Denis O'Donovan (Fianna Fail)

A bit like Bantry pier running out of water, the way I am going, I will soon run out of steam. I was in the process of reading into the record correspondence and minutes which deal with consultation and, in some cases, the lack of it. It is relevant to the amendment and to the section. Most of the minutes and letters to and from the Department refer to different areas of co-operation, consultation and so forth. I hope the Cathaoirleach will give me some indulgence in this matter. I will continue to read the minutes of the meeting of 9 December 2004:

Mr. O'Riordan said a matter that could be considered was that of the rates which are being paid to Cork County Council in respect of the SPM [single point mooring buoy], a facility which is unique to Bantry. These fees would be of immense assistance to the Port of Bantry. Mr. Guilfoyle said he would imagine the Department and the council would have strong objections to a diversion of these funds.

Will the Minister of State inquire as to the status of the rates being paid for the single point mooring buoy, how much is paid annually and how much has been paid since the buoy was put in place eight years ago? I do not want a side-step answer claiming this is a matter for the Department of the Environment, Heritage and Local Government. It is critical to the board's finances. Bantry Bay Harbour Commissioners are historically, almost umbilically, tied to the Department for good or for bad.

The minutes continued:

Mr. Guilfoyle suggested he would arrange for a liaison officer in his Department, with whom the board would have regular contact with. Despite invoices being lodged with the Department, he said there was a query with regard to the €1.9 million as promised by [the then Minister] Deputy Frank Fahey, pursuance of same could be a legal matter.

The meeting then went on to deal with the Burke report. The minutes read:

Mr. Guilfoyle said this matter was tied in with issue of corporatisation. He said his Department's view was that it was in Bantry's best interests to amalgamate with the Port of Cork. He suggested to make contact with personnel there and to explore all aspects of the operations of an amalgamation that would best serve Bantry.

When the chairman inquired as to the public private partnership possibility, Mr. Guilfoyle said his Department would have an open mind on the issue.

I would imagine the PPP would have been involved in the construction of a new pier and other ancillary items such as dredging and the development of the inner harbour.

The minutes continued, "Ms Baker inquired as to the scenario if the board was not in favour of joining Cork, Mr. Guilfoyle said it would result in complex legislation." Interestingly, we are now in the throes of complex legislation which will have a major impact on Bantry. The minutes noted, "The latter said it was the view of the EU that Ireland has too many ports, hence all ports are being encouraged to work together." I must add the working relationship between the Bantry Bay and Cork Port authorities has been quite successful without any hitches in recent years.

The minutes continued:

Ms Baker inquired as to Mr. Guilfoyle's vision for Bantry. The latter replied that at the end of the day it was a matter for the people of Bantry.

That is a most critical response by Mr. Guilfoyle, an eminent official whom I got know and an honourable and decent man.

The minutes continued, "He [Mr. Guilfoyle] encouraged maximum utilisation of the port's natural resources." I cannot see how maximum utilisation of the port's natural resources can occur in a forced amalgamation with Cork Port. The authority has said there are certain aspects of Bantry Bay and workings of Bantry Port that are not an issue for it.

The minutes continued:

The chairman inquired as to the viability of a marina. Mr. Guilfoyle said they are satisfactory only in areas of high population. There was no provision for funding in the Estimates for marinas at the moment, nor in next year's Estimates.

I always thought marinas came under marine tourism. However, with so much reconfiguration of various Departments, I am somewhat confused. Is marina funding still under the Minister of State's remit?

The minutes noted:

With regard to the foreshore, the chairman stated the line identifying the watermark must be accurately established and developments are ongoing to clarify this matter.

At the suggestion of Mr. Timmy Minihane, it was agreed the chairman and Mr. Alec O'Donovan would accompany Mr. Guilfoyle to visit the pier while the tide was out [which was done].

The chairman, Mr. O'Riordan and Mr. Casey thanked Mr. Guilfoyle for coming to Bantry to meet with the commissioners. Mr. Guilfoyle said he looked forward to working with the commissioners in the future. The meeting was then closed.

