Seanad debates

Wednesday, 21 September 2022

Air Navigation and Transport Bill 2020: Committee Stage (Resumed)

 

10:30 am

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I welcome the Minister of State, Deputy Hildegarde Naughton, back to the House and I welcome her colleagues as well.

Section 65, as amended, agreed to.

NEW SECTION

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendment No. 3dhas already been discussed with No. 3a.

Government amendment No. 3d:

Amendment agreed to.

SECTION 66

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 3e, 3fand 3faare related and may be discussed together.

Government amendment No. 3e:

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Section 32 of the Irish Aviation Authority Act 1993 provides:

The Minister shall, at least once in the period of 3 years beginning on the vesting day [of the Irish Aviation Authority, IAA, 1 January 1994] and in each subsequent period of 3 years... appoint a person to carry out an examination of the performance by the company of its functions in so far as they relate to the application and enforcement of technical and safety standards in relation to aircraft and air navigation and to report in writing to the Minister the results of the examination.

Section 66 of the Bill amends section 32 of the Act to provide that:

the Minister shall, at least once in the period of 5 years beginning on the relevant day [in effect, 8 May 2020] and in each subsequent period of 5 years... appoint a person to carry out [such] an examination... and to report in writing to the Minister the results of the examination.

When section 32 was originally enacted in 1993, the IAA was not subject to extensive oversight and audit by the European Union Aviation Safety Agency, EASA. While section 32 remains an important instrument in the oversight of the IAA, much of its intent is now addressed through oversight by EASA. As such, the policy view in crafting the Bill was that a longer audit interval of five years was now more appropriate. However, I have heard the concerns raised by Senators and have proposed an identical amendment to the Senator's amendment No. 3eto move the five-year period back to a three-year period.

Section 66 amends section 32 of the Act to explicitly provide that the Minister may, if she or he considers it appropriate, publish a copy of the report of the technical and safety examination. While the intention was always to publish the report, it was considered that there may be limited instances where it may be appropriate that the Minister should have the discretion to withhold the publication. However, I have heard the concerns raised by Senators and I have proposed amendment No. 3fa, which removes the Minister's discretion to withhold publication and requires the Minister to cause a copy of the report to be published on a website of the Government.

While I do not propose to accept amendment No. 3fas drafted, I believe amendment No. 3faaddresses in full the concerns raised by Senators.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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If I may interject, I welcome our guests to the Gallery. It is good to have them here in this beautiful building to observe the Houses of democracy in action.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I thank the Minister of State for being cognisant of the request of Senators with regard to the reporting period of three years and, more particularly, the transparency that is required, especially when we are talking about aviation safety, in publishing the Bill. It is not prescriptive, but I wonder has the Minister of State any musings on it. The examination will be encountered every three years. At what point does the Minister of State expect to publish the Bill? Once the examination is conducted every three years, how long thereafter will it be until we see a copy of the report on the Government website?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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If the period provided in section 66 was five years, then it would require the appointment of a person to undertake the performance of that examination by 7 May 2025. With the amendment I am bringing forward, which stipulates a three-year time period, section 66 would require the appointment of a person to undertake the performance of that examination by 7 May 2023.

Amendment agreed to.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 3f:

In page 45, to delete lines 5 to 7 and substitute the following:
“ “(bb) The Minister shall cause a copy of a report under paragraph (a) to be published in such form and manner as he or she considers appropriate.”.”.

Amendment put and declared lost.

Government amendment No. 3fa:

Amendment agreed to.

Section 66, as amended, agreed to.

SECTION 67

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 3g:

In page 45, line 11, after “Minister” to insert “and the Oireachtas”.

Amendment put and declared lost.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 3h:

In page 45, to delete lines 38 and 39.

Amendment put and declared lost.

Section 67 agreed to.

SECTION 68

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 3iand 4aare related and may be discussed together, by agreement. Is that agreed? Agreed.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 3i:

In page 46, to delete lines 13 to 21 and substitute the following:
“ “(2) The first Chief Executive appointed after the commencement of section 68of the Air Navigation and Transport Act 2021shall be appointed by the Minister for a period not exceeding 5 years and may, after consultation with the directors of the company, be removed from office by the Minister.

(3) Each subsequent Chief Executive shall be appointed by the Minister, after consultation with the directors of the company, for a period not exceeding 5 years and may, after consultation with such directors, be removed from office by the Minister.”,”.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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It is probably my fault completely, but what happened to amendment No. 3h? I might be wrong, but I think we went from amendment No. 3gto amendment No. 3iwithout looking at the two deleted lines requested in amendment No. 3h.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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That amendment has been moved and voted on. These things happen. Even Homer nods. We are now on section 68 and amendment No. 3i.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I will press the amendment.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Senator is welcome to speak to the group of amendments.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I am trying to get my thoughts together.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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There was an urban councillor from Cavan who used to say that he had forgotten what he wanted to say but that he would keep talking anyway. Perhaps the Senator could try doing that.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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That councillor would be well suited to this House.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I have not quite figured out what I want to say, but I might start talking in a few minutes. I invite my colleagues to step in ahead of me.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I support Senator Craughwell on this particular issue regarding the relevant period not exceeding five years. More importantly, given the resignation of the CEO designate, I ask the Minister of State to put on the record the plan of the Department regarding that position, which will become vacant before the Bill has been passed. The position will become vacant at the end of October. What plans are in place to recruit a new CEO? Will the relevant periods cited by the Minister of State in the Bill stand? How does she view the request for a five-year limit requested by Senator Craughwell?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I call Senator Craughwell.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I will allow the Minister of State to respond.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Senator is playing for time.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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In September 2020, following an open competition, Mr. Diarmuid Ó Conghaile was appointed aviation regulator and CEO designate of the IAA on a fixed-term contract of seven years. In August of this year, Mr. Ó Conghaile announced his intention to resign his position. He will cease employment with the IAA on 31 October this year. The IAA is in the process of running a recruitment campaign for a replacement CEO. Following consultation between my Department, the IAA and the Public Appointments Service, PAS, the IAA will use an executive search company to support the recruitment campaign. The campaign will also be advertised through the PAS portal.

