Wednesday, 11 October 2006
Sea Pollution (Miscellaneous Provisions) Bill 2003 [Seanad]: Report Stage
Recommittal is necessary in respect of amendment No. 1 as it does not arise from Committee Stage proceedings. As amendment No. 1 is consequential on amendments Nos. 3 and 20, amendments Nos. 1, 3 and 20 may be discussed together, by agreement.
Bill recommitted in respect of amendment No. 1.
I move amendment No. 1:
In page 5, line 31, after "1999" to insert ", TO AMEND THE HARBOURS ACT 1996".
Amendments Nos. 1, 3 and 20 were referred to in the instruction to committee motion. I want to refer to the motion before proceeding with these amendments. The House has agreed to consider the amendments together. The amendments aim to provide that port companies and harbour authorities will enjoy immunity from being pursued for the recovery of damages in respect of injury to persons, damage to property or other loss alleged to have been caused by a failure to perform, or to comply with, any of their functions with regard to the licensing or storage of petroleum spirit under the Dangerous Substances Act 1972.
Harbour authorities or port companies are charged with the granting of licences under section 21 of the 1972 Act, which provides that "no person shall have petroleum-spirit in his possession or under his control except in a store licensed by the proper local or harbour authority". Prior to the enactment of the Harbours Act 1996, harbours were under the control of harbour authorities under the Harbours Acts. The 1996 Act facilitated the establishment of ten commercial State port companies which, since 1996, have continued to issue licences under the 1972 Act on the basis that section 83(1) of the 1996 Act allows for references to a "harbour authority" in the 1972 Act to be construed as references to a "port company" established under the 1996 Act.
The Irish Ports Association, which represents the views of the State commercial ports, has expressed concern to the Department for some time about the position of port companies and harbour authorities under the licensing provisions of the Dangerous Substances Act 1972 in respect of the storage of petroleum spirit. In summary, the Irish Ports Association contends that unlike local authorities, fire authorities and other licensing authorities, port companies cannot under existing legislation avail of any immunity from suit for their licensing responsibilities under the 1972 Act.
I consider that this provision would give port companies and harbour authorities the same immunity that is enjoyed by other licensing authorities in respect of the type of proceedings which have been outlined. The Department of Enterprise, Trade and Employment, which has responsibility for dangerous substances, has been consulted. It has confirmed that it has no objection to the nature of the Department of Transport's proposed legislative amendment, which I have outlined.
I have absolutely no problem with these amendments. This seems like a sensible provision to include in the legislation. It is probably a result of an oversight that it is not in the Bill as it stands. It does not seem right that a harbour authority should be open to being sued just because it is the licensing authority. It is as if the Environmental Protection Agency could be sued for mismanagement at a waste licensing facility. I have no problem with this measure.
I take a slightly different view of the matter. I am not sure of the justification for exempting port companies from liability. It is not as if they are separate companies, based somewhere in the city centre, which just give out licences. The port companies are responsible for the operation and safe maintenance of the ports within their remit. I am not sure why they should be exempted. Surely they should be legally responsible for operating the ports safely and ensuring that dangerous substances — petrol, in this case — are stored in an adequate manner. I do not see any justification for giving them the kind of immunity that is provided for in these amendments. The port companies have been compared to the Environmental Protection Agency or the Health and Safety Authority, but they offer somewhat different services. They are not just licensing authorities — they also operate the ports. For that reason, they should have a clear legal responsibility to ensure that their operations are conducted safely.
I wish to add to Deputy Shortall's comments because I agree with her. It seems strange that in many of the dealings we have had with port companies, they have taken an independent stance. One would almost get the sense that they are private companies, operating completely separate from any Government direction. They seem to wish to stand on their own two feet, compared to other private operators. In such circumstances, I question whether they should be given separate protection in this manner. I agree with Deputy Shortall's remarks.
