Harbour authorities range in size from nine to 29 members and comprise representatives from local authorities, chamber of commerce, IBEC, councils of trade unions, the livestock trade, shipping interests and ministerial nominees. We should pay tribute to successive members of harbour boards for the work done during the years without remuneration in the management of their respective harbours.
The commercial harbours review group which looked at the structure of administration in our courts was of the opinion that these representational type boards were no longer attuned to the competitive requirements of a modern port and were not the most efficient way  of managing ports. Following publication of its report, there were numerous requests for the continuation of existing representation. Having considered the matter, the Government decided that the number of directors in each company should not be more than 12 and that three local authority directors should be appointed to each port company.
To some extent, Deputy Molloy in particular, is attempting to rewrite history. The Government has not departed from the thrust of the Murphy report which specifically recommended that there should be employee representation. This is provided for in the Bill. In addition, the Government decided to provide for local authority representation. This is consistent with the important role it attributes to local government. Is Deputy Molloy, or any of the other Members who have raised this point, saying we should not provide for local authority representation on the boards of port companies?
On the question of ships agents and chambers of commerce representation, the subject matter of these amendments, the review group was strongly of the view that persons with a vested business interest in the affairs of a port should not be granted board representation. Some ports are clearly dominated by user interests and one view is that the continuation of such representation could have an inhibiting effect on the commercial effectiveness of the new port companies.
I have received representations from many bodies, including the Chambers of Commerce of Ireland, the Irish Ships Agents Association, individual chambers of commerce and other bodies seeking representation on the boards of the new port companies. In the interests of commerciality, it was decided to move away from the representational boards of the past. Deputies will appreciate that to provide for statutory representation for one body would open up the gates for others who also seek statutory representation on the new port companies. Only today I received a  submission in which a return to the old style representational boards was sought.
It is my intention that ministerial directors will, in general, be drawn from the professional and business community. In appointing such directors I will be anxious to select persons with the appropriate business acumen. For this reason it is probable——
Mr. Gilmore: ——that I will invite recognised bodies, such as chambers of commerce and IBEC, to recommend persons for appointments as directors. Deputy Molloy does not have a monopoly of admiration for the work of chambers of commerce. I also admire the work they are doing——
Mr. Gilmore: Persons from the business and professional community will be appointed to the boards of the new port companies. In this regard, chambers of commerce and IBEC will be consulted. As Deputies well know, the position varies from area to area. The persons  nominated by all these bodies will be considered for appointment.
Deputy Kenneally used the phrase “we will lose the expertise of business people” on the boards of port companies, but nothing could be further from the truth. There is no question of excluding business and professional people from membership. Prior to making appointments there will be a consultative process. I have no doubt that when the directors of the port companies are appointed Deputy Molloy, in particular, will have cause to——
Mr. Browne: (Wexford): I am very disappointed with the attitude of the Minister. On the one hand, he is saying how great the people in the chamber of commerce are and, on the other, he is saying they are not really capable of being on the board. We all know the important input those people are making to the development of our towns and cities. Even at this late hour, the Minister should reconsider his decision and, at least, enshrine in the legislation that one member of the chamber of commerce be on the boards.
Briscoe, Ben. Coughlan, Mary.
Kitt, Michael P.
|Browne, John (Wexford).
Burke, Raphael P.
Connolly, Ger. Leonard, Jimmy.
Morley, P. J.
Nolan, M. J.
Browne, John (Carlow-Kilkenny).
De Rossa, Proinsias.
Dukes, Alan M.
Durkan, Bernard J.
Gallagher, Pat (Laoighis-Offaly).
Higgins, Michael D.
Noonan, Michael (Limerick East).
Sheehan, P. J.
Amendment declared lost.
Amendment No. 20 not moved.
Mr. Molloy: I move amendment No. 21:
In page 28, after line 51, to insert the following:
“(7) The Minister shall appoint 1 person nominated by the Chamber of Commerce in the Board's area to be a Director of a Company.”.
Amendment put and declared lost.
An Ceann Comhairle: Amendment No. 22 Amendment No. 23 is an alternative and I suggest we discuss both amendments together. One decision should suffice in respect of amendments Nos. 22 and 23.
Mr. Browne: (Wexford): I move amendment No. 22:
In page 32, line 1, after “harbour master,” to insert “who shall have the right to attend board meetings and take part in discussions,”.
Under the proposed legislation two positions must be filled in each port company, that of chief executive and harbour master. The role of the chief executive is enshrined in law but not that of the harbour master. The harbour master is one of the most important people in the harbour and is in charge of ships entering and leaving the port. He has responsibility for safety, unloading ships and environmental matters. He has a mix of statutory and commercial obligations. I am not asking that the harbour master be a member of the board but he should have a statutory right to attend meetings. On Committee Stage the Minister was reluctant to accept proposals put forward but I ask him to reconsider his decision in this matter and give the harbour master a right to attend board meetings.