Under existing legislation, the directors of the board appoint the CEO designate. While the recruitment campaign is ongoing, it is the board's intention to seek approval to appoint an interim aviation regulator and CEO designate. If the Leas-Chathaoirleach wishes me to, I can speak to the amendment.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Please speak to the specific amendments in the group. Senator Craughwell will be ready to come in at that stage. I did not think he would be silent for long.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Section 68, which amends section 38 of the Act of 1993, provides that the first chief executive of the new IAA appointed after the commencement of the section shall be appointed for a period not exceeding seven years and each subsequent chief executive shall be appointed by the Minister after consultation with the directors of the IAA for a period not exceeding seven years. The Minister should have the discretion to appoint the chief executive of the IAA for a period up to but not exceeding seven years. The Bill provides for significant institutional changes to how aviation is regulated in Ireland. It is creating a complex stand-alone aviation regulator. Therefore, it is imperative that the chief executive be appointed for a suitable period that allows for focus on the long-term development of this important regulator. That may require a time horizon longer than five years, that is, up to seven years.As such, I do not propose to accept amendment No. 3i.

Regarding amendment No. 4a, the existing text of section 77 provides that a committee of the House may request the attendance of the chief executive or a relevant officer of the IAA to account for the performance of the authority's functions at any time. Given this, it is a matter for the committee itself to decide how often it wishes to request attendance from the chief executive or a relevant officer. As such, I do not propose to accept amendment No. 4a.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I thank the Minister of State but there are a number of issues here. First, having the Minister appoint a chief executive officer to the IAA when the Minister does not have aviation expertise within his or her Department is a matter of great concern. In fact, I am deeply concerned about anything that goes on in the Department of Transport at the moment while we are without aviation expertise. We have hashed this out over and over again, over several months, and notwithstanding the fact that the air traffic investigation unit has pointed out the need for aviation expertise within the Department, the Government still has not appointed an aviation expert. It strikes me that we are bringing in consultants to assist us with various issues within the Department and the Minister or Minister of State may contract in consultants to mitigate risk but what they cannot do is contract in responsibility. The responsibility stops at the Minister of State's desk or at the Minister's desk at any given time.

A seven year term is very long in any business. If we end up getting a bum steer at some stage, we will be stuck with that person for seven years. It is extremely difficult, notwithstanding the fact that there is an opportunity there for the directors to act, in this world to remove a CEO once he or she has been appointed. The period of time involved is too long and that is why I proposed a five-year term. Again, I go back to my concern about the lack of aviation expertise right the way through this Bill. That is not the Minister of State's fault. She is just the person fronting up this Bill but at the end of the day, it will have her name on it for eternity, as the person who brought the Bill to and through this House. I have deep concerns and I will keep expressing those concerns. There are no aviators in the Department of Transport so we are relying on the people for whom we are writing the legislation to advise. The regulators are regulating themselves for all intents and purposes and I have huge difficulty with this.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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I just want to put on record my thanks to Mr. Ó Conghaile for his work at the IAA. His departure was a surprise and the fact that he is potentially moving to Wizz Air poses different questions. The issues of concern to me are not really related to Senator Craughwell's point. Mr. Dalton Philips has stepped down as the chief executive of the Dublin Airport Authority, DAA, and we now have a new interim appointee. I wish her well in her position. She is a former financial controller and is a very competent and capable person. Mr. Ó Conghaile is leaving the IAA and there will be an interim appointee to replace him too. At a time when our aviation sector is in a very precarious position, I am concerned that we are losing corporate knowledge of significant status.

I thank the Minister of State, Deputy Naughton and congratulate her on the appointment of Ms Paula Cogan to the board of Cork Airport. My apologies, she was appointed to the board of the DAA but I wish she was appointed to the board of Cork Airport. I thank the Minister of State for appointing Ms Cogan to the board of the DAA for a number of reasons, some of which are related to the points made by Senator Craughwell. First, the appointment of Ms Cogan brings a person of significant status to the board. Second, her knowledge and understanding of the tourism sector, the aviation industry and the strategic importance of Cork Airport to that industry cannot be overstated. It is significant. Ms Cogan comes with a wealth of corporate experience and is also the former president of the Cork Chamber of Commerce. Her appointment by the Minister of State is an enlightened one. I do not want be patronising but it is a wonderful appointment for Cork because Ms Cogan will bring to the board of the DAA not just a Cork perspective, a business perspective or a woman's perspective but a brilliant perspective that will enhance the operation of the DAA. I thank the Minister of State for Ms Cogan's appointment because we have a real need to understand the aviation sector.

To be fair to the Minister of State, she was very proactive during the summer on aviation-related issues. We have significant challenges, not least with Aer Lingus. I know I am digressing and I will not digress further but will return to that matter later. We have huge issues with Aer Lingus in how it is behaving towards the people of Ireland and, in particular, the people who use Cork Airport.