These amendments do not represent a major departure. When fire authorities and local authorities issue licences, the licensees have this responsibility. This legislation allows for port authorities to issue licences. If they are issuing licences to third parties, why should they have this responsibility for insurance purposes? It is basically the same set of circumstances. The Department of Transport has no difficulty with this proposal. Similarly, the Department of Enterprise, Trade and Employment has no objection to the nature of this proposal. As things stand, the chief executive of a port company is responsible in circumstances like those which have been mentioned. The measure under discussion will ensure that the port companies will have immunity from suit. We are not ring-fencing this proposal in a manner that ensures it applies to port companies only. Other companies which issue licences, such as local authorities and fire services, do not have legal responsibility of this nature. It is precisely the same principle.
I do not think it is precisely the same. The Fire Service is a particular emergency service. It would not make sense to leave members of the Fire Service open to being sued in the event of a fire not being extinguished properly. In this case we are discussing commercial entities with responsibility, in addition to a licensing role, for operation of the ports. They should have a responsibility to operate those ports safely. I accept theproposal put forward by the Minister of State at the Department of Transport, Deputy Gallagher, in subsection (c) of his amendment regarding individual members of boards of port companies. I see no reason the port company, as a commercial entity, should receive the immunity proposed by the Minister of State.
Any port company will have many responsibilities relating to the safe and commercially sound operation of the port under its authority. What happens if a port company is negligent in the storage of dangerous substances, does not ensure adequate fire safety or allows petrol to be stored in unsuitable conditions and serious damage ensues? If this is a result of negligence then surely that commercial entity should bear legal responsibility for rectifying the damage done and should be capable of being sued when other people's property is damaged or where life is lost. I cannot see any justification for what the Minister of State proposes and I oppose this amendment.
I agree that if such companies license themselves to store dangerous substances then they should bear responsibility. However, why should this be the case if they are licensing third parties? Surely the House will agree that a third party storing material in an area controlled by the port authority should bear such responsibility. When the port company gives a third party a licence to store dangerous substances, with stringent conditions attached, the licensee should bear responsibility. When the port company itself is storing the substances it must bear responsibility.
Before we move to amendment No. 2, I wish to draw attention to the fact that a clerical error has been noted in the title on page 5, line 9. "May" should read "March". I request that this be corrected by means of a clerk's amendment. It will not affect the Bill substantially and I would like to have this rectified.
I move amendment No. 2:
In page 6, to delete lines 1 to 4 and substitute the following:
"(2) This Act comes into operation immediately on its passing into law.".
The purpose of this Bill is to implement a European directive and once the Bill is agreed in both Houses of the Oireachtas there does not appear to be any reason it would be delayed. This amendment seeks to ensure that when the Bill is passed it becomes effective immediately once signed by the President. The Minister of State said on Committee Stage that this will happen automatically, but I am not clear that this is the case. If it does happen automatically there cannot be any objection to including it in the Bill.
I said on Committee Stage that I would reflect on this point, however section 2 is a standard provision that enables the Minister, by order, to commence the provisions of the Act. I have difficulty with the proposed amendment and it does not add anything to the Bill. Without the provision for commencement an Act automatically comes into operation immediately, which is what Deputies Mitchell and Ryan are proposing. It is important that the Minister has discretion in this Bill because the commencement of different provisions may be varied to dovetail with international measures as they come into force. If we consider international conventions, whether the International Convention for the Control and Management of Ships' Ballast Water or one of many others, it may not be possible to have all of the provisions become effective simultaneously. There are different international instruments that do not enter into force on the same date and it is important, therefore, that the Minister sign an order. If we did not have this incorporated into the Bill we would be complying with all of the instruments at once when, in fact, they could be varied. I have no difficulty with this amendment in principle but the matter is greatly complicated by the many international conventions that do not come into force at the same time. If they came into force at the same time I would not have difficulty with the amendment. I ask the House to consider the predicament this amendment presents.
I move amendment No. 3:
In page 6, between lines 7 and 8, to insert the following:
"(4) The Harbours Acts 1996 to 2005, this paragraph and Part 4* may be cited together as the Harbours Acts 1996 to 2006.".
