Regina Doherty (Fine Gael) | Oireachtas source

I thank the Chair. When we adjourned a number of weeks ago, the Minister of State and the Members of the House said that they intended to seek legal advice. I would like to put our legal advice on the record so that we can then proceed, if that is okay.It reads:

1. These advices are furnished in urgent circumstances described below ....

2. Counsel is instructed with the following facts.

3. Querist is a branch of Fórsa trade union representing Airline Pilots ... [We all know them as Irish Air Line Pilots Association, IALPA]

4. The Bill provides for the formation of a company to be known as the Irish Air Navigation Service and for the transfer of certain commercial functions from the Irish Aviation Authority to the new company, and for the transfer of regulatory functions of the Commission for Aviation Regulation to the Irish Aviation Authority and the dissolution of the Commission for Aviation Regulation. The Bill also provides for amendments to the Irish Aviation Authority Act 1993. These include measures under Council Regulation 2018/1139 (on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency) known as the EASA Basic Regulation.

5. Counsel is instructed that certain provisions of the Bill (including those which implement the EASA Basic Regulation) arise out of report into an air traffic accident involving the search and rescue service of the Irish Coast Guard, the Air Accident Investigation Unit R116 Report, published in or about November 2021. In that context, counsel is instructed that the report records the admitted lack of technical expertise within the Department of Transport.

6. The Bill is a Government Bill which was initiated in Dáil Éireann on 4 December 2020. The second stage ... was completed on 4 February 2021. The third stage... was initiated on 4 February 2021 and completed on 17 June 2021. It is to be noted that at this stage the Bill was considered by a Dáil Committee, i.e. the Select Committee on Transport and Communications, the members of whom are all Members of Dáil Éireann. The fourth stage... was completed on 7 July 2021. The fifth stage [was taken on that same day] ... as follows: "Bill received for final consideration and passed".

7. The Bill was deemed to have passed the Seanad first stage and the second stage ... on 28 September 2021. The Bill was then sent to the third, or committee, stage which was commenced on 5 October 2021. The Seanad committee stage is still under way.

8. Counsel is instructed that, to date, neither House has obtained independent technical advice on the Bill.

9. Counsel has been supplied with a letter dated 28 June 2022 from Querist to the Minister for Transport. The letter raises the lack of technical expertise within the Department of Transport and raises the concern that in preparing the Bill the Department of Transport relied upon the technical expertise of the Irish Aviation Authority notwithstanding the fact that the Bill is intended to regulate the Authority.

10. On 29 June 2022 the Minister for Transport attended before the Seanad when this issue was debated. I have had the opportunity to read the transcript. It is my understanding from the transcript that there is no member of staff within the Department with such technical expertise but that the Department commissions such advice from time to time. It appears that the Department did not commission such advice in the preparation of this Bill but that it relied upon the technical expertise of the Irish Aviation Authority in the preparation of this Bill notwithstanding the fact that the Bill is intended to regulate the Authority.

11. Counsel is asked to advise on whether any legal concerns arise in this regard and, if so, what steps may be taken in this regard.

The legal concerns that have arisen as stated by counsel are as follows:

12. Council Regulation 2018/1139 (on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency) known as the EASA Basic Regulation includes the following provisions which are relevant for current purposes.

13. Article 2.6 allows a member state to 'opt in' to certain provisions of the Regulation to certain activities and the personnel and organisations involved in those activities.

14. Crucially for current purposes, Article 4 provides that certain principles shall be observed by the Commission, the Agency and Member States when taking measures under the Regulation, including (a) reflect the state of the art and best practices in the field of aviation, and take into account worldwide aviation experience and scientific and technical progress in the respective fields; [and] (b) build on the best available evidence and analysis.

15. Article 7 requires each Member State, in consultation with relevant stakeholders, to establish and maintain a State safety programme for the management of civil aviation safety in relation to the aviation activities under its responsibility ...

16. Article 8 requires the State Safety Programme to include or be accompanied by a State Plan for Aviation Safety in which, based on the assessment of relevant safety information, each Member State, in consultation with relevant stakeholders, shall identify in that plan the main safety risks affecting its national civil aviation safety system and shall set out the necessary actions to mitigate those risks.

17. Section 67 of the Bill, as amended in the Select Committee on Transport and Communication of Dail Eireann, provides for the insertion of the following provision in the Irish Aviation Authority Act 1992: "32A. (1) The company shall, not later than 30 April in each year commencing from 2022, prepare and submit to the Minister a statement relating to its performance in regulating aviation safety (in this section called an ‘aviation safety performance statement’).

(2) An aviation safety performance statement shall be in 2 parts as follows:

(a) details, including the aims and objectives, of regulatory activity planned for the current year (in this subsection called a ‘regulatory performance plan’);

(b) a review of the company’s regulatory performance during the preceding year having regard to the regulatory performance plan for that year and any other relevant matters.

(3) The review of the company’s regulatory performance required by subsection (2)(b) shall include details of the activities carried out during the relevant year and the outcome and follow up from external oversight in relation to—

(a) the European Aviation Safety Programme referred to in Article 5 of the EASA Basic Regulation,

(b) the safety programme established and maintained by the State pursuant to Article 7 of the EASA Basic Regulation,

(c) the State Plan for Aviation Safety prepared pursuant to Article 8 of the EASA Basic Regulation,

(d) the annual review of aviation safety performance in the State prepared by the company, and

(e) the Universal Safety Oversight Audit Programme of the International Civil Aviation Organization.

(4) An aviation safety performance statement shall be in the form, and relate to the matters, that the Minister directs.