I stand primarily to say that I am concerned about the loss of corporate experience and wisdom while also rejoicing in the appointment of Ms Cogan to the board of the DAA.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I was sitting here with a smile on my face while listening to my colleague for the last few minutes because we finally have a Cork person on the board of the DAA. Not everybody in the country knows that the DAA also manages Cork Airport, which has been the left-out-of-the-room cousin for a very long time. I very much welcome the appointment of Ms Cogan to the board and thank the Minister of State for that.

Regarding the Minister of State's response to the questions I asked earlier, when will the Public Appointments Service, PAS, recruitment campaign begin, how long it will go on for and from where will the interim CEO-designate be appointed? Will it be, as was the case with the DAA, a staff member from within the IAA? Given that Mr. Ó Conghaile's is not the only resignation from the IAA or the only loss of a senior member of the authority and given the disillusionment among staff at the loss of our most senior investigator, is the Minister of State worried about the resignations that have occurred in the last couple of months? What plans does she have to address these issues so that nobody else leaves the IAA?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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On Senator Craughwell's amendment, the 1993 Act specifies a term of up to seven years for the chief executive of the IAA and this Bill mirrors that. In terms of the complexity around a stand-alone aviation regulator and what is envisaged here, having that window of up to seven years would be important given the importance of the role and the restructuring, which is what this Bill is all about. Again, the term does not exceed seven years which is important to state.

In response to Senator Doherty's questions, the PAS process will begin shortly. There will be an advertisement on the PAS portal and an executive search as well. There are two processes under way to recruit a replacement for the CEO and it will be up to the board to put in place an interim CEO as that process gets under way. I acknowledge the importance of having somebody with great experience to come into this role. I thank Mr. Diarmuid Ó Conghaile for his service. He is a person of great experience and professionalism and Oireachtas Members would have seen that at meetings they had with him over the past 12 months. He has huge expertise behind him and I would like to thank him for the work that he has put into this so far. Senators can be assured that my absolute priority is to get a very capable replacement for him, which is why we are running an open competition. We want somebody who can bring the IAA through this transition and onto a new phase, in line with best practice across the EU.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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To go back, we are talking about employing a chief executive officer for the Irish Aviation Authority. We do not have anybody in the Department who has aviation expertise to assist in the short-listing of any curriculum vitae that might arrive in applications for the job. We do not have anybody on the State appointments commission that I am aware of who is an aviator who can attest to or test the qualifications of those coming before an interview board.

Can the Minister of State tell me if the Department is going to employ an aviation expert? Are we going to constantly deal with contracted-in people who really have no responsibility to the State at the end of the day? Responsibility lies within the Department. I have a huge concern that we are working our way through this Bill safe in the knowledge that there is no aviation expertise available independent of the IAA that I am aware of. We are putting through legislation for the IAA and its staff seem to be the people who are advising on it. For me, it is flawed the whole way through. I understand that the legislation has been handed to the Minister of State and she has been told to work it through the House, but there is a long-term responsibility.

There is a standing Air Accident Investigation Unit report and it looks to me that the recommendations of that report are just being cast aside and we will continue on the way things were. Four people are dead.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I gently draw the Senator back to the amendment.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Four people are dead and there is no aviation expert. We are now talking about appointing a new CEO to the IAA who will be responsible for regulation. I have difficulty with the way things are going. Will there be an aviation expert available to the Department - an employee of the Department, paying PAYE, PRSI, pension contributions and so on - to attest to and short-list any applications that come forward?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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That is a specific question to the Minister of State. If we took that, maybe we could put the question soon.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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As I have stated in previous addresses to the Seanad around the expertise, and as Members know, the IAA has extensive and highly regarded technical expertise as it operates as part of the executive framework, but with an obligation to decide on matters within its own remit, and it works on an independent basis. A different approach may be appropriate where it is necessary to have expertise to assess the conduct of the functions of the IAA. The normal approach, for example, to the preparation of draft legislation is that proposals are drawn up by Department officials with responsibility for policy. The Department officials are expert, having built their expertise through their career experience and skills development in public administration, and the acquisition of subject-specific knowledge. Policy decisions are made by Ministers on the advice of officials.

Almost invariably, proposals for legislation are subject to a consultation process. We have had huge consultation in regard to this legislation, giving rise to inputs from stakeholders and interested parties that fall to be considered by officials in the first instance and, where appropriate, by Ministers. Additional expertise was contracted to advise on the provisions in respect of this Bill for search and rescue. As Members know, the Bill was drafted by the Office of the Parliamentary Counsel to the Government.

To reiterate, this Bill is principally about reforming structures to separate regulatory and commercial functions, rather than recreating the regulatory framework for aviation. The vast majority of aviation regulation derives from the European Union Aviation Safety Agency, EASA, and International Civil Aviation Organisation, ICAO, regulations. As Members know, I have also consulted with the Attorney General on the issues raised by Senators.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I think we have really covered the ground.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I need to ask a question. I understand what the Minister of State says when she talks to us all the time about the expertise that is available in the IAA. Two things have come together rather unfortunately in the middle of this Bill; one is my amendment and the other is the impending departure of the CEO of the IAA. Surely to God the IAA experts cannot advise the Department on the short-listing of the next CEO, which means it goes to a contractor to provide that because it does not have any other expertise. Are we really going to hand responsibility over to some contractor to appoint the next CEO, or to advise the Department on the next CEO that the Minister, Deputy Eamon Ryan, will appoint? It does not sound right, if the Minister of State gets my drift. I would much rather that we had an employee who was there and who the Minister could trust, and who-----