I am running out of correspondence on this issue but I have a few letters still to read out. They all have to do with Senator Paschal Donohoe's amendment. The next letter is from the then Minister of State, Deputy John Browne, dated 8 September 2004, to Ms Laetitia M. Baker, An Muileann, The Quay, Bantry, County Cork, re her appointment to the board of Bantry Bay Harbour Commissioners.

It states:

Dear Ms Baker,

I am pleased to inform you that you have been nominated to be an appointed member of the Bantry Harbour Board until the day preceding the second Thursday of the month of October in the next election year.

It should be borne in mind that this Department is currently in active discussion with the Department of the Environment, Heritage and Local Government on the modalities for the transfer of harbours currently operating under the Harbours Act 1946 to local control i.e. to the appropriate local authority or port company. The tenure of harbour board members will end should the harbour be transferred to local authority or port company control subsequent to the 20.04 harbour elections.

The warrant of your appointment is enclosed.

The rest is not relevant as it is a letter of appointment. With regard to consultation, I am making the point succinctly that for good or evil, whether consultation took place during the past decade, we are at a juncture where the consultation process has been sidelined. It has received a yellow or a red card.

A critical event took place in Dublin on Thursday, 6 January 2005, at a time when many people would still be on vacation. A press release was issued from the Department of Communications, Marine and Natural Resources and received by the Bantry Harbour board office. It states:

Marine Minister Pat the Cope Gallagher today launched the Government's Ports Policy Statement 2005. The Minister said that the policy statement aimed to better equip the port sector and its stakeholders in order to meet national and regional capacity and service needs through:

Clearer and more focussed commercial mandates for the ports and their Boards.

Enhancing Board performance through reform of the structure of port Boards.

An urgent search for good, viable projects to ensure that we do not suffer from capacity shortfalls.

Exchequer funding of major projects where necessary.

Encouragement of private sector investment and involvement.

Sanction for the use of non-core assets to fund new port development but not to mask inefficiencies.

Encouragement of healthy competitive conditions within and between ports.

Better consultation and dispute resolution between port companies and users through appropriate information sharing and arbitration mechanisms.

Encouragement of mergers where a business case exists.

Better transport policy coordination.

It was critical that the area of consultation was pronounced in this launch. A consultation process should have taken place between Cork Port Company and Bantry and possibly refereed and supervised by the Minister and the Department. The harbour board in Bantry was proactive in seeking to engage with Cork Port on consultation and to meet the Department. The publication of this Bill was like a bombshell to the consultative process that should have been let run its course. Perhaps then I would not be here fighting the cause in this regard.

The press release continued:

Minister Gallagher said, "The policy outlined here today will provide the framework for the efficient operation of our ports into the future. There are a number of areas which we must address to achieve this. Ports have clear commercial mandates and the challenge for them is to realise their full commercial potential so that they can provide adequate infrastructure and services to meet customer needs."

The Minister added, "To enable ports to achieve these goals the correct supports must be in place. We will also ensure that the future direction of our ports involves the input of the port users and all relevant stakeholders."

This is a critical line from the Minister of State, Deputy Pat the Cope Gallagher, which he stated in January 2005 and I emphasise it.

The press release continued:

The Marine Minister said that one of the key challenges that lay ahead was the timely provision of adequate in-time port capacity. The internal resources of our commercial ports are not sufficient in general to fund large-scale infrastructure projects. This is a significant challenge in view of the need for additional capacity at our ports over the coming years, particularly for unitised trade. The Government will part-fund such projects where own or private sector resources are insufficient to deliver on the capacity requirements for the growing Irish economy."

Minister Gallagher said that his Department will consult with the commercial ports concerned to determine their view of port capacity and how they intend to deal with the projected capacity needs.

Some of this may refer to other ports but a few more paragraphs deal with this issue and it is important to put them on the record. The press release also stated:

In this regard, the Department would seek to identify the key projects proposed by the commercial ports as essential to deal with anticipated capacity deficiencies to 2007 and beyond, and would establish whether the ports see these being funded from their own resources or in partnership with the private sector.