Mr. H. Byrne: I join with Deputy Browne in asking that this be allowed. We discussed it on Committee Stage and made a strong case for it. The harbour master is involved in every activity at the port. If a decision is taken at a  board meeting it affects the harbour master. As almost every motion put down at a board meeting will be on his desk, why not have the harbour master attend such meetings? For instance, if a harbour master contended a motion passed at a meeting he had not attended could not be put into operation, a special meeting would have to be convened requesting his attendance. Therefore, this amendment is simply a commonsense proposal.
Mr. Bell: Having, as chairman, been unable to contribute to our Committee Stage deliberations, but having listened to our many discussions and spoken to the Minister before and after Committee Stage, I sympathise with the objectives of the movers of this amendment. In the case of larger ports, there may be heads of divisions, somebody in charge of finance, somebody else in charge of shipping and yet another in charge of other functions of the board, who would be requested to attend board meetings whenever the subject matter pertaining to their divisions arose for discussion.
I am particularly concerned about secondary ports in respect of which, in some cases, the harbour master will be the chief executive officer whereas, in the case of larger ports, the chief executive officer and harbour master will each have two distinct functions. In the case of secondary ports, clearly harbour masters will be held responsible for almost all of the activity within their harbours. That is why I draw the distinction.
In the case of my local harbour authority, the harbour master once attended a meeting, by invitation. That may very well be the exception to the rule. I do not know how other smaller, secondary ports operate. Perhaps traditionally harbour masters attend such meetings. I am informed by my colleagues that is the case in some ports.
There should be uniformity to ensure that no harbour master attends a meeting at which a subject matter falling beyond his remit is discussed. Nonetheless he should have the right to attend  any meeting considering a subject matter directly within his sphere of responsibility. We must remember that harbour masters have enormous statutory responsibilities under the Act.
The Minister has been very generous in responding to proposed amendments evidenced by the substantial number of amendments he tabled. Nonethless, at this stage, if these amendments are not acceptable, perhaps the matter could be dealt with under some other headings, enshrined in the regulations to be drawn up under the relevant section, or reconsidered when the Bill goes to the Seanad.
In the case of the two ports in my constituency, those with which I am most familiar, it is absolutely essential that the harbour master has the right to attend company meetings, as a non-voting board member. I made it clear to representatives of harbour masters that I would not support any right of harbour masters to vote as it would compromise their position and place them in very difficult circumstances if and whenever policy matters beyond their realm of control had to be decided.
Mr. Cullen: I agree with the objective of these amendments. Following the Committee Stage debate, I am surprised the Minister has not moved to rectify what is a glaring omission. It is not that we are carrying a flag for every harbour master but, because of the technical nature and complexity of shipping, with its daily involvement of harbour masters it is wise that they should have a right to attend company meetings. If it is correct that there be three politicians appointed to the board, can anybody persuade me their attendance is more important than that of a harbour master? The reality is that a harbour master works full-time within the port for which he is responsible. It would be foolish to allow for the possibility that a harbour board could take a decision without having had the proper technical information made available. The obvious question would then arise as to why the harbour master was not present since he has onerous  responsibilities and should be statutorily accountable at board level.
I know the Minister will say that a board can invite a harbour master to attend any or all of its meetings if it deems his attendance is necessary but we should not allow such a grey area to remain because, if at any time a harbour master does not attend and something goes wrong, we will question that absence in the first place. Because a harbour master is so directly involved in the running and operations of the port, albeit one specific aspect, he should be entitled to attend the new harbour company meetings. I am not hung up on his having voting rights but, given the nature of his full-time job, it would be wise to avoid confusion. Some boards might request harbour masters to attend all their board meetings and others might not request his attendance at all.
His statutory right to attend should be provided for and I appeal to the Minister to change his mind on the matter.
Mr. Molloy: I am absolutely amazed the Minister has not tabled an amendment on Report Stage to give effect to the arguments advanced by Members on Committee Stage, that henceforth all harbour masters should have a statutory right to attend harbour company meetings, without having the right to vote. During our Committee Stage discussion three of the parties represented here spoke in favour of this amendment; Fianna Fáil have tabled an amendment, as have the Progressive Democrats. Deputy Finucane of the Fine Gael Party, somebody with great knowledge and experience of having worked on harbour boards supported the amendment.
Today we have the unique circumstances in which the chairman of that committee — who was not in a position to offer comment while chairing our deliberations on Committee Stage — has made it clear that from his experience, as a member of the Labour Party, he too supports the granting of a statutory right of a harbour master to attend  harbour company meetings in the future.
All parties who have addressed the issue are in agreement with the proposal that harbour masters should have a statutory right to attend harbour company meetings without having a right to vote, apparently the only party holding out against this proposal being Democratic Left, in the presence of the Minister of State who represents that party. I do not know what experience he has had or whether he was ever a member of a harbour board nor do I know what has been the experience of his senior Minister with whom I presume he will have discussed its detailed provisions and who will have given the Bill his imprimatur. The record of the Committee Stage debate clearly demonstrates that all Members who have had the benefit of having served on harbour boards strongly believe this to be an absolutely essential provision. If this is not conceded, it will mean a serious imposition on the effectiveness of harbour boards to carry out their duties in future. The reasons for this have been placed on the record. I was optimistic that the Minister would do something in view of his following statement on Committee Stage on 14 September 1995:
I came into this session believing that it was not necessary to include that in the legislation. However, a strong case has been made.... I am prepared to give further consideration to what has been said. I ask the Members to withdraw the amendments to enable me to reflect further on the matter between now and Report Stage.
