Tuesday, 16 June 1998
Dáil Éireann Debate
This is important legislation which outlines the thinking of successive Governments. The Bill makes provision for the future of Bord na Móna. It will have important consequences for the board in the next 25 to 30 years.
We all appreciate the important work undertaken by the board over the past 50 years, especially in the 1940s, 1950s and 1960s. At that time people had great vision, courage and persistence to identify and commercialise one of our great natural resources. Vast tracts of bogland across the midlands were developed, which made a huge contribution to the economic development of the State. This led to jobs in many regions where there had been very little employment.
The Minister should accept this amendment and amendments Nos. 5 and 6 which seek to extend the remit of Bord na Móna. The board produces peat which is delivered to electricity generating stations for use in the production of electricity. Heretofore, it was circumscribed that electricity had to be provided by the ESB, but with the opening up of the electricity generating market IVO is producing electricity in the new station in the Edenderry area. The ESB is confident that it will be able to compete successfully with IVO.
This legislation should provide that Bord na Móna should be given the opportunity to enter the electricity generating market if it wishes to do so. It has a natural resource and the necessary expertise to enter a joint venture to do that. It is likely that in future years Bord na Móna may wish to enter a joint venture or set up a joint partnership with the ESB, an international or multinational company. That would be compatible with its history. In the past people in Bord na Móna displayed great vision and courage and the inclusion of such a provision in the Bill would benefit the board.
The Minister represents a neighbouring constituency. Bord na Móna's life may extend to 25 or 30 years, but if it was granted additional powers, as sought in this amendment, its future would be guaranteed beyond that time. I am not referring only to the production of electricity but that it should be allowed to become involved in a considerable number of other enterprises. It is involved in engineering and other commercial enterprises and in the past it was involved in enterprises related to trees and vegetables. It should be given power by statute to expand into many other commercial ventures. Such power would safeguard its future not only for the next 25 years but into the future. I hope the Minister can accept my amendment.
Mr. Stagg: The group of amendments tabled by the Fine Gael Party essentially seek to expand the remit of Bord na Móna. I have no difficulty with that general principle, but I would be concerned about specifying areas into which Bord na Móna could expand. There is a danger in that because it might seem to indicate that areas outside those specified might be excluded. The generality of the Acts that empower Bord na Móna to engage in its business are better than specifying a short list of specific areas. I would be concerned that such a list would make Bord na Móna stick to its knitting. I know where that phrase originated. It was used by the Minister's predecessor, but he did not come up with it. That might be the effect of this amendment as proposed. Perhaps we could reconsider the powers the two Acts give Bord na Móna rather than including a short list of additional powers.
Mrs. O'Rourke: I understand where Deputy Enright is coming from. We represent neighbouring constituencies and Deputy Stagg represents one beside Deputy Enright's. I discussed this matter with Deputy Currie on Committee Stage. Section 5 of the 1990 Act states the board may, inside or outside the State, engage in all such commercial activities, whether in relation to the production or marketing of turf or otherwise, as in the opinion of the board arise out of and can advantageously be conducted in conjunction with any function of the board. We have considered this matter in detail and section 5 of the 1990 Act allows the board to engage in any commercial activity without the need to list what it might do. It would be restrictive to list the activities in which it might engage. In recent years it has branched out into peat based environmental applications, electricity generation and into the coal business through its acquisitions of CDL and Suttons. The 1990 Act was very far-reaching and developmental in its approach. I hope the Deputy will accept what I am saying because it is better that board should have a wide-ranging rather than a restrictive function. The 1990 Act fulfils what the Deputy proposes in his amendment.
Mr. Enright: I discussed this matter with Deputy Currie who had to leave the House because of an engagement. He conveyed the Minister's views to me which I carefully considered. I appreciate what the Minister said about section 5 of the 1990 Act which gives the board the opportunity to expand. However, my amendment seeks an expanded mandate to allow the board to develop in the new market that has come about with the liberalisation of the electricity market. As the Minister stated, Bord na Móna has been involved in many activities, not only in those related to turf production. My amendment seeks to provide for that in the Bill and I ask the Minister to accept it, but I do not know if she will. We need to ensure the future of Bord na Móna is safeguarded and that is why I  want to give it the opportunity to expand into those areas.
Mrs. O'Rourke: I appreciate the good motives behind the Deputy's amendment, but the 1990 Act allows the board to engage in any activity in which it wishes to engage inside or outside the State as long as it considers such activity would be in its interests and developmental. The functions referred to by the Deputy include electricity production, the board's land bank and its engineering resources, but under the 1990 Act the board has expanded into areas beyond that because it had the scope to do so under section 5 of that Act. I understand the Deputy's point. The 1990 Act deals with it.
An Ceann Comhairle: Amendment No. 3 is consequential on amendment No. 2, amendments Nos. 7 and 19 are related, amendment No. 8 is an alternative to amendment No. 7, amendment No. 20 is an alternative to amendment No. 19 and they may be discussed together. Is that agreed? Agreed.