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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With great respect, the Senator has made the point twice.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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It is really important.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I know and you have made it clear.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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The Minister of State has never explained to me when they are going to have an expert within their own staff.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Can we have an addressing of that specific issue? Otherwise, we will be here in circular form all day.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I have already replied to the expertise issue. It is important to get the message out there that it is open to anyone to apply for this position. It is an open competition. They will be running a recruitment campaign for a replacement CEO. There will be two processes, one through the Public Appointments Service and there will also be an executive search company in place to support the recruitment campaign. That allows the best opportunity for those who feel they are most qualified to apply. It is important to state that.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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We are not going to have a total marriage of minds here, so the Senator has the option of having a vote.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I think it is important to put it on the record.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I appreciate that.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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It is important. The Minister of State has pointed out that the Public Appointments Service will make the appointment aided and abetted by a contractor, an executive search company.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Senator has expressed his reasonable disagreement with that and we are not going to reach a consensus.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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On a point of clarification, as I might have not have heard properly, the Minister of State said it is the board that is going to appoint the interim CEO. Is that correct?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Will the Minister of State clarify that?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Yes, the board will appoint the interim CEO designate.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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In the interim. Thank you. That is clear.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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We are having a process. It will go through the procedure.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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We are all clear. We are not totally in agreement, which is reasonable and will not alter.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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It is clear as mud.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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It is very transparent.

Amendment put:

The Committee divided: Tá, 5; Níl, 26.



Tellers: Tá, Senators Gerard P. Craughwell and Sharon Keogan; Níl, Senators Seán Kyne and Robbie Gallagher.

Amendment declared lost.

Section 68 agreed to.

Section 69 agreed to.

NEW SECTION

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendment No. 3iais in the name of Senator Dooley and is deemed out of order as a potential charge on the Revenue.

Amendment No. 3ianot moved.

SECTION 70

Question proposed: "That section 70 stand part of the Bill."

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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We have had correspondence from the retired members of the IAA Retired Persons Association. In fairness to them, they have asked us to speak to the section given their concerns. The Minister of State might provide some clarity for them because, in fairness to her, she deserves to have her piece heard because we have heard one side from the retired members. I know that the Leas-Chathaoirleach has said that the amendment is out or order because it is a charge on the Exchequer. However, the retired members refer back to the 1993 Act and the whole issue of the transfer so I hope that we can get clarity on that.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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The amendment has been ruled out of order so I shall speak to the section. To be honest, when I read the Bill I did not see the anomaly that the retired members have shared with us. I cannot understand for the life of me why we would take people's benefits that they have accrued over a lifetime of service. In addition, just because we are organising or re-organising to make this Bill more efficient it seems that we would interrupt those benefits and put people on a lesser scale. Why and what is the logic for doing so? Is there any movement so that we can assure that the people who have served the State in the Department of Transport for many years do not get maligned by what potentially is happening in the Bill that I did not see before today?

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Legislation that was brought in after the financial crisis, which was understandable in some ways, made a lot of changes to how superannuation works so there are people now paying into superannuation who cannot benefit from same. I ask the Minister of State to bring this matter back to her colleagues in the Department of Finance and the Department of Public Expenditure and Reform because I do not expect her to do anything about it here.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Perhaps the Minister of State would respond to the observations alone.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I thank the Senators for giving me the opportunity to respond to this matter.

As is established practice in State agency restructurings, transfers or mergers, the pension provision currently being experienced by employees should not be impacted. Employees should be no better nor no worse off under the new arrangements. The Bill provides safeguards regarding this and ensuring this has been a key objective for my Department.

It is currently the case that the IAA may grant pension increases from time to time following authorisation from the Minister for Transport, and the Minister for Public Expenditure and Reform. However, any such increases are discretionary in nature. Decisions around providing such discretionary pension increases are based on the IAA having sufficient funds being available.

There are other important considerations when examining pension increases, namely, the affordability and sustainability of the increase, and the impact that such an increase may have on funds of the pension scheme itself. Additional considerations on providing for a pension increase also include the solvency of the scheme, scheme rules, the risk profile of the scheme and, as referenced earlier, the ability of the original employer to meet financial obligations arising from pension increases should the need arise.

On a regular basis the scheme actuary must certify that the scheme meets the minimum funding standards. This tests whether or not the scheme holds sufficient assets to meet accrued benefits if it were to wind up on the valuation date. Pension increases on a non-discretionary nature, as proposed in this amendment, would significantly increase the risk of a scheme failing the minimum funding standard. Such failure would require that the funding proposal is put in place under the Pensions Act 1990. A funding proposal could result in a combination of increased member contributions, increased employer contributions and-or benefit reductions to move the scheme back on track.

To be clear, section 114(2) of the Bill does not expressly provide for pension increases to Commission for Aviation Regulation, CAR, staff. What section 114(2) of the Bill does is make it clear that any existing terms that allow for discretionary increases survive restructuring. This amendment, which appears to have no precedent across the commercial semi-State sector, would see a cohort of employees becoming better off due to changed terms and conditions following the establishment of AirNav Ireland and the reconstituted IAA. The amendment runs counter to the long-standing established practice in terms of superannuation and State agency restructurings, and could carry increased risk of a scheme failing the minimum funding standard with the commitment implications, as outlined. As such I cannot accept amendment 3ia.