My learned colleague, Senator Buttimer, might be interested in how this relates to Cork Port, which is in courtship with Bantry or, should I state, like an angry father seeking a shotgun marriage. The major proposal which I supported was a major expansion of the freight capacity of Cork Port, which was ambitious. Under the Planning and Development (Critical Infrastructure) Act, Cork County Council was not involved but it went straight to An Bord Pleanála which rejected the ambitious and timely development in Cork Port. That was a mistake.

The press release contained additional information which explained that:

The State ports have evolved from being essentially public utilities with unclear mandates to entities with clear commercial mandates. They are generally regarded as being operationally efficient. Private sector involvement in providing services within the ports has increased.

This is critical with regard to consultation with Bantry.

In one of my little interactions here I made a point on the issue of the viability of Bantry. In every year except one of the past ten or 12 years it was in the black and commercially strong albeit relatively small in comparison to the major ports. It has an excellent track record. If we had lost €400,000 or €500,000 every year and had debts of a couple of million euro, I would not be here today to support the cause.

The Department pronouncement by the then Minister of State also states: "Current policy is to require the ports to operate commercially, without Exchequer support, and to provide adequate capacity for the future needs of the economy."

What is stated with regard to port company boards is important for this Bill and its wider remit as well as the lack of consultative process.

Board members should have the appropriate mix of competencies and skills to contribute to advancing the business and corporate governance of the company. Local authority representation will be reduced to one, staff representation will be confined to one and user representation will cease. A panel of appropriately skilled potential Board member candidates will be established.

The Opposition called a vote on this. We have dealt with the matter, but the Bill will affect it. It is a retrograde step that port user representation and local authority representation is at an end.

I will move on as I am mindful of the time. The next subhead in the press release is "Seaport Capacity and Funding" and it states: "A requirement for additional seaport capacity is predicted in the period up to 2014, with a particular emphasis on the growing unitised trade sector." As a matter of record, this is the period of time that I want the Minister to consider letting the status quo prevail in Bantry. The remainder of the paragraph states:

Given long lead-in times and the need to have in-time capacity in place, it is essential that a policy framework within which to identify, fund and progress any new capacity additions be put in place as soon as possible. The Minister envisages urgent consultation with ports and private sector providers on capacity needs and plans, and thereafter, identification of a small number of.high quality projects aimed at providing the required capacity. Clearly, not all proposals are likely to proceed.

The former Minister of State, Deputy Gallagher, in this departmental press release of January 2005, is the third or fourth Minister to set out clearly the parameters for consultation and why it should take place. I will lead on to the more critical issue of due diligence in due course. That is central to the debate.

Under the subheading, Integrated Transport Policy, the document states: "Co-ordination with the Department of Transport will be intensified in order to ensure effective integration of transport policy across all modes." Under the next subheading, Competition, we are told:

Competitive conditions are present within and between ports. The Minister will seek to ensure that future capacity constraints do not lead to dominant or monopolistic conditions.

The document goes on to state under the subheading, Regulation:

The Minister considers that there is an insufficient case for the extension of an economic regulator to the port sector. He intends, however, that disputes between port stakeholders and the port will be addressed to an arbitrator whose opinion will be binding.

Will the Minister of State comment on the proposal to set up an economic regulator for the ports in the event of disputes between users and so on? Such disputes have occurred in the past. For example, there were tensions between the aquaculture industry in Bantry Bay regarding rights for shipping lanes. There was also, to a lesser extent, tension between the owners of pleasure boats and those engaged in inshore fishing. Whether Bantry stands alone or is amalgamated with Cork, there must be clarity as to how such consultation is proposed to take place.

Under the subheading, Mergers, the document states: "The Minister sees groupings and partnerships of ports as options to reduce costs, create synergies and improve marketing and critical mass." I have no difficulty with partnerships. This goes to the core of what I have been saying on this issue. However, what is proposed for Bantry is not that we will be partners of any description, junior or otherwise. Instead, we will be sucked in and taken over by Cork Port. It is infuriating that consultation will take place only after the event. I was never a trade union member, although I have great respect for them. If something similar happened in trade union circles, the ICTU and other organisations would kick up a stink. They would not tolerate a situation where one is presented with a fait accompli and only then is consideration given to consultation.