Deputy Smith responded to the Minister's request as follows:
I am happy to do that but I am not too sure that I can be too optimistic on the basis of the rather neat twist the Minister gave in his earlier reply saying: “One would think there was a provision to exclude harbour masters”.
 After Deputy Smith had spoken, I stated I would not press the amendment on that occasion. I said I thought it was the first indication on Committee Stage that the Minister was listening to the experienced members of the committee.
The Minister has not come forward with any relevant amendment. I stated, on Committee Stage, that I took a more optimistic view of the Minister's intention than Deputy Smith. However, our views are being ignored and we cannot do much except to call a vote on the issue. It is sad because there is a misunderstanding of how the harbour board operation works is displayed. If the harbour master does not have the right to attend meetings, major difficulties will be experienced in carrying out the business of the harbour companies in a smooth fashion. Many matters will need to be referred to the harbour master for an opinion who, when present at meetings, provided explanations on a wide variety of matters to the members enabling them to make decisions.
We are trying to help the new harbour companies to be commercially oriented, operate efficiently and arrive at conclusions quickly, based on knowledge and information. One of the primary individuals in the structure and operation of a harbour company is the harbour master, who has to be aware of all operational aspects of the work of a harbour master, who has to be aware of executive will be inhibited by the absence of the harbour master at meetings. The work of the harbour master will also be inhibited because he will have to spend much of this time writing answers to questions raised at board meetings. These questions could be dealt with at such meetings if the harbour master was permitted to attend.
There is no intent in either of the two amendments to give the harbour master the right to become a director or full voting member. That is clearly not being proposed. I offered the example of Deputy Rabbitte who attends Government meetings. He is not a member of the Cabinet but attends Cabinet meetings. I thought that by giving that  example the Minister might see, from experience, that the proposal was practical. However, what is good for Deputy Rabbitte is not good for the harbour masters. They will not be permitted to attend the meetings of harbour boards where they have a vital role to play. The board can decide to invite them to attend and this has been done in the past.
We are not often afforded the opportunity to deal with harbour legislation and it is incumbent on us to draw on personal experience in putting forward proposals for the modern legislation being introduced. This is a serious omission as all contributions on Committee Stage and during this debate, apart from those made by the members of the Minister's party, propose that it is important to provide harbour masters with a statutory right to attend meetings. This has already been established in practice and has become valuable to the workings of the harbours boards. The time has arrived to give statutory effect to it under this legislation.
I have come to the conclusion that, because he has not tabled amendments, the Minister considered this issue and rejected it. That is a very sad decision and the wrong one. We have not heard the Minister's reasons and we will not have an opportunity to respond to what he has to say on the matter. It is a retrograde step.
Mr. Finucane: I will be brief as I already made my contribution on Committee Stage. The reason I expressed my views at that time was because I had been a member of a harbour board for almost ten years. A natural feature of those meetings was the attendance of the harbour master. I found this a very effective system. The Harbours Act, 1946, does not contain a formal mechanism for this but it was accepted, by natural policy, that the harbour master would attend our meetings. It was in this context that, on Committee Stage, I stated that I could see the merits of the proposal.
Mr. Kenneally: I am amazed that the Minister is not prepared to accept these amendments. In one of my earlier contributions I mentioned expertise and I could use the same word in this instance. The expertise of the harbour masters is being lost by preventing their attendance at harbour authority meetings which is a retrograde step.
In the past I served on Waterford Corporation. The Roads Committee of that body always invited attendance by a Garda inspector in charge of traffic. His attendance was vital when the committee discussed road traffic regulations because, with his knowledge and hands-on experience, we could make sensible decisions on the spot. Without his attendance there was no point in even discussing such matters. He was not a voting member of the committee but he attended and discussed those matters with us.
That is not being done in this instance. If a matter is raised at a meeting of the harbours boards which requires the assistance of the harbour master, he will not be present to offer advice. It must be put on the back burner and a report sought from the harbour master. The decision making process is delayed by doing this. During my time in this House proposals have been put forward on many subjects. Some of them were unworkable but others had great merit. Common sense is not used often enough in this House. This is a common-sense proposal and I urge the Minister to accept it.
Mr. Gilmore: In reply to the minor part of Deputy Molloy's contribution — which was not framed in the form of tedious political rhetoric — and the statement that on Committee Stage I undertook to give further consideration to the points raised. I did indeed give such a commitment and have given considerable consideration to this issue. I have come to the conclusion that it is not necessary to amend the Bill, as it stands, to permit harbour masters to attend meetings of the port companies.
