Vincent P Martin (Green Party) | Oireachtas source

I welcome Mr. Harkin and Mr. Rowe and thank them once again for their generosity in making themselves available. I commend them for the work they are doing on what I hope will make the Martello towers in their ownership accessible to the public.

My first question is on the powers of Waterways Ireland in setting the fees, tolls and charges. The representatives will accept that the exercise of a delegated power, such as that of Waterways Ireland, in setting fees, tolls and charges for mooring under section 7 of the Canals Act, as amended, has to be carried out within the constraints of the delegated power conferred by the Oireachtas. I am referring to secondary legislation, not a carte blanche, and there are strictures on it. I am sure the representatives accept that. The intention of the Legislature has to be fully kept in focus, which the Legislature expressly or implicitly authorises Waterways Ireland to do. In other words, the legislation does not leave Waterways Ireland at large with complete discretion to decide which factors are taken into account in setting the fee, toll or charge. The terms of the Canals Act, as amended, make clear that the setting of a fee, toll or charge in respect of the use of the canals under the legislation is to take place in the context of the performance of Waterways Ireland’s duties of care, management, maintenance, control and regulation of the use of the canals.

While I am flagging this with the gentleman today, I do not expect a substantive answer today, but I believe they did receive a legal opinion after the consultation deadline closed. The basis for arriving at the fees Waterways Ireland proposes to charge is the KPMG report and, as a consequence, Waterways Ireland, in its proposal, focuses on local property prices explicitly as comprising the critical relevant factor in the setting of fees related to mooring, with the stated objective of generating funds for “expensive development works”. The legal opinion, which is that of an eminent senior counsel, Mr. Jonathan Newman, who is not prone to hyperbole, is ambiguous. My question for the witnesses, which is not a detailed one to catch them out or ambush them, concerns the legal opinion. I am not asking them to comment on it today as they are not lawyers, but would they, at the very least, get their own legal opinion from someone of the rank of senior counsel? Have they done that?

The conclusion of Mr. Newman states the fees envisaged by the Oireachtas under the relevant legislation appeared to be concerned with the proper operation and regulation of the canal system rather than the funding of its future development. No one wants Waterways Ireland to fall foul of the law, and it would be inadvertent if it did. I am not implying anything other than that the organisation is doing its very best and I am not saying there is no goodwill on Waterways Ireland's part, but there is precedence in this country, jurisprudence, indicating that organisations like Waterways Ireland sometimes overreach and usurp, through statutory interpretation, the primary intention of the sovereign Parliament when given their powers. Mr. Jonathan Newman concludes there is a substantial and very real risk that the adoption of the proposed by-laws is, in respect of moving fees, beyond the powers of Waterways Ireland, as provided for in the Canals Act, and that a court might so determine were the by-laws to be challenged on the grounds set out. I am reading from an opinion that is not marked private and confidential, nor is it privileged. I have privilege in this House anyway but I am here to be helpful. There is no extant court case. I would like the witnesses to comment on this.

My second question, which I flagged with the representatives before, concerns a perceived difficulty, as the expert said, in how Waterways Ireland arrived at the basis for the legal powers for arriving at the fee. I am referring to the rationale behind how it arrived at that fee. With regard to the fee itself, for somebody along the suburban canals with no service, the increase is 693%, albeit coming from a very low base. For serviced moorings in Sallins, the increase is of 440%. I said the last day that some can pay - there is no doubting that – but in Kildare, where I live and where there are canals, some cannot pay. Why does Waterways Ireland not move away from the one-size-fits-all approach and do something more humane like what is done with the TV licence, in respect of which there are exemptions, and in the issuing of medical cards, where age, ability to pay, financial reality and sickness are considered? Some people are elderly and may have difficulty paying. What is Waterways Ireland’s system? What can it tell those affected today? I invited the witnesses to address this on the last occasion and am repeating the invitation today. Waterways Ireland must not have an ad hoc response to the effect that it will do its best, be compassionate and hear someone out if they ring up. That is not indicative of a national scheme or system of the kind that pertains to the two examples I have given, which take into account the reality of people’s circumstances. I would be grateful for answers to my two questions. I thank the Chair for his indulgence.