(5) The Minister shall, within one month after receiving an aviation safety performance statement, lay it before each House of the Oireachtas.

(6) In this section, ‘EASA Basic Regulation’ means Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 20181 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.". 18. Section 76 of the Bill provides for the insertion of the following section into the 1993 Act:

"69A. (1)The Minister may make regulations for the purpose of exercising the opt-in provisions of Article 2.6 of the EASA Basic Regulation to give effect to certain provisions of the EASA Basic Regulation relating to the regulation of aviation activities by aircraft (including related engines, propellers, parts, non-installed equipment and equipment to control aircraft remotely) while carrying out search and rescue, firefighting, coastguard or similar activities or services under the control and responsibility of the State, undertaken in the public interest by or on behalf of the Irish Coast Guard and the personnel and organisations involved in the activities and services performed by those aircraft.

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

(a) make provision in relation to all or any aspect of (including any combination of) the matters set out in sections I, II, III and VII of Chapter III of the EASA Basic Regulation as may be specified in the regulations,

(b) apply either generally or to such class of persons or activities or services as may be specified in the regulations,

and

(c) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act, the European Communities Act 1972 and the European Communities Act 2007).

(3) When making regulations under subsection (1), the Minister shall have regard to the following:

(a) the aim to strengthen the national aviation safety regulatory framework for aviation activities of the Irish Coast Guard and aligning it with European aviation safety regulations;

(b) the need to provide for greater specificity in relation to the regulatory framework of the oversight of aviation activities by and for the Irish Coast Guard;

(c) the need to secure the operation and safety of the aircraft, and persons and property contained therein, operated by or on behalf of the Irish Coast Guard and mitigate the risks pertaining to safety;

(d) the need to allow for immediate reaction to accidents and serious incidents and balance the safety requirements with search and rescue objectives;

(e) the interests and views of the civil aviation sector and the general public;

(f) the interest of international cooperation within the European aviation industry and the promotion of European aviation safety standards;

(g) the need to promote effectiveness in regulatory, certification and oversight processes.

(4) The Minister shall consult with the Irish Coast Guard and the company before he or she makes regulations under this section.

(5) A word or expression which is used in this section and which is also used in the EASA Basic Regulation has, unless the context otherwise requires, the same meaning in this section as it has in the EASA Basic Regulation.

(6) In this section ‘EASA Basic Regulation’ has the meaning assigned to it by section 32A(6).

19. The Standing Orders of Seanad Éireann include the following provisions which are relevant in the circumstances now arising: "70. (1) The Seanad may appoint a Select Committee to consider any Bill or matter and to report its opinion for the information and assistance of the Seanad and, in the case of a Bill, whether or not it has amended the Bill. Such motion shall specifically state the orders of reference of the Committee, define the powers devolved upon it, fix the number of members to serve on it, state the quorum thereof, and may appoint a date upon which the Committee shall report back to the Seanad."

"72. Unless the Seanad shall otherwise order, a Committee appointed pursuant to these Standing Orders shall have the following powers: . . .

(10) power to—

(a) engage the services of persons with specialist or technical knowledge, to assist it or any of its sub-Committees in considering particular matters; and

(b) undertake travel;

Provided that the powers under this paragraph are subject to such recommendations as may be made by the Working Group of Committee Chairpersons under Standing Order 107(4)(a)."

20. It is to be noted that Standing Orders 94 and 96 of the Standing Orders of Dail Eireann confer the same powers upon Dail Eireann.

21. The Irish Aviation Authority Act 1992 as amended establishes the Irish Aviation Authority. It is to be noted that it provides, at section 14, that the objects of the authority shall include, "(i) to advise, on its own initiative or at the request of the Minister, the Government, the Minister or another Minister of the Government or any other person in relation to any matter to which a function of the company relates." 22. It appears from the above, under Article 4 of the EASA Basic Regulation, in taking measures under the regulation, Member States are obliged to inter aliareflect the state of the art and best practices in the field of aviation, take into account worldwide aviation experience and scientific and technical progress in the respective fields; and build on the best available evidence and analysis.

23. It is [our legal counsel's] view that sections 67 and 76 of the Bill, if passed into law, will amount to a measure taken under EASA Basic Regulation. It is [our counsel's] view that in passing these sections into law, given the obligation imposed on Member States by Article 4 of the regulation, that it is appropriate that Seanad Éireann should consider whether these provisions reflect the state of the art and best practices in the field of aviation [as set down under EASA regulation 4] and take into account worldwide aviation experience and scientific and technical progress in the respective fields; and build on the best available evidence and analysis.

24. In this regard, the exclusive reliance by the Department of Transport upon the technical expertise supplied by the Irish Aviation Authority and without recourse to its own or independent expertise may well give rise to legitimate concerns that the measures do not satisfy the requirements of Article 4 of the Regulation quoted above.

25. While the Standing Orders of both Houses contemplate that technical advice may be commissioned, neither House has to date [taken] such advice in respect of the Bill.

26. In these circumstances, it seems to me [our legal counsel] that it is appropriate for the Seanad to enquire whether, insofar as the Bill amounts to a measure under the EASA Basic Regulation, it satisfies Article 4 of the EASA Basic Regulation. If, having so inquired, the Seanad is of the view that it may not satisfy that Article, it seems to me [our legal counsel] to be open to the Seanad to invoke its powers under the Standing Orders quoted above to commission independent technical advice in order to so satisfy itself or, indeed, cure any deficiency which may become apparent.

Nothing further occurs at this time.