Ms Philomena Poole:

I thank the committee for the opportunity to address it this morning. I wish to advise that the statement that I am about to make is that of the council's executive and not the elected members. The statement, for the most part, reiterates and updates my submission to the joint committee on 30 June of this year.

Dún Laoghaire-Rathdown County Council is fully supportive of the national ports policy and has engaged with the Department of Transport, Tourism and Sport since the policy was launched last year. I view Dún Laoghaire Harbour as a valuable and integral asset of Dún Laoghaire-Rathdown as a county and of the town of Dún Laoghaire as well as the greater Dublin region.

The council has commenced a formal engagement with Dún Laoghaire Harbour Company. A working transition steering committee now meets regularly to enable the transition of functions from the Minister to the chief executive of the local authority. The steering committee is currently in the process of engaging due diligence expertise, having received confirmation from the Department that it will fund the exercise. It is anticipated that the process will run alongside the work of the transition group and will highlight any areas for attention or concern prior to the transfer.

Having reviewed the general scheme of the harbours (amendment) Bill 2014 and the associated regulatory impact analysis, my comments are as follows. Heads 1 to 6, inclusive, are noted and we have no comment. With regard to head 7, in the explanatory notes it is clear that control of the port is to transfer to the local authority. However, as it currently stands, the board has no vacancies as all positions have been filled. In effect, the new shareholder of the local authority will have no ability to appoint members to the board of the company until 2016. The explanatory note to subhead (3)(c) states that ministerial appointments of directors will no longer apply, yet the authority for this function is not expressly indicated in the heads. In my opinion, that should be done in the Act and not in company fillings as envisaged. Consideration should be given by the joint committee to affording the chief executive an opportunity to appoint supplemental board members in the short term to ensure a smooth transition. This has been the subject of discussion with Department officials and they have indicated that they will bring the matter to the attention of the Minister. It should also be noted that any reference to county or city manager should now be replaced with the new title of chief executive. I note that it is not intended that the Minister retain any corporate governance function or oversight of the company, and that these areas will be the sole responsibility of the local authority. It would be desirable that some guidance or mandatory obligations in the area of corporate governance apply, expressly and by law, to the company. That means obligations consistent with those applicable to the council staff with regard to ethics, particularly the code of conduct and the Local Government Act 2001. In this regard the joint committee may wish to consider requiring that the statutory ethics provisions of Part 15 of the Local Government Act apply to the company. The matter has been discussed with Departmental officials and could be addressed in sections 27 to 29, inclusive, of the Harbours Act 1996.

It is further noted that there is no reference in the scheme as to whether sections 139, 140 or 183 of the Local Government Act 2001 will apply in regard to the operation of the company. The joint committee might wish to consider the implications of same.
Heads 8 to 10 are noted and we have no comment. In head 11 it is noted that the Minister's powers to issue directions are limited as described in head 11(1) and these are sui generis to the development of harbours and safety in the context of the national ports policy rather than relating to specific locations.
In Part 3, heads 12 to 16, the council has already expressed a preference for the process in Part 2 of the general scheme and does not propose to comment on Part 3. Part 4 does not relate to Dún Laoghaire Harbour and Part 5, head 19, does not apply to the harbour. On head 20, it is noted that this provision maintains the exclusion of elected members from being directors of a company established in accordance with Part 2, as has been the case since 2009. Heads 21 to 23 are noted and we have no comment. On head 24, the council notes this provision and that there is an extant request made under the Harbours Acts to extend the limits of Dún Laoghaire harbour from 600 m to 1500 m. The council is supportive of this request as it will facilitate the continuing development of the cruise business in Dún Laoghaire. Head 25 is noted and we have no comment.
It should be noted that, following recent discussions with the Department of Transport, Tourism and Sport and having reviewed a document entitled “Likely required Ministerial reference changes on foot of a company transferred under Head 7”, dated 30 July 2014, there appears to be a significant transfer of oversight responsibilities and autonomy from the Minister to local councils, which we have been seeking in our discussions. In particular, there are the proposed changes to sections 27, 28 and 29 of the Harbours Act 1996.
The issue mentioned earlier regarding control, under Part 2, appears to be addressed in head 17(3). However, the proposed changes are silent on the existing company board composition and whether the chief executive will have the power to remove existing directors upon assuming responsibility for the company. Clarification is also required regarding the terminology used when redrafting the legislation. For example, where the words "local authority" are used, does that refer to the elected council or the chief executive?