The document goes on to state under the subheading, Privatisation:

The potential and strategic significance of the ports varies between one port and another. The Minister intends to maintain an open mind on privatisation of port ownership and will seek to maximise private sector involvement in the ports, including funding.

Bantry Bay is of significant strategic commercial importance. It had the pride of holding the entire British navy when its fleet was at its largest. That entire fleet could be and, regrettably, was sheltered in Bantry Bay.

There are issues to consider in regard to the consultation process as outlined by the Minister of State before we come back on Report Stage, at which point I will have to sink or swim. First, under existing legislation, the Minister can, with the consent of the Minister for the Environment, Heritage and Local Government, sign an order to the effect that, for example, Bantry Bay Harbour will be taken over by Cork County Council. I hold some favour with this proposition.

The second issue is privatisation, as the Minister of State calls it, although we used to call it corporatisation. Is the Department now saying that this process is no longer an option for Bantry? If so, will he provide facts and figures to support that position? When we had a five-hour debate one night, going into the early hours of the morning, on the various options in Bantry, we all rejected the idea of being taken over by Cork Port. Nor did I favour corporatisation for various reasons, which I will expand upon when we discuss section 18.

The final paragraph, which has the subheading "Consultation with Port Users", is critical. It states:

The Minister is committed to ensuring that change at the policy-strategy level is designed, implemented and progressed in full consultation with relevant stakeholders. He intends to instruct ports to ensure that a forum exists within each port for local users to voice their views and concerns.

What is happening in Bantry is in total contradiction of what was envisaged by the previous Minister of State, Deputy Gallagher, in this press release of January 2005. With all due respect, what has happened flies in the face of the notion of consultation as promulgated in this policy statement announced just three years ago.

That is why I am speaking in support of Senator Donohoe's amendment. It is there in black and white. I have great difficulty in understanding why this statement of departmental policy, issued only three years ago and clearly setting out the requirement for consultation with port users, has not been adhered to. I am now being told that consultation will take place when the Bill comes into law, having been passed by both Houses and signed by the President. The board of Bantry Port has looked at the possibility of judicial review and consulted eminent senior counsel to this end. There is a dread of what the future holds. This consultation should have been embarked upon and completed within a defined timeframe. The Minister should have come to the people in Bantry — the same could apply to Fenit or other ports — and said, "We are giving you 18 months to get your house in order and we are also asking Cork Port to negotiate and engage with you, to work out the pros and cons of such an amalgamation." If that had been done, according to the Department policy as enunciated in this edict of 6 January, I would be saying here that we had been given the opportunity and, for whatever reason, it was not successful. We would have to put our hands up and say we had failed to comply.

In the Department, and politically in the Minister, there has been a shift in policy within the past three years. I find that difficult to accept. The shift in policy will be detrimental, especially to the port of Bantry. The Minister says this is enabling legislation and might not come to pass in the short term. Why in the name of God put a poor old soul like me, in the month of the holy souls, under such stress and strain in the Seanad when it might never come to pass? Why was the consultation set out by the former Minister of State, Deputy Pat the Cope Gallagher, when he pronounced Government policy on 6 January, not followed?

Lest my good friend and colleague, Senator Buttimer, when he is travelling socially through the constituency, should say that I was giving out about Cork Port, its officials and so forth, I should point out I have nothing against the people there. Good luck to them. They have big plans and I support most of what they do. However, Cork Port will find it impossible in practical terms to work with Bantry if there is no consultation. If what is set out in Senator Donohoe's timely amendment were to be achieved, it would comply with clearly stated recent Government policy. It is not policy from the 1960s, 1970s or 1980s but policy from barely three years ago before the publication of this Bill.

I am dismayed, stung and surprised that we are now proceeding with certain aspects of this Bill that fly in the face of policy. In fact, I find it difficult to accept what is being done. I will be here until Christmas Eve and during next year saying that consultation, a key element in this amendment, has been sidelined. In case somebody should claim I am reminiscing, every word I have spoken into the record today is material I have gone to the trouble of finding, even over the weekends, in researching reports and finding issues of relevance to this Bill. My comments today and the quotations I have used have not been made by me previously. I am glad I went through that material and that I have put the final paragraph from the edict or policy statement by the former Minister of State, Deputy Pat the Cope Gallagher, in 2005 on the record. It deals with the kernel of the issue before us, what was said in 2005 and what I and the port users and members of the harbour board in Bantry understood to be the case.