I wish to state that there are currently 443 pensioners who are beneficiaries of the plan. The company has requested more detail from its actuarial advisers on the matter of increases to pensioners, which will inform decision-making under the process being chaired by Mr. Kieran Mulvey. As Senators will know, Mr. Mulvey has been appointed to carry out a pensions review.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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We can only have one contribution per Senator on the section. Given the ingenuity of Senators I am sure that they will find a way to bring the point up again under another section.

Question put and agreed to.

SECTION 71

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 3j, 3k, 7aand 7bare related and may be discussed together by agreement. Is that agreed by the House? Agreed.

Government amendment No. 3j:

In page 48, line 1, after “Annexes” to insert “(or any part thereof)”.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I shall speak to the amendments. The Schedule to the Irish Aviation Authority Act 1993 sets out the annexes to the Chicago convention on civil aviation for which the IAA has functional responsibility.This group of amendments, or technical amendments, are to provide clarity regarding the functional responsibility of the IAA in respect of annexes 12 and 16. Annexe 12 of the Chicago convention concerns the establishment, maintenance and operation of certain rescue services by ICAO contracting states. Annexe 16 of the Chicago convention concerns environmental protection measures undertaken by ICAO contracting states. The Schedule to the Irish Aviation Authority Act 1993 sets out the annexes to the Chicago convention on civil aviation for which the IAA has functional responsibility.

Amendments Nos. 3jand 3kamend section 71 of the Bill and, thus, section 78 of the Irish Aviation Authority Act 1993 to clarify that the Minister may, by order, assign functional responsibility for part of an annexe to the Chicago convention to the IAA. Amendment No. 7aamends Schedule 2 to the Bill and, consequently, the Schedule to the Irish Aviation Authority Act 1993 to make it clear that the IAA has functional responsibility for the rescue co-ordination centres and rescue sub-centres aspects of annexe 12 to the convention. In essence, this restates the position originally provided for by SI 171 of 1995 and SI 172 of 1995. Related to this, I intend to bring forward an amendment on Report Stage to amend section 14 to assign an additional objective to AirNav Ireland to make it clear that it has the viresto provide aeronautical rescue co-ordination for search and rescue services.

Amendment No. 7bamends Schedule 2 to the Bill and, consequently, the Schedule to the Irish Aviation Authority Act 1993 to provide that the IAA has functional responsibility for all aspects of annexe 16 which concern environmental protection measures, with the exception of volume 4 which addresses the carbon offsetting and reduction scheme for international aviation, CORSIA, which will remain with the Minister. Relevant national agencies, including the EPA, engage with my Department in respect of Ireland meeting its obligations under volume 4.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I want to check something with the Minister of State. Are amendments Nos. 7aand 7bbeing brought in as a result of the air accident investigation unit report which stated that the IAA was uncertain as to its role with respect to SAR?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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No, that is not the case.

Amendment agreed to.

Government amendment No. 3k:

Amendment agreed to.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 3l:

In page 48, between lines 14 and 15, to insert the following: “(4) (a) An annual audit shall be conducted by the IAA of Ireland’s compliance with ICAO Standards and Recommended Practices.

(b) The audit shall identify those ICAO standards that Ireland does not comply with. Where non-compliance with an ICAO standard is identified the audit will identify the reason for non-compliance and report on whether a difference to the standard has been notified to ICAO and if not when a difference will be filed.

(c) The audit shall also identify those cases where Ireland is not in compliance with ICAO Recommended Practices, the reason for the non-acceptance of an ICAO Recommended Practice, and whether and when Ireland will adhere to the ICAO Recommended Practice.

(d) The ICAO Compliance Audit for any year will be presented to the Minister and published by the IAA within the first three months of the immediately following year.”.

This amendment proposes that there be an audit trail. The amendment would insert a new section to deal with the IAA's oversight of compliance with ICAO rules. From that point of view, it would leave us in a situation whereby we would have an annual report. If there are deficiencies vis-à-viswhat is required of the ICAO, then those deficiencies would be highlighted and identified, and remedial action could be taken immediately in order to put things right. From that point of view, it would strengthen the Bill and make for good accounting and reporting. I ask the Minister of State to consider accepting the amendment.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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In the absence of accepting the amendment which, I assume, the Minister of State, will not, what is the principle of ensuring that the new authority will be compliant not just with the ICAO regulations but also EASA regulations? What open and transparent method will the Minister of State or the IAA employ other than an annual review which we have been told we will get every three years?

I do not wish to hark back to previous debates, but the report into Rescue 116 took a significant number of years. Unfortunately, a significant number of years later agencies and Departments have not complied with its recommendations of the long-awaited report,. That does not instill much confidence that the new agency that is fundamentally responsible for every aspect of air navigation safety will report in an open and transparent way without this amendment. Can the Minister of State reassure us that we have another mechanism whereby we can, on an annual, or much more frequent basis, get reports?

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I refer to what Senator Doherty said. I reported earlier in the year that there were about 44 recommendations from the AAIU that were outstanding and there was no answer whatsoever as to what had happened. This is precisely what Senator Doherty is talking about, that is, reporting mechanisms.

After I spoke about the fact that these matters were all open with the AAIU report, within a very short time they were all suddenly closed. However, they were closed in an unsatisfactory way. It is very clear that in one or two cases - I cannot remember them off the top of my head right now - the IAA and the AAIU had accepted that steps had been taken but those steps were not consistent with what was required as a result of the AAIU report.

