Noel Dempsey (Meath West, Fianna Fail)

Section 11 also proposes to standardise the number of employee directors at one per port company. The current provisions allow for two employee directors being appointed at just three ports - Dublin, Cork and Shannon Foynes. The other seven ports either elect one employee director or have an employee director appointed to the board by the Minister. In the context of the overall reduction in board numbers from 12 to eight directors, it is considered that one employee director is appropriate to represent employee interests at board level. This representation ensures that port company employees will continue to make a valuable contribution to the strategic decision-making processes of the port companies.

While it may seem incongruous to talk of additional port capacity in the current economic climate, a cornerstone of the ports policy statement is the need to ensure that our commercial port companies are encouraged and equipped to provide adequate and on-time port capacity. It is vital that our ports are capable of responding to the needs of enterprise so as to facilitate economic growth into the future.

Section 3 has specific implications for the proposed development of a new deep water facility at Bremore by Drogheda Port Company and its partners. This section will amend the 1996 Act and insert a list of principles and policies a Minister shall have regard to when considering an application to alter a company's harbour limits. The insertion of such principles and policies is in line with advice received from the Attorney General and is consistent with the rulings given in the Mulcreevy and City View Press judgments. These principles include planning applications or planning permissions under the Planning and Development Acts 2000 to 2006, various regulatory processes under the Foreshore Act 1933, navigational safety as well as the current and expected capacity of the harbour.

The Bill will further enhance the capabilities of port companies in providing additional port capacity by introducing a greater degree of flexibility into a port company's borrowing capabilities. My Department's study of national seaport capacity issues in 2006 identified a number of significant infrastructural investment proposals. The development and successful completion of these projects may require significant borrowings by the port companies concerned. Currently, the 1996 Act restricts the port companies to borrowing a sum up to 50% of the value of their fixed assets, subject to the consent of the Minister and the Minister for Finance. Section 9 of the Bill allows for a port company, or a subsidiary, to borrow up to €200 million or 50% of the value of its fixed assets, whichever is higher. The borrowings will of course remain subject to the consent of the Minister and the Minister for Finance. Additionally, section 9 will insert the principles and policies a Minister shall have regard to when making an order to vary the 50% limit, which is also in line with the judgments I mentioned.

The Bill also seeks to enhance the ability of port companies to invest outside the limits of their harbours. Currently port companies are restricted under section 11(4)(d) of the 1996 Act from investing outside the State unless such investment would "promote the interest of trade or tourism in the State". Section 4 of the Bill will delete this restrictive provision and section 5 provides for port companies to invest outside their harbour limits, including outside the State, provided consent from both the Minister and the Minister for Finance has been granted. The removal of this restrictive limitation is in line with the strategic objective of enhancing and underpinning the commercial ethos of our commercial ports sector and brings the sector into line with other State commercial bodies such as the ESB and the Dublin Airport Authority.

Section 7 pertains to the transfer of certain ministerial responsibility regarding the compulsory purchase of land by port companies to An Bord Pleanála. Currently, port companies seeking to make a compulsory purchase order must apply for a ministerial acquisition order under the Fourth Schedule to the Harbours Act 1996. While this function has been exercised only once since its enactment, it is felt more appropriate that this power be transferred to An Bord Pleanála given its role, pursuant to the Planning and Development (Strategic Infrastructure) Act 2006, as the determining body in respect of planning consent for strategic infrastructure developments at commercial ports. With the new role conferred on the board since 2006 with regard to strategic infrastructure, it is anticipated that An Bord Pleanála will over time acquire and build up a body of expertise and experience in the planning aspects of major infrastructural development generally and particularly, in this case, on port projects. In these circumstances, a strong case can be made that the board would be better placed to adjudicate on port company applications for the compulsory acquisition of land rather than the Minister of the day.

In light of these considerations and that similar functions with regard to the compulsory acquisition of land by Aer Rianta were transferred to the board under the Air Navigation and Transport (Amendment) Act 1998, I believe this proposal is the correct approach to take with regard to the State commercial ports. Similar transfers of ministerial functions have taken place in respect of compulsory acquisition of land by local authorities under the Roads Acts and Housing Act. As I have already mentioned, while there has only been one such application under the Harbours Act in the past 13 years, it is felt appropriate in the interests of best practice and consistency that these functions regarding the commercial ports sector be also transferred to An Bord Pleanála.

While the Bill is primarily designed to address issues identified in the State commercial port sector, I have no doubt that Deputies are aware of the vigorous debate that took place in the Seanad regarding section 18 of the Bill and its potential implications for two of our regional harbours. The proposal sought to provide a legislative basis for the recommendations contained within the 1999 review of the State's regional harbours, and reiterated in the 2003 high level review and the 2005 ports policy statement. It introduced an enabling provision allowing for a ministerial order to be made transferring Tralee and Fenit Harbour to the control of Shannon Foynes Port Company and Bantry Bay to Port of Cork Company. This is a third option in addition to the two options that already exist under the 1996 Act, that is, establishment of a private company or transfer to local authority control.

Arising from the debate on the provision, I was happy to accept an amendment to the section to provide for a statutory consultation period prior to any order being made to transfer these particular harbours to port company control. A local consultation period such as that now included in the section will ensure that all stakeholders will be given an opportunity to present their opinions as to the future status and management of these two important regional harbours.

Furthermore, and consistent with the recommendations of the ports policy statement which called for the transfer to local authority control of regional harbours with little or no commercial traffic, the Bill also provides for the future transfer to local authority control of Arklow Harbour. At the time of drafting the 1996 Act, consideration was being given to establishing a commercial port company in respect of Arklow Harbour. Therefore, the harbour was not included in the list of regional harbours listed in section 87(2) of the 1996 Act that may, subject to a ministerial order, be transferred to a relevant local authority. Since Arklow Harbour no longer has any significant level of commercial traffic, it is considered appropriate that the harbour should appear in this list, which will permit its transfer to local authority control along with other similar harbours across the country.

Accordingly, section 17 will delete it from the list of harbours to be established as commercial port companies and include it in the list of harbours in section 87(2), which may then be transferred to local authority control subject to a ministerial order. While the section will remove Arklow Harbour from the list of harbours to be established as commercial port companies, inclusion in the list referred to above will also mean that a company could be established in respect of the harbour subject, once again, to a ministerial order. That provision has never been invoked since the enactment of the Harbours Act in 1996.

The Bill also contains a number of amendments to the Harbours Act 1996 regarding pilotage and pilotage services. These changes address a number of issues identified since the original Act was passed and changes that are required on foot of the separate provision to alter harbour limits. It is my intention to introduce a further amendment relating to pilotage on Committee Stage to raise the upper age limit for retirement of marine pilots from 60 to 65 years of age. This has been the subject of extensive consultation between the Department and the Association of Marine Pilots of Ireland, as well as the Irish Ports Association.

The overriding objective of the Bill is to improve and enhance the commercial ethos of our State port companies so that they can continue to serve as facilitators of economic growth. It is self-evident that a vibrant, dynamic and competitive commercial ports sector is vital to our future economic growth and prosperity. The Bill builds upon the important provisions contained within the ports policy statement. As well as enhancing the corporate management structures of the port companies, the Bill will aid port development plans. It will further enhance the commercial ethos conferred on our ports by the Harbours Act 1996 and ensure that they are positioned to respond to the challenges they will face.

If Deputy Broughan wants to submit an amendment whereby only Fianna Fáil members can be appointed to these boards, I would be delighted to accept it on Committee Stage.

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