Why the rush with this legislation and why the lack of consultation? There is a list of approximately 12 or 15 other small ports. They are not commercial, although that is arguable in the case of Baltimore in west Cork which has an unusual mix of sailing, fishing boats and trawlers and an important daily ferry to Sherkin Island and Cape Clear. It is in limbo. To emphasise the point about the lack of consultation, I believe this will happen to that port. It is not provided for in the Bill. I do not know why but perhaps it is not necessary because it can deal with Cork County Council.

I will outline the facts. I have been dealing with this on a hands-on basis for many years. I sometimes get strained because I feel very emotive about this issue. However, I will tell the story of Baltimore and Cork County Council in my own way. I knew a character at one time who has now gone to his grave. I was at his funeral. He was fond of the drop of Katie Daly or poteen. He was a fierce character and he courted a girl who was totally against the dropeen. It was a case of never the twain would meet. He always said he would never marry her unless he was drunk and she said she would never marry him unless he was sober. It never happened. It is the same story with Baltimore and Cork County Council.

The county council is saying it has no intention of taking over Baltimore because it has problems and no infrastructure. I accept money was spent on the harbour recently but there are complex issues such as the daily necessary ferry to Cape Clear, Oileán Cléire, and Sherkin Island. There are passenger ferries as well as ferries dealing with commercial traffic. If one wishes to build a house on Cape Clear, the blocks, gravel, timber and so forth have to be brought by ferry. There is a roll-on roll-off ferry for such traffic. There is also the yachting fraternity and the few surviving fishermen, to whom I am very close. There are also marine leisure facilities at the port.

Under this Bill, Bantry Harbour is being asked to allow Cork Port to take it over. Baltimore, however, is in limbo. I have encouraged meetings between the manager of Cork County Council and the Baltimore Harbour board to see if they can come together and work out a strategy for the future. The Department stands aside and says it will happen sometime. It will not because of the amount of money that was spent in Baltimore and to a lesser extent in Kinsale. Senator Ned O'Sullivan makes other valid points about places such as Fenit. There is a case where consultation has worked. I do not have in-depth knowledge but from my inquiries I understand that what happened in Sligo was the result of consultation and agreement. That model could be replicated. It is a different port with different issues but that example should be examined carefully.

Kinsale is another port in my constituency with a great history from before 1601. The situation there is another recipe for disaster. There are major potential problems. The harbour is close to Cork and has commercial activities, including fishing. I know the town well. It is a beautiful town that has a strong culture and heritage. More importantly, over the past 40 years it has become the culinary capital of Ireland with its great restaurants. However, unless there is consultation, there will be problems in the future for that harbour.

I can only speak on this Bill and about the issue of consultation. I might have time to put a letter on the record. It is a letter written by Mr. Aiden McCarthy, chairman of Bantry Bay Harbour Commissioners, to Mr. Dermot O'Mahony, chairman, Port of Cork Company, Custom House Street, Cork. I will soon turn to the issue of due diligence which will take another couple of hours on the next day of the debate. The letter is dated 17 February 2005 and states:

Dear Dermot,

As the newly elected Chairman of Bantry Bay Harbour Commissioners, I would like to arrange a meeting with you at your earliest convenience.

The main topic of conversation would be the Directive [this is the directive I referred to earlier] from the Department of Communications, Marine and Natural Resources to explore the possibility of amalgamation. Following a meeting with Mr. Michael Guifoyle in Bantry, he encouraged us to set up this meeting as soon as possible.

We would be happy to travel to Cork when a suitable date can be arranged.

I look forward to hearing from you.

Yours sincerely[.]

This letter shows the response of the board in Bantry, of which I was a member, to the edict or policy statement. The chairman, within roughly one month of getting that policy edict——