This is why the reporting mechanism is important and we have to be able to go back to look at audits and satisfy ourselves that things that were recommended and omissions and problems identified are actioned rapidly and not just closed off for the sake of doing so. From that point of view, I ask the Minister of State to accept this amendment. We could get on really well if we got one or two amendments through.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Ireland enjoys a strong position on the ICAO league table for the effective implementation of global aviation standards, which place Ireland in eighth position in the world ranking of 193 states and in second position among EU member states. Ireland's compliance with ICAO standards and recommended practices is subject to audit by the ICAO under its universal safety oversight audit programme.

In 2013, the ICAO refocused its audit problem to a continuous monitoring approach to states' safety oversight systems. This continuous monitoring approach includes compliance checklists for standards and recommendations practices, SARPs, for all 19 ICAO annexes. There are currently over 12,200 SARPs, which include the facility for the filing of differences by states through a web-based platform known as the online framework, OLF. The IAA and the Department of Transport are responsible for updating the relevant annexes on the OLF, in accordance with the respective responsibilities assigned to them under the Schedule to the Irish Aviation Authority Act 1993.

Ireland's responses to ICAO's SARPs are subject to EU co-ordination. This means that we must await a co-ordinated response to be developed and agreed at an EU level prior to submitting to the OLF. The ICAO SARPs also need to be transposed into the regulatory framework. In the vast majority of cases, this means the EU regulatory framework. This is part of the European Union aviation safety agency, EASA, rule making programme. EASA provides pre-filled ICAO compliance checklists to each member state to assess the status of the EASA regulations against the latest ICAO annexe amendments.

The compliance checklists are subject to continuous monitoring by the ICAO. As the ICAO annexe amendments and the EU regulatory framework are continuously evolving, the information in the continuous monitoring approach system is always in a state of transition. An annual audit report of this activity would represent a snapshot in time and the associated information may be quickly out of date. It should be noted that section 67 of the Bill requires the IAA to prepare and submit to the Minister by 30 April each year a safety aviation performance statement. Section 67(3) requires that a statement to include details of the activities carried out during the relevant year and the outcome and follow-up from external oversight in regard to the universal safety oversight audit programme of the ICAO be provided. Section 67(5) requires the Minister to lay the performance statement before the Houses of the Oireachtas within one month of receipt from the IAA.Given these existing mechanisms, I do not propose to accept amendment No. 3l.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I am rather shocked to hear that we rate so highly, given the report into Rescue 116, which was an appalling series of oversight failures and failures of everything one could possibility think of. There was recklessness on all parts. Very recently, I saw a tweet from the operator talking about leadership in safety and aviation. Leadership? Four people lost their lives. Let us not forget that. That is what this is about. It may be a snapshot in time, but it is about having those snapshots in time. It is about regular reporting that can be addressed at any given time so that remedial action can take place. We do not need to go back to a situation where there is confusion as to who is responsible for what. Again, I ask the Minister of State to accept the amendment.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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In an attempt to help my colleague, because he referenced the recommendations of a report into an accident that happened in March 2017, the two recommendations that I think he is speaking about are Nos. 2021029 and 2021031.

The accident happened in 2017 and here we are in September 2022. Both of those recommendations, which were incredibly serious and related specifically to the Department of Transport, are in the process of implementation. I do not think that puts us in the eighth position in the world at all. I certainly do not think it is something to be happy about.

While I take on board what the Minister of State said about a snapshot, the frequency of transparent reports, rather than being out of date minutes or weeks after they are issued, would show a work in progress or, unfortunately, when we look at our record, a lack of progress. Given our ambitions for safety in air transport and navigation in this country, we certainly should be far more ambitious, open and transparent than we have been to date.

While I appreciate that the Minister of State will not accept the amendment, I ask her for better assurances than what she has put on the record of this House, that in a piecemeal way we report back to International Civil Aviation Organisation, ICAO. That does not gives us any transparency or show any progress to the recommendations for improvements in the industry.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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To reiterate, Ireland’s compliance with ICAO is subject to continual monitoring approaches and oversight systems. They are in place. This is a continuous process, as I said. In addition, as part of this Bill, there will be a requirement for the Irish Aviation Authority, IAA, to prepare and submit to the Minister, by 30 April every year, a safety aviation performance statement. Section 67(3) requires that statement to include details of the activities carried out during the relevant year and the outcome and follow-up from external oversight in that universal safety oversight audit programme of ICAO. There are assurances there on ensuring oversight is in place.

They are the positions; they are the facts about Ireland’s position on the ICAO league table. The importance of this Bill, yet again, is to ensure that we continue to maintain and strive to improve our standards. That is why it is so important that we progress with this Bill, which is seen as best practice.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I am sure that the compliance with ICAO was there back in 2017. I am sure that ICAO was having a look over our shoulder or was it? If it was and we were so compliant, how the hell did we finish up in a situation where an operator was acting recklessly with its crews, a Department had no means of overseeing what was going on and the Irish Coast Guard, which was directly involved, was not observing what was going on? I find it very hard to accept that the ICAO was very happy with Ireland. It surely cannot have been happy with Ireland back in 2017.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Just to clarify, is that in relation to the air accident investigation report?

Photo of Gerard CraughwellGerard Craughwell (Independent)
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It is in relation to the operation of the entire SAR system in that period of time.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I apologise. Can the Senator repeat his question? I need to-----

Photo of Mark DalyMark Daly (Fianna Fail)
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Can the Senator clarify his question to the Minister of State?