 The present position, under the Harbours Act, 1946, is that harbour masters do not have a statutory right to attend harbour authority meetings. However, as Deputy Finucane stated, they do attend such meetings in practice. There is no provision in the Bill which will prevent harbour masters attending board meetings of their port companies.
One would think from some of the contributions to the debate that there is a provision in the Bill stating that harbour masters cannot attend meetings of the boards of the port companies. There is no such provision.
Mr. Kenneally: We never said that.
Mr. Gilmore: That is the message.
Mr. Molloy: It is the difference between “may” and “shall”.
Mr. Gilmore: I will deal with “may” and “shall” in a moment. Deputy Kenneally give an example of a road traffic committee of a local authority inviting the garda superintendent concerned to attend such a meeting. There is no statutory provision requiring that should be the case but it is the case in practice. It is perfectly reasonable and sensible that the garda superintendent should attend meetings which are discussing road traffic matters. Similarly it is perfectly sensible and reasonable that the harbour master should attend the board meetings of a port company when matters which relate to his functions are being considered but it does not follow from that——
Mr. Kenneally: Why is the Minister of State afraid to include it in legislation?
Mr. Gilmore: ——that there has to be an automatic statutory right to do so. I recognise the important role of the harbour master in safety matters in his jurisdiction and the technical knowledge and expertise he has in all aspects of  port operations. However, I cannot accede to the request that section 37 be amended to provide that harbour masters shall have the right to attend board meetings and take part in discussions. It would be a matter for the new board of directors to decide whether the harbour master should be invited to attend all board meetings, some board meetings, full board meetings or certain parts of board meetings for the purpose of giving their advice. I would expect the new boards to act responsibly in this regard and take due account of any advice, technical or otherwise, given by the harbour masters as part of their normal deliberations in board meeting agenda items. I have no reason to believe that the position in practice of harbour masters attending meetings of the port companies would be different from what pertains.
Deputy Hugh Byrne said there should be “pure common sense” but if it is a matter of pure common sense surely we can allow the boards of the port companies to use their common sense to ensure that harbour masters attend board meetings of the port companies as appropriate. After all if we are charging them with the very considerable responsibility of the management and custody of the ports, surely we could at least trust them to decide on the appropriate officers to attend meetings of the port companies.
Mr. Cullen: I agree.
Mr. Gilmore: I expect that the port companies will as a matter of course have their harbour masters present at board meetings. The amendment states that the harbour masters shall have the right to attend board meetings and take part in discussions. In that event it would be a matter for the harbour master to decide whether to attend meetings of the port company. If the scenario that has been painted were to arise where an issue is decided at a meeting of the port company at which the harbour master had not been present the onus would be on the harbour master, who might have  absented himself from attending that meeting. It may be an unintended consequence of the amendment before us that a responsibility is being placed on harbour masters which is probably not the intention of the proposers but that would be the effect if the amendment is passed. On the other hand there could be a formula where there would be a requirement that boards of port companies would have to have the harbour master present at every meeting. There may well be situations where board meetings might be convened to address issues where it would not be appropriate or necessary for the harbour master to be present. We have to allow for that degree of flexibility in the operation of the port company.
For example, if a port company decides to exclude harbour masters from their meetings — Deputy Bell referred to this and clearly that should not happen — there is a mechanism to address that issue. That section permits the Minister to give directions of a policy nature to port companies on the attendance of harbour masters. It is clear that harbour masters should be present at board meetings where matters which relate to the harbour master's duties are being discussed.
Mr. Molloy: It should be in the legislation.
Mr. Gilmore: There is no necessity for it, it is not in existing legislation.
Mr. Molloy: It should be in the new legislation.
Mr. Gilmore: I have not been convinced of any reason to include it in the new legislation. It was not in the old  legislation yet harbour masters attended in practice and there is no reason to believe that that practice will not continue. It is not necessary to have it in the legislation but clearly it is a matter of policy. I would expect the new port companies to comply with this and harbour masters in the normal course of events will be attending board meetings of the company.
Mr. Browne: (Wexford): It is amazing that other than some amendments the Minister accepted arising out of the debate on Committee Stage that he has not seen fit to accept any amendment put forward from this side of the House. We have the support of all sides for this amendment but the Minister seems to have a monopoly of wisdom on whether a harbour master should be on the new authority. The experienced voices say differently. The Minister should reconsider his position and if he cannot do so today he should tell us that he will look at it again when it goes to the Seanad. There is a serious problem. The harbour masters are responsible for practically all the operations in a port and we are saying that they are not entitled on a statutory basis to attend meetings. We are not asking for voting rights of for full membership of the board but the statutory right to attend meetings. The Minister spoke for five minutes but he did not sound convincing. He said that if the harbour master was excluded he could then appeal to the Minister and the Minister could direct the new port authority. I do not think that is good enough and the Minister should seize the opportunity and support the amendment from this side of the House.
The Dáil divided: Tá, 49; Níl, 62.
Aylward, Liam. Callely, Ivor.
Kitt, Michael P.