This amendment arose from the debate on Committee Stage. We considered the arguments put and the legal advice available to me is that section 9(5) and section 50 should be retained but amended to reflect the Deputy's concerns. I cannot accept amendments Nos. 5, 8 and 20 which would result in the deletion of section 9(5) and section 50. I propose two amendments which retain the basic thrust of the provisions as published but remove any element which might be deemed unconstitutional.
We discussed the arguments made by Deputy Stagg and took legal advice. The amendments will allow, where necessary, for the automatic adaptation of other enactments to ensure their application to the new company and its subsidiaries where such enactments apply currently to functions of the board and where these functions are transferred to the company or its subsidiaries.
On legal advice I propose another amendment to delete section 3(1) and as a result of this deletion a drafting amendment is required which is proposed in amendment No. 3. We have sought to address the Deputy's concerns about constitutionality.
Mr. Stagg: I thank the Minister for her positive response to the Committee Stage debate on this matter. We have established a legal precedent whereby it is no longer possible for the Minister to change other laws by order, which would have been the effect of the original section. This should be included in the parliamentary draftsman's precedent book so that such a provision from old legislation will no longer be included in new Bills.  We have made an earth-shattering achievement which will have effect in all future legislation.
The purpose of this amendment is to ensure that the new company has a coherent name in Irish, not a mishmash of Irish and English. The new Aer Rianta will be called Aer Rianta cpt which makes sense. Similarly, the company should be Bord na Móna cpt, not plc. On Committee Stage the Minister undertook to look at the matter. It is not a major point but the title of the company should be in one language.
Mrs. O'Rourke: This matter was discussed after the Committee Stage. It appears that among workers and management there is a belief that the company should be called Bord na Móna plc. It makes sense particularly with regard to its activities abroad. We have decided to leave the plc title.
Mr. Enright: Although I would like to agree with Deputy Stagg, I see a great future for Bord na Móna in international activities and the plc title is recognised internationally. It would be better to use it for business purposes.
Mr. Stagg: The argument of the Minister and Deputy Enright is balderdash. If it makes sense to use “plc” because it will be understood internationally, then “Bord na Móna” should be translated into English so it can be understood. We should be proud of the Irish language. This mishmash of Irish and English reminds me of the buntús cainte and serves no purpose. The name should be in English or Irish. When the State companies were limited the title “Teoranta” or “teo” for short was used. If the Minister and the officials are so exercised about it they may have it in Latin if they wish.
“(5) Any enactment that, immediately before the vesting day, applied to the Board and whose application to the Company is necessary for the purpose of giving full effect to the conferral of functions by or under this Act on the Company and is not otherwise effected by this Act shall apply on and after that day with any necessary adaptations to the Company as it applied to the Board in so far as such application is necessary as aforesaid.”.
This amendment would prevent the Minister from selling her shares in the company without the sanction of an Act of the Oireachtas. The implication of subsection (3) seems to be that the Minister can sell 49.9 per cent of the shares and requires only a resolution of the Dáil to sell the remainder. The Minister has moved in the direction of my arguments and I will not press the amendment.
We discussed this matter on Committee Stage and what I was trying to do then was misunderstood. I want to ensure that where an individual unknowingly commits a crime, he or she cannot be convicted automatically. There is ample precedent in law for this. The best example is in our ethics legislation where if a person does not notify a conflict of interest, various sanctions can be imposed, but where it is demonstrated it is not knowingly omitted, a committee of the House would take that into consideration and the sanctions would depend on the degree of knowingness involved. The Minister said she would look at this issue again.
My view is that it is bad law because it excludes the possibility of a person inadvertently breaking the law and that inadvertence should be catered for in the legislation, otherwise, an individual who makes a mistake could be convicted. This is worth considering and, perhaps, comprehensive legislation to deal with conflict of interest would be desirable rather than trying to deal with semi-State companies individually in separate Bills.
Mrs. O'Rourke: This issue arose during the debate on the Air Navigation and Transport (Amendment) Bill, 1997 and on this Bill. We sought the Attorney General's advice and his opinion was that we should not go down the road suggested by the Deputy because one should know the law. I appreciate the Deputy did not table the amendment from that point of view, but it creates a loophole with which I do not feel comfortable.
Mr. Enright: I understand Deputy Stagg's fear. However, semi-State company directors have a serious responsibility which is often not acknowledged and they receive token money in many instances. They do this work out of generosity and a desire to serve the public. There is a responsibility on people who accept those positions to ensure business is transacted carefully and fully. There could be a problem with a person who does not take an interest in this. In such cases, a judge using common sense would go along with the initial position when dealing with a person who fails to comply with this provision. To insert the word “knowingly” is gilding the lily and it is unnecessary. A person who has a responsible position as director of a semi-State body should know his business and ensure he is fully informed before he makes decisions.
Amendment No. 15 contains a definition of “confidential information” which was taken from the Freedom of Information Act, 1997. It seeks to insert a much tighter definition of what should be regarded as confidential information. The definition in the Bill was drafted prior to the Freedom of Information Act as it allows any information to be specified. I know from my short and sweet experience as a Minister of State that officials would almost declare the content of the tea in the morning secret in some circumstances.