I move amendment No. 4:
In page 6, line 21, after "2001" to insert the following:
", the text of which in the English language (including the Annex to it) is set out in the Schedule".
This amendment is an extension of the definition of the convention. Later in the Bill, at section 7(2) I think, there is a reference to the fact that the convention is reprinted in the Schedule. It seems to me this is a more appropriate Part of the Bill in which to include this reference. The acceptance of this amendment would also suggest that section 7(2) should be deleted. The definition should outline where the text of the convention is to be found for the sake of simplification.
Section 7(2), referred to by Deputy Mitchell, states that the text is appended. I believe that the proposed amendment, while not changing the principle of this, is not necessary because it is already included in section 7(2). The Parliamentary Counsel has advised that the suggested amendment is not necessary.
I move amendment No. 5:
In page 7, line 36, to delete "section 3" and substitute "section 4".
In the definition of a State party the reference to section 3 should read section 4. This is a typographical error.
I move amendment No. 6:
In page 8, line 15, after "and" to insert ", for the purposes of any legal proceedings,".
We were also in disagreement on this on Committee Stage. It seems to be taken that a declaration by the Minister that a country is a party to the convention is de facto evidence of that fact. I understand from communicating with the Department on Committee Stage that this is in reference to legal proceedings and should be made clear in the Bill. In the absence of this additional clause the Minister would, in theory, have the power to declare countries that were not party to the convention to be so, simply because he declared them so. I believe the Minister of States disagrees with me.
The proposed amendment is not necessary. The application of the convention covers all aspects of implementation, not merely legal proceedings. If we were to accept the amendment, we would be focusing on legal proceedings only.
I move amendment No. 20:
In page 28, after line 36, to insert the following:
AMENDMENT OF HARBOURS
38.—The Harbours Act 1996 is amended by inserting the following after section 95:
95A.—No action or other proceedings shall lie or be maintainable against—
(a) a harbour authority within the meaning of section 2 of the Harbours Act 1946,
(b) a company within the meaning of section 2, or
(c) the servants or agents of an authority or company to which paragraph (a) or (b) relates,
for the recovery of damages in respect of any injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to perform or to comply with any of the functions conferred on them under the Dangerous Substances Act 1972.".".
I thank the Deputies who participated in the debate both on Committee and Report Stages. I am satisfied the amendments to which the House has agreed today have improved and strengthened the Bill. I look forward to discussing them in the Seanad at the earliest possible date. The Bill has been around for a considerable time, that is, since 2003, and I hope it will be enacted within a very short period.
I thank the Minister of State for his courtesy in dealing with the Bill and his staff for drafting it. I was not involved in the Second Stage debate and came to the Bill late but I realise its importance and welcome it. Given the growth in world trade and shipping generally, it is becoming increasingly important to protect our marine environment and ensure the safety of our ports.
On behalf of the Labour Party, I thank the Minister of State for his contribution and accepting a number of amendments on Committee Stage. I dealt with the Bill for the Labour Party on Second Stage and it has had an amazing history in the House. The major criticism we must make is that it takes so long to add very important international legislation such as the MARPOL and Bunker conventions to the Irish legislative stock. I hope the Bill will be made law in 2006 after its lengthy passage through the Houses. It is good to see that the Minister of State, after his many travails in the Department of Communications, Marine and Natural Resources, is still dealing with matters concerning the marine in the Department of Transport.
I, too, welcome the passage of the Bill and, given its long sojourn in the Houses, hope it can be brought into force very quickly. I regret I was not able to resubmit some of the amendments I had tabled on Committee Stage. Committee Stage took place so long ago that I cannot remember what procedural or other mistake I made such that I could not proceed to table my amendments on Report Stage. As the basic intent of the Bill is supported by all parties in the House, I, therefore, welcome its implementation and function in managing our affairs on the seas and in our ports.