Browne, John (Wexford).
Burke, Raphael P.
Byrne, Hugh. Lawlor, Liam.
Morley, P. J.
Nolan, M. J.
Browne, John (Carlow-Kilkenny).
De Rossa, Proinsias.
Dukes, Alan M.
Durkan, Bernard J.
Gallagher, Pat (Laoighis-Offaly).
Higgins, Michael D.
Noonan, Michael (Limerick East).
Sheehan, P. J.
Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.
Amendment declared lost.
Amendment No. 23 not moved.
An Ceann Comhairle: I observe that amendment No. 25 is consequential on amendment No. 24. Therefore, I suggest  we discuss the two amendments together.
Mr. Gilmore: I move amendment No. 24:
In page 33, line 40, to delete “A company” and substitute “Subject to subsection (8), a company”.
Section 40 requires new port companies to prepare and submit to the Minister for approval superannuation schemes for members of their staff. Section 41 (1) provides that some approved schemes already in existence may continue in operation after vesting day of the new port companies. Such approved schemes are mainly in operation at the ports of Cork, Dublin, Limerick and Waterford. This, in effect, means that most of the other port companies will be statutorily required to submit superannuation schemes for approval and to establish superannuation funds from which benefits will be payable. However, a number of ports, for example, Galway, Foynes, New Ross and Drogheda operate insurance-type pension schemes under which annual premia are paid to insurance companies to ensure that employees, on retirement, receive the normal retirement benefits, lump sums and pensions. To require such port authorities to abandon their insurance-type schemes and introduce superannuation schemes under section 40 would be unreasonable.
The amendment before the House empowers the Minister for the Marine by order to exempt companies with 30 or fewer employees from the requirements of section 41. In the event that companies are so exempted it would of course be necessary to ensure that insurance-type schemes that provide for benefits in line with public sector norms are in place and continue in place. This is also provided for in the new subsection. As amendment No. 24 is consequential, I recommend the two amendments to the House.
Mr. Cullen: On Committee Stage the Minister read out a lengthy list in  respect of underfunding in the area of pensions.
Mr. Gilmore: That will be dealt with under the next amendment.
Mr. Bell: I support this amendment and I am pleased to note the Minister gave credit to the ports that make adequate provision for superannuation. While they are few in number, it should be noted that we recognise the effort made by them. The system of funding superannuation from current revenue will pose a problem, but the Minister will have to deal with that matter at a later stage. Drogheda Port has a unique record in this regard. It operates a superannuation scheme that is not only adequately funded but is operated by the dockers trade union in the port. Port users make a contribution on behalf of each worker they employ and the scheme is operated, funded, insured and controlled by a committee of trustees consisting mainly of dockers and port workers. I am pleased that matter has been noted.
Mr. Molloy: I welcome the amendment as it recognises the prudent arrangements operated by authorities which employ fewer than 30 staff, such as the one in Galway, to make adequate provision for pensions. The serious financial implications of the proposals in the original Bill are being addressed in this amendment.
Mr. Gilmore: I thank Members for their comments. The underfunding of pensions funds, to which Deputy Cullen referred, will be dealt with under the next amendment. The purpose of these amendments is to avoid a position whereby port companies that make provision through insurance-type schemes for superannuation will have to establish separate pension funds. The only proviso that will exist in respect of such schemes is that they must provide the type of benefits that are the norm in the public sector.
Amendment agreed to.
Mr. Gilmore: I move amendment No. 25:
In page 34, between lines 23 and 24, to insert the following:
“(8) (a) The Minister may by order exempt a company, the employees of which are less than 30 in number, from the requirements of subsection (1).
(b) Such an order shall include a provision requiring the company to which the exemption concerned relates to enter into such arrangements with the holder of an authorisation as will secure the payment by that holder, on such terms and conditions as the company determines with the consent of the Minister and the Minister for Finance, of superannuation benefits to or in respect of members of the company's staff.
(c) In this subsection `authorisation' has the same meaning as it has in the European Communities (Life Assurance) Framework Regulations, 1994 (S.I. No. 360 of 1994).”.
Amendment agreed to.
An Leas-Cheann Comhairle: Recommittal is necessary in respect of amendments Nos. 26, 27 and 62 since they create a charge on the Revenue. Amendments Nos. 26 and 27 form a composite proposal and No. 62 is related. It is proposed therefore to take Nos. 26, 27 and 62 together.
Bill recommitted in respect of amendments Nos. 26 and 27.
Mr. Gilmore: I move amendment No. 26:
In page 38, between lines 37 and 38, to insert the following:
“(9) Where the Minister is satisfied, after consultation with the company and trustees concerned, that—
 (a) a fund established by a company under paragraph (a) or (c) of subsection (3) or continued in existence in relation to it by virtue of subsection (1) (c) (ii) does not comprise sufficient moneys as will enable the payment from that fund of superannuation benefits under the scheme or schemes concerned as and when those benefits fall due for payment, and
(b) the said company does not have resources from which there could be paid the said benefits as and when they fall due for payment,
then the Minister may, with the consent of the Minister for Finance, pay to the trustees concerned such amount in respect of liabilities of the said scheme or schemes that have arisen prior to the relevant vesting day as he or she may determine.”.