Mrs. O'Rourke: The Deputy conjures up woeful pictures of the Secretary General and I in cahoots deciding what is secret. That is not the position and I do not know what happened previously. I accept amendment No. 14, which is sensible and precise. With regard to Amendment No. 15, semi-State companies are not photocopies of each other and it is up to each company to decide what it deems to be confidential information. This amendment would be unduly prescriptive. Of course, in time all semi-State companies will be rolled out to freedom of information. Confidentiality in commercial or related matters is always something for which they should have regard. The definition of “confidentiality” is one for each company, which in this instance is Bord na Móna.
Mr. Stagg: It is not a matter under existing law for companies to decide what is secret and confidential. That is defined by the Freedom of Information Act, 1997, which has not been applied to Bord na Móna yet. When will the Act be applied to Bord na Móna? We would then know when this amendment would apply to the company because it will in the near future.
Mrs. O'Rourke: The Deputy tabled a related amendment about that. The Act applies to all Departments and there is a programme of rolling out freedom of information. Health boards, vocational education committees, semi-State companies and the various statutory bodies will come under it. I do not have the timetable. It was  formulated in the Department of Finance and those ideas began when the former Deputy, Eithne Fitzgerald, introduced the Bill.
Mr. Stagg: The Department of Finance is not renowned for its enthusiasm for the Freedom of Information Act or the rights of citizens to obtain information. The Minister is strongly in favour of the Citizen's Charter and the right of citizens to information. She is responsible for many companies. Will she use her good offices to encourage the Department of Finance to bring forward the application of the Freedom of Information Act, 1997, to semi-State companies, including Bord na Móna, as soon as possible?
This arises from Committee Stage proceedings. I accept the thrust of Deputy Stagg's argument but the legal advice is that the word “until” used in his amendment should be replaced by the word “unless”, and the lawyers must have the last word. I ask the Deputy to accept my amendment.
“50.—Any enactment applying to the Company (including this Act) shall, with such adaptations as are necessary to enable it to have full effect in relation to a subsidiary in which, by virtue of this Act, functions of the Company are vested, apply to the subsidiary.”.
“62.—With effect from one year following  the passing of this Act, the Freedom of Information Act, 1997, shall apply to the Company and its subsidiaries as if each of them stood prescribed pursuant to regulations made by the Minister for Finance for the purposes of paragraph 1 (5) of the First Schedule to that Act.”.
Mr. Enright: Those employed by Bord na Móna, and people in the midlands and other areas where the board provides employment, will welcome this Bill. I am pleased it has had a speedy but also searching passage through the House and that so many people took an interest in it. It is of importance to many areas because it is closely related to regional development.
The Minister said the additional £10 million was a matter for the budget but I hope she uses her good offices to ensure it is provided. Employees of the board were given a commitment that £110 million would be provided but only £100 million has been received so far. Bord na Móna is a progressive company and the ESB has reported considerable profits this year so we can be happy that those who provide electricity and fuel are doing so well. Bord na Móna is anxious that the extra money is provided, I ask the Minister to ensure that is done in the next budget and to impress the importance of the matter on the Minister for Finance.
I am delighted that the Bill is so far advanced. Some time ago the Minister told me it would be passed before the summer recess; I appreciate it must go to the Seanad but she has a timetable for its consideration by the other House, which is welcome.
Mr. Stagg: I am pleased the Bill has reached this Stage. I congratulate the Minister on her positive attitude, not alone to Bord na Móna but to parliamentary democracy — she has accepted a number of amendments, which is a positive reflection on the House's detailed consideration of Bills. I look forward to the further development of Bord na Móna and would especially like to see it given control of turf burning power stations. The ESB was never interested in running them — it did so because it had to — but Bord na Móna would have a direct and positive interest in managing them and would do it better, because of its different attitude to turf.
I congratulate the workers, management and board of Bord na Móna for the job they have done and how they have prepared for the new European peat power station in Deputy Enright's  constituency, just across the border from my own. People in both areas will benefit in large measure from that development.
Minister for Public Enterprise (Mrs. O'Rourke): I thank Members for their competence in addressing this Bill from Second Stage onwards. The proceedings were extremely interesting from Committee Stage onwards, in that many Opposition amendments were accepted. Deputy Stagg is correct — I never believed a Bill was perfect because I was the Minister in charge and it came from the draftsman's office. What is the point of democracy or debating Bills if one thinks one's Bill is the best possible? Other people have views with sound legal basis, as the proceedings have shown. The wishes of the unions and management were reflected in amendments which were moved by both parties, represented by Deputies Stagg, Currie and Enright.
Bord na Móna will have a fine future. It is in competent hands and addressing a range of complex commercial issues with prudence and diligence. Those words reflect the way the company does its business and I wish it every success. I will consider the issue raised by Deputy Enright; how successful we will be is another matter but we intend to go further with it.
This is a most harmonious occasion, with many worthwhile amendments being accepted on Committee and Report Stages. I look forward to the Bill's speedy passage through the Seanad. I sincerely thank my officials in the Department, who have worked closely with me on the legislation.
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