Photo of Gerard CraughwellGerard Craughwell (Independent)
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The air accident investigation report showed there was very poor oversight and reckless behaviour. Where does ICAO fit into that if it is keeping on an eye on us and we are so compliant with ICAO rules? How did we finish up where we were? How did we finish up where the IAA was confused as to its role with respect to the monitoring and control of the search and rescue? How did we finish up with a situation where crews were reporting problems and the problems were ignored? Safety issues were being ignored. The Coast Guard had no oversight whatsoever of the contractor that was working for it. The Department of Transport had no oversight of what was going on. This is why the Air Accident Investigation Unit, AAIU, recommended that the Government bring on board aviation expertise in both organisations. We have not done that.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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First, just to clarify, we have oversight by ICAO and the European Union Aviation Safety Agency, EASA, and obviously we want to continuously improve. The IAA has accepted all of the recommendations of the air accident investigation report. It is important to reiterate that. I said this previously in this House.

We all have the same goal, which is ensuring that we have best practice and best oversight. We have EASA carrying out that oversight, as well as ICAO. I wish to reassure Senators that oversight is there. This is a constant, continuous monitoring compliance process. There are continuous checks and a checklist for standards and recommendation practices. It is part of EASA - the EASA rulemaking programme. EASA also provides pre-filled ICAO compliance checklists to each member state to address the status of EASA regulations against the latest ICAO annex amendments. In addition, there is the section 32 review that I spoke about earlier. It will be laid before the Houses of the Oireachtas and be presented to the Minister.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I disagree with the Minister of State’s statement regarding the recommendations of the AAIU having all been taken on board by the Department and the relevant agencies. The two recommendations that highlighted the serious impact of the lack of expertise in the Department of Transport, recommendations Nos. 2021029 and 2021031 have not been complied with by the Department of Transport. They highlighted that there was no expertise on the books in the employment at the disposal of the Minister, whoever that Minister happened to be. That was not true in 2017 and it certainly is not true today. In her responses, the Minister of State stated that both recommendations are in the process of being implemented and she will continue to contract aviation expertise as and when she needs it. I just want to put on the record that is not compliant with the two recommendations that were made.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I understand the Minister of State’s bona fides. However, in our wildest imagination, we cannot possibly say that we were compliant with anything leading up to the crash of Rescue 116. The air accident investigation report is damning of the operator, the Coast Guard, the IAA and the Minister of State’s Department. As my colleague just pointed out, two of the recommendations that were made about aviation expertise have gone totally and utterly disregarded. I have said this time and time again as we progressed through this Bill - you can contract out risk if you want, but you cannot contract out responsibility, and the Minister of State’s Department is responsible.

I would love somebody from ICAO to come in here this evening and tell me that they were very happy with everything up to 2017 in aviation in Ireland. If they were, they are as bad as the people who were damned in the AAIU report. This is not the Minister of State’s fault as she was not in office at that time. She should not try to defend it, because she was not in office. She was not there. The bottom line on it is that the report stands for everybody to read and it is damning.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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Just to clarify, as I said at a previous hearing in the Seanad, the Department has committed also to reviewing the issue of expertise in the Department. I just want to reiterate that point.I again state that all the recommendations have been accepted by the Department and are being acted on and being progressed.

If the Cathaoirleach permits me, I wish to clarify from earlier in regard to the pass process and the executive search process for the chief executive of the IAA, they are one and the same process.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Just one final point-----

Photo of Mark DalyMark Daly (Fianna Fail)
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I call Senator Doherty.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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This is my final point. The statement the Minister of State just made does not give me any confidence that any of the commitments given on transparency and reporting with regard to the other amendments we have just disposed with will give us any real reporting transparency when this Bill is passed. It is an absolute untruth to say that the two recommendations have been taken on board because they have not been complied with. I do not know what part of accepting a recommendation is true when the Minister of State has not complied with the recommendation nor taken care of what she was asked to do.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Those are only two of the recommendations, there is another also which I cannot recall off the top of my head that is closed but not completed. I do not know how the Minister of State does that. There are four families out there who have lost loved ones. Are we trying to tell them that there was a recommendation from the AAIU and we are considering it?

In the case of any air accident investigation report anywhere in the world – they are featured on Sky TV every night of the week – recommendations are implemented within weeks. This is 2022 and the recommendations date from 2017, they were known to the Department very shortly after the crash, notwithstanding the fact that much of this had to go through a legal process. We still do not have aviation expertise.

It is a very simple thing. We are employing a CEO of the IAA. We can advertise the post straight away. Why have we not advertised for aviation expertise in both the Department of Transport and the Irish Coast Guard? Better still why have we not seconded in somebody from the Irish Air Corps, people are available, into both Departments, or pilots from Aer Lingus or wherever? Why have we not done that? I cannot imagine what the families of those who lost loved ones think when they see how we disregarded key elements of the AAIU report.

Photo of Mark DalyMark Daly (Fianna Fail)
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Does the Minister of State wish to speak?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I have spoken to it.

Amendment put:

The Committee divided: Tá, 8; Níl, 26.



Tellers: Tá, Senators Gerard P. Craughwell and Sharon Keogan; Níl, Senators Seán Kyne and Robbie Gallagher.

Amendment declared lost.

Section 71, as amended, agreed to

Sections 72 and 73 agreed to.

SECTION 74

Photo of Mark DalyMark Daly (Fianna Fail)
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Amendments Nos. 4, 5 and 10 are related. Amendments Nos. 5 and 10 are consequential to amendment No. 4. Amendment No. 10 is consequential to amendment No. 5. Amendments Nos. 4, 5 and 10 may be discussed together by agreement. Is that agreed? Agreed.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I move amendment No. 4:

On page 53, line 35, to delete "aircraft."." and substitute the following:
"aircraft.
63G.(1) For the purposes of ensuring compliance with air carrier operating licence obligations (which is deemed for these purposes to include an air operator certificate) and compliance with any other obligation of any air carrier, the Irish Aviation Authority may cause such investigation as it thinks fit to be carried out.