Amendment No. 26 provides that the Minister for the Marine may, with the consent of the Minister for Finance, pay to the trustees of certain pension schemes moneys in respect of certain liabilities that have arisen prior to the relevant vesting day. This provision applies only to port companies to be established under the Harbours Bill.
Deputies will recall that at Select Committee I touched briefly on the pension liabilities of harbour authorities. Historically harbour authorities operated a “pay as you go” system for pensions rather than having a specific pensions fund. This system is no longer in accord with acceptable standards. Under the Pensions Act, 1990, and under the provisions of this Bill, harbours must build up pension funds. The building up of pension funds is a costly process and while some harbour authorities are in the process of building up a fund others are only beginning to do so now and it will take some time for them to put fully funded schemes in place. In particular both Dublin Port and Waterford Harbour have serious shortfalls in their pension funds.
 The Government is taking action to secure pensions and to ensure that the harbour authorities build up the necessary funds. Consultants have been employed to do a comprehensive study of the financial status of harbour authorities, including the long-term funding requirements of the ports and how these are to be achieved, taking due account of measures to meet the appropriate funding standards for pension schemes under the Pensions Act. I expect that this study will be available very shortly.
If it is found that some harbour authorities cannot build up the required funds within the timescale set out in the Pensions Act it will be necessary to remove from the scope of Part IV of the Pensions Act those pension schemes or parts thereof which do not meet the required funding standard, and the purpose of amendment No. 26 is to allow for this. The effect of removing pension schemes from the scope of the Pensions Act is that such schemes will avail of Exchequer cover; in the unlikely event that port companies cannot meet their pension obligations the State will undertake to do so.
This provision will also allow for the payment of moneys by the Exchequer into a pension fund to build up that fund. The provision is enabling only and will only be invoked in the direst of circumstances where the Minister for the Marine and the Minister for Finance are satisfied that an Exchequer contribution towards a pension fund at a port company is absolutely necessary. Any such contribution will only be made on foot of a plan agreed by the Minister for the Marine and the Minister for Finance with the company and the trustees of the pension scheme which provides for building up the pension fund over a specified period.
Policy will be to minimise the Exchequer exposure in this regard through ensuring that every effort is made by the harbour authorities/port companies to provide for the funding of pre-vesting day pension liabilities themselves. I want to state clearly and strongly that: (i) the purpose of the  amendment is only to provide a back-stop guarantee against the eventuality that certain harbours may be unable, through trading performance, or closure, from meeting pensions liabilities; I also want to make it quite clear that Exchequer intervention will only occur in the direst of circumstances; (ii) harbours will be expected to make every effort to fund all pensions liabilities through improved trading, asset sales etc.; the strategic plans of the boards will be required to provide for a mechanism by which funds are brought up to the funding standard requirements of the Pensions Act; the Exchequer's back-stop guarantee will only operate until such time as the boards can reasonably attain that status; (iii) there will be a stringent case by case approach for example, notwithstanding the text of the amendment there will be no question that certain categories of liabilities, such as pre-vesting day, will be automatically Exchequer funded for all bodies; (iv) the intention is that when the study, which has been commissioned into the current and prospective viability of the harbour authorities is completed, I will consider further in conjunction with the Minister for Finance and the harbour authorities how best to put the necessary measures in place to enable the pension schemes to meet the funding standards of the Pensions Act. The DKM study is now almost completed and the consultant's report and recommendations should be available within the next two weeks or so.
Amendment No. 27 provides that moneys required by the Minister for the Marine or the Minister for Finance under this section shall be advanced out of the central fund or the growing produce thereof. In this regard moneys will be required by the Minister for Finance to enable him to meet his obligations under subsection (5) which relate to transfer of staff from the Department of the Marine to the new Dún Laoghaire harbour company and moneys may be required by the Minister for the Marine in accordance with the new subsection  (9) which arises from amendment No. 26.
The purpose of amendment No. 62 is to provide that in respect of harbour authorities which remain under the Harbours Act, 1946, moneys may be made available, by way of grants or loans, to cover pension liabilities, in respect of pension schemes made in accordance with section 151 of the 1946 Act, where the harbour authorities do not have the resources to cover such payments. The Harbours Act, 1946, does not make provision for the payment of State grant assistance to harbour authorities towards pension costs. This provision will provide emergency cover for pensioners in the event that the harbour authority cannot pay pensions out of its own resources. The harbour authorities covered by this provision are the small harbours where one or two persons only are employed. The intention is that the section will remain in force for a period of not more than five years after the commencement date of the section and that moneys, if any, made available will be in respect of a period of 12 months only, after which time the matter will be reviewed.
