Mr. Séamas Ó Tuathail:

I am grateful to Ms Graham for her presentation but there are one or two comments I would like to make on it which may be of assistance.

As members of the committee will have already seen my submission to the committee, I do not propose to read it in its entirety into the record, although I stand over it. The are three issues which I would like to address: the appropriateness of providing constitutional protection, which has been a motivating factor in the campaign to include this amendment in the Constitution; the adequacy of the protections currently provided by existing legislation, including the Water Services Act 2013 and the Water Services Act 2014, in regard to the possible disposal of Irish Water, which Ms Graham has addressed, and the risk of unintended consequences of any constitutional protection, including in regard to water supplies owned by individuals and groups. I come from a part of the country where people's water is obtained from wells or a group water scheme. B'fhéidir go bhfuil an Cathaoirleach sa chás céanna sa Spidéal. I am aware that neither private wells nor group water schemes were discussed much during the political campaign which preceded the imposition of Irish Water some years ago.

I will deal first with the importance of access to water, which is covered in paragraph 1 of my submission. Different parts of the world have had experience of water shortage and with privatisation of water. In this regard, I mentioned the recent experiences of the city of Detroit and the State of Michigan. In regard to privatisation, the adequacy of existing protection is provided for in the Water Services Act 2007, the Water Services Act 2013, the Water Services (No. 2) Act 2013 and the Water Services Act 2014. There have been changes to all those Acts, as people familiar with them will know. The Water Services Act 2013 created the vessel to which functions created for water authorities - the local authorities - under the Water Services Act 2007 could transfer. This vessel was established in the form of a company, now a designated purpose company limited by shares under the Companies Act 2014. This new company would be a subsidiary of Bord Gáis Éireann, now Ervia, and would be called Irish Water. It was prescribed that the memorandum and articles of Irish Water would comply with this Act. The legislation also provides the legal basis for Irish Water to install and maintain water meters in dwellings.

The Water Services (No. 2) Act 2013 provides primarily for the transfer of functions and property from the water authorities which were provided for in the 2007 Act to Irish Water under sections 7 and 10, respectively. Provision was also made under that Act that Irish Water would be empowered to charge for water. The Water Services Act 2014 was enacted to provide for the statutory requirement of a plebiscite on any proposal to go before either House of the Oireachtas under which the shareholding of Ervia would be transferred from the Minister for the Environment, Community and Local Government and the Minister for Finance. The Act also provides for a cap on water charges, a grant and, inter alia, the establishment of a public forum on water.

I would like now to deal with the statutory prohibition on the alienation of the shareholding in Irish Water derived from the aforementioned Acts. The share capital of Irish Water is valued at €1 million, divided into 50,000 A shares of 0.1 cent each and 50,000 B shares of 0.01 cent each. Section 5 of the 2013 Act provides that the shareholding of Irish Water will be divided among Ervia, the Minister for the Environment, Community and Local Government and the Minister for Finance, with one share with voting rights going to Ervia and the remainder being divided between the two Ministers, with no voting rights. Initially, there was no prohibition on the alienation of the shares only. In other words, Ervia could not alienate its share without the consent of the two Ministers. This was changed by way of amendment of section 46 of the Water Services (No. 2) Act 2013 to provide that neither Ervia nor the two Ministers could alienate their shareholding. Section 2 of the 2014 Act provides that a public plebiscite must be passed in favour of selling the shareholding of Irish Water before a Bill allowing for such could be enacted into law. The constitution of Irish Water - the memorandum and articles of association - under the Companies Act 2014 reflects the statutory prohibition on the alienation of shares and plebiscite requirement, as it must be in keeping with water services legislation. However, and this is the point I want the committee to note, both the requirement of non-alienation of shares - the Ministerial shares - and the requirement of a plebiscite can be removed by subsequent amending legislation of the Dáil. This means that statutory protection of the shareholding can be undone by the consent of current or future Governments by way of support for a vote in that regard by the Dáil. Hence, the concern of the Right2Water campaign that the privatisation of what are now public water supplies could proceed at some future time. Of greater concern are the wide powers given to Irish Water under its own memorandum of association in terms of disposing of assets via the transfer of assets under contract to private interests.

Also, borrowing against the asset means that the assets can be taken legally in satisfaction of a debt. Only ministerial approval is required for the exercise of some, though not all, of those powers. I will depart slightly from the point to mention that we already have a history in this respect. We have seen the privatisation of Telecom Éireann. We have seen, with European law, the removal of waste services from public councils around the country, and we have seen sky-high bills going out to people for the collection of the bin on the side of the road. This is a real fear. This is what the water campaign wishes to stress.

I agree that existing protections in terms of possible events are wholly inadequate. The only act that is prohibited under statute and in the memorandum of association of Irish Water is the alienation of the share capital, which is only valued at €1 million in total. The requirement of a plebiscite is a statutory requirement. These requirements can be undone by the consent of a Government with a majority in Dáil Éireann using statutory amendments to remove them. This is not to say that we are in any fear of a Dáil vote in that direction, but the possibility is there as an issue of simple legality and laws of the Oireachtas.

I mentioned that previous Governments have sold shareholdings in various former public sector companies, which have in certain cases resulted in detrimental consequences for the public. I give the example there of the Eircom sale. That sale gave rise to a serious lack of investment in key technological infrastructure, and hindered greatly investment by industry into areas of the country not supported by broadband, but in dire need of job creation. I could add, perhaps, Aer Lingus to that list. I have mentioned Telecom Éireann and the privatisation of bin collection. I will go ahead from that to deal with the appropriateness of constitutional protection, which is one of the main excuses that I have to be here today.