The ultimate aim of these amendments is to ensure that existing harbour pensioners and the employees of harbour companies and harbour commissioners will have their pension entitlements honoured in full and, if necessary, the Exchequer will provide the necessary finance to achieve this. However I stress again that the primary responsibility for ensuring that pension funds are adequate for this purpose will continue to rest with the individual harbour companies and harbour commissioners.
Mr. Cullen: I thank the Minister for his detailed contribution on this very complicated issue. The question of pension status has been very high on the agenda of many employees of the new companies. As I understand it, all employees who have provided long service can be assured that irrespective of  what happens in the development of these companies their pension position is ultimately guaranteed by the State. I concur with the Minister that responsibility to build up the pension fund and generate good and proper practice should rest with the new companies. It is right that employees should make provision for their own future.
If we look at the figures provided by the Minister on Committee Stage, there is a substantial shortfall. For example, there is no provision for Dublin Port where the requirement is about £50 million. In Waterford, my own area, there is an immediate requirement of £4 million. It is likely that it will not be possible for companies to build up pension funds in the timeframe outlined; it will take a substantial time to do so. I think the Minister will agree that we are shooting in the dark in this regard. The Minister has not yet received the DKM report. The implications of its recommendations on how this matter should be dealt with will be of interest. I concur with the Minister's views on the genuine burden borne by many families. There was deep concern in that regard in the portal area of Waterford.
In my harbour authority area harbour pilots were to some degree self-employed although effectively they were employed by the harbour authority. The way their employment is structured they could be seen as being self-employed. The reality is that their job is part and parcel of the work of the harbour authority. In terms of figures the Minister might supply on pension funds and the requirements of a harbour authority area, the interests of pilots are as important as that of other employees in the harbour authority area. Will the Minister clarify if the overall figures he gave for harbour authority areas included pilots as this issue is of deep concern to them?
I agree with the general direction of the amendments and some of the Minister's statements that if we want companies to operate commercially the same commercial criteria must apply to them from management down to  employees, and they must provide for their future. Companies and their employees have a responsibility to ensure that henceforth proper schemes are put in place so that staff can be assured of their entitlements when they reach retirement age. As the Minister is aware the State can no longer fund so many different areas of pension requirements out of current expenditure. We will be faced with a bill of approximately £850 million per annum and it will increase in the next few years. The message emanating from this aspect of the Bill will have to be taken up on a broader base within the State sector. I am happy that the bottom line is that pensions and people's entitlements will be protected.
Will the Minister indicate if pilots have been included in the figures? Will he lay the DKM report before the House and place it in the Dáil Library so that we may have access to it? Members from constituencies in which there are ports are interested in this live issue. It would be appreciated if the Minister made that report available. It should not be kept within the confines of his office or the Department as we have the right to know its recommendations which may seriously affect people's lives. That would encourage a proper and healthy debate on what the final position may be.
Mr. Molloy: All members welcome the provision which seeks to ensure proper statutory provision for superannuation schemes that must operate under the new structures proposed. The Bill highlights the differences between the existing arrangements harbour authorities have made in relation to pension payments.
I understand the Dublin Port authorities pay out £3 million annually from their current revenue to meet their pension liabilities. This is approximately one-third of their receipts from harbour charges. The Minister carefully worded his contribution regarding the conditions that will apply and he indicated  on Committee Stage that harbour authorities should not view the provisions of the Bill as a bonanza to make up for their lack of investment in superannuation funds. However, the figures are enormous. The sum of £50 million that would be required in a pension fund to make adequate provision for the future pension commitments of the Dublin Port is enormous. The Minister referred to disposals to build up that fund quickly. In practical terms how realistic is it to expect that a port like Dublin will succeed in building up a £50 million fund during the short period to which the Minister referred?
Figures indicate that in Limerick port there is a need to increase the fund from £1.3 million to £2 million and, as we have been told, Waterford port which did not make provision for a fund will require £3.9 million. Waterford, like other ports along the east coast, is developing and has ongoing investment in increasing and improving its infrastructure and substantial grants are being made available from the European Union to assist in that type of development. The Minister has not explained how he expects such large sums to be built up in a short period. Is he telling the House that the Exchequer will have to provide those funds? What mechanism does the Minister have to ensure the achievement of the objective he outlined, whereby every effort, encouragement and pressure will be kept on companies to ensure that they build up those funds as quickly as possible. What does all that mean in practical commercial terms? The Minister has not explained how that objective can be achieved in the timescale. We can only conclude that the Exchequer will have to provide those funds to ensure that pension entitlements of the employees concerned are properly provided for. Of all the important issues we have discussed, as this one involves such major sums of money, it deserves further explanation from the Minister. I hope he can give one before the amendment is put.
Great credit is due to those who built  up funds and made adequate arrangements. It is irregular to pay pensions out of current revenue and that position cannot be tolerated. There must be change irrespective of who or what party is in Government. The Government has a duty to ensure that adequate statutory provision is made, and we would support such a measure in the House. I am puzzled as to how the objectives of building up such huge funds in such a short time will be achieved without having to resort to the Exchequer.
Mr. Bell: I also welcome the Minister's amendment dealing with superannuation. We cannot reach conclusions as to what will happen until we see the DKM report. I agree with Deputy Cullen that this report should be made available to Members, many of whom have direct links with ports and port workers. It should at least be available in the Dáil Library. There is no doubt that all trade unions were concerned about this subject and viewed it as one of the most serious matters to be dealt with under the legislation.
In these amendments the Minister has found a fair balance. However, it must be remembered that somebody has to fund this Bill which arose out of irresponsibility on the part of some ports. While some ports paid their way and covered their workers who themselves made a contribution, others ignored their responsibilities. The problem was created by port authorities. While I welcome the fact that workers in the port will be guaranteed their pensions, it was no fault of the trade unions that this mess arose. Huge sums of money are involved. In the case of Dublin port I am not sure that £50 million will cover the bill for what needs to be done.
The Minister struck a balance which will allow for the cover of workers and at the same time put a certain amount of responsibility on the boards of these new companies. If they are to operate with the freedom we have all been talking about, they have a responsibility to  put their house in order in the shortest possible time, taking into account the financial constraints that may be on them. Other workers in the PAYE sector, including those in the docks, will have to pay the bill. I look forward to seeing the proposals being put forward in the DKM report.
Mr. Gilmore: I thank Members for their contributions on this subject. As Deputy Cullen said there has been some worry on the part of pensioners of harbour commissioners and employees of harbour boards that their pension entitlements would not be met. The first thing people can be absolutely clear about is that those worries can be put firmly to rest, irrespective of the history of the pensions problem in a number of ports. The first priority is to protect the pension entitlements and rights of those who are on pension and those in employment who may be worried about their pension rights. These amendments ensure that whatever happens, whether companies trade well or badly or how well they manage to set up their pension funds or where a harbour company might conceivably go out of business, the rights of the pensioners and the pension rights of the employees will be protected. They will be protected, if necessary, by Exchequer funding — either by the Exchequer building up the fund or by the pensions concerned being taken out of the remit of the pensions Act and being provided through the Exchequer. No matter what happens, the pensions of pensioners and employees are protected by the amendments I am putting forward.
It is important that nobody in the port companies or anywhere else gets the impression that the pensions problem is now resolved, that the Exchequer will write the cheque, that this is some kind of blank cheque for the pension obligations of the port companies, that they do not have to worry about the problem and that the Minister for the Marine and the Minister for Finance will look after the problem. I want to dispel that notion absolutely. The first obligation in  relation to pensions will be one for the port companies. We know a certain amount about the extent of the problem. I say that subject to what additional information may become available to us through the DKM report. The port of Cork has a pension fund amounting to £13.6 million which needs to be built up to about £18.9 million; Dublin Port does not have a pension fund but a fund of approximately £50 million is needed, £32 million is to fulfil past liability and £18 million for future liability. Limerick Port has a fund of £1.3 million which needs to be built up to about £2 million; Waterford Port does not have a fund and one of about £3.9 million needs to be created. We are talking about substantial funds which will have to be built up.
Mr. Molloy: About £60 million?
Mr. Gilmore: Yes. Depending on what the DKM study reveals it may be marginally plus or minus in individual ports but it is a great problem. The purpose of the DKM study is to identify what resources may be available to the companies to address the problem, the likely trading position and the capacity of those ports to establish those funds. Following receipt of the DKM study, the intention is to have discussions with the boards of the port companies about how that liability can be met. We cannot anticipate the outcome of those discussions until we have available to us the DKM study and until the process gets under way. I do not underestimate the difficulty of building up those funds. I want to emphasise that the port companies will have to address the problem. It may be that a longer period than that mentioned earlier may have to be given to some of the companies.
Mr. Molloy: They may not see a need now because of the State guarantees.
Mr. Gilmore: That is the point. This is not providing a blank cheque. The purpose of these amendments is to reassure the pensioners and the  employees of those companies that come hell or high water their pensions will be paid. I want to make it clear that this will not be in the form of a blank cheque to the port companies or in the form of some kind of financial guarantee to the companies.
Mr. Molloy: It can be read that way.
Mr. Gilmore: That is the reason I am emphasising it. The primary responsibility will be on the port companies to address the problem of how the pension funds are to be established. They will have to look to their own resources, future trading and commercial prospects in order to meet those liabilities.
Mr. Molloy: What happens if they do not?
Mr. Gilmore: The liability has already been built up in those ports. Many different reasons can be given as to how it happened. Various pensions experts, actuaries and so on, will view the problem differently but the companies will have to address the problem and seek a solution from their resources and from their trading position. That is being made clear to the companies concerned.
An Ceann Comhairle: The time has come to proceed with other business. May we dispose of the amendment before us or move to report progress?
Mr. Cullen: May we come back to the amendment?
An Ceann Comhairle: That is acceptable.
Mr. Molloy: On a point of order, we are on Committee Stage now, not Report Stage, so we can come back to the amendment.
An Ceann Comhairle: That is precisely why I am putting the question in that form.
 Progress reported; Committee to sit again.
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