(2) The Irish Aviation Authority may, for the purposes of subsection (1), direct one or more authorised officers—
(a) to carry out the investigation, and

(b) to submit to the Irish Aviation Authority an investigation report following the completion of the investigation.
(3) The Irish Aviation Authority may define the scope and terms of the investigation to be carried out, whether as respects the matters or the period to which it is to extend or otherwise, and may, in particular, limit the investigation to matters connected with particular circumstances.

(4) Where more than one authorised officer has been directed to carry out an investigation, the investigation report shall be prepared jointly by the authorised officers so directed and this section and sections 63H to 63J shall, with all necessary modifications, be construed accordingly. The Irish Aviation Authority may designate one authorised officer as the principal investigator. Any reference to an officer is a reference to one or more officers as authorised.

(5) As soon as is practicable after being appointed to carry out an investigation, the authorised officer shall—
(a) give the air carrier concerned notice in writing—
(i) where the examination concerned is being carried out in respect of a complaint, setting out the particulars of the complaint concerned, or

(ii) where the examination is being carried out of the Irish Aviation Authority’s own volition, setting out the matters to which the investigation relates,
and

(b) afford to the air carrier an opportunity to respond to the notice under paragraph (a) within 7 days from the date on which the notice was given (or such further period not exceeding 28 days as the authorised officer allows).
63H.(1) An authorised officer who has been directed under section 63G(2) to carry out an investigation may, for the purposes of the investigation—
(a) require a person, being an air carrier, or an employee or agent of such an air carrier, who, in the authorised officer’s opinion—
(i) possesses information that is relevant to the investigation, or

(ii) has any record or document within the person’s possession or control or within the person’s procurement that are relevant to the investigation, to provide that record or document, as the case may be, to the authorised officer, and
(b) where the authorised officer thinks fit, require that person to attend before him or her for the purpose of so providing that information, record or document, as the case may be, and the person shall comply with the requirement.
(2) A requirement under subsection (1) shall specify—
(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and

(b) as the authorised officer concerned thinks fit—
(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the record or document concerned, or

(ii) the place to which the person shall send the information, record or document concerned.
(3) A person required to attend before an authorised officer under subsection (2)—
(a) is also required to answer fully and truthfully any question put by the authorised officer, and

(b) if so required by the authorised officer, shall answer any such question under oath.
(4) Where it appears to an authorised officer that a person has failed or is failing to comply or fully comply with a requirement under subsection (2) or (3), the authorised officer may, on notice to the person and with the consent of the Irish Aviation Authority, apply in a summary manner to the Circuit Court for an order under subsection (5).

(5) The Circuit Court, on hearing an application under subsection (4), where satisfied that the person concerned has failed or is failing to comply or fully comply with the requirement concerned, may—
(a) make an order requiring the person, within such period as the Court may specify, to comply or fully comply, as the case may be, with the requirement, or

(b) substitute a different requirement for the requirement concerned.
(6) The administration of an oath referred to in subsection (3)(b) by an authorised officer is hereby authorised.

(7) A person the subject of a requirement under subsection (1) or (3) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.

(8) Any statement or admission made by a person pursuant to a requirement under subsection (1) or (3) shall not be admissible in evidence in proceedings for an offence (other than an offence under subsection (12)) brought against the person, and this shall be explained to the person in ordinary language by the authorised officer concerned.

(9) Nothing in this section shall be taken to compel the production by any person of statements, records or other documents or other information which would be exempt from production in proceedings in a court on the ground of legal professional privilege.

(10) For the purposes of an investigation, an authorised officer may, if he or she thinks it proper to do so, of his or her own volition conduct an oral hearing.

(11) Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (10).

(12) Subject to subsection (9), a person who—
(a) withholds, destroys, conceals or refuses to provide any information or statements, records or other documents required for the purposes of an investigation,

(b) fails or refuses to comply with any requirement of an authorised officer under this section,

(c) in purported compliance with a requirement under this section, gives to an authorised officer information, documents or records which the person knows to be false or misleading in a material respect, or

(d) otherwise obstructs or hinders an authorised officer in the performance of functions under this Act, shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both.
(13) In this section, a reference to a document or record includes a reference to copies of such document or record.

(14) The powers conferred under this section on an authorised officer to whom subsection (1) applies are in addition to the powers conferred on such an authorised officer under section 63C. 63I.(1) Where an authorised officer has completed an investigation, he or she shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation— (a) any information, records or other documents provided to him or her,

(b) any statement or admission made by any person,

(c) any submissions made, and

(d) any evidence presented (whether at an oral hearing or otherwise), prepare a draft, in writing, of the investigation report (‘draft investigation report’) and give, or cause to be given, to the air carrier to which the investigation relates—
(i) a copy of the draft investigation report, and

(ii) a notice in writing stating that the air carrier concerned may, not later than 28 days from the date on which the notice was served on it (or such further period not exceeding 28 days as the authorised officer allows), make submissions in writing to the authorised officer on the content of the draft investigation report.
(2) An authorised officer shall— (a) as soon as is practicable after the expiration of the period referred to in subsection (1)(ii), and

(b) having—
(i) considered the submissions (if any) made in accordance with subsection (1)(ii), and

(ii) made any revisions to the draft investigation report which, in the opinion of the authorised officer, are warranted following such consideration,

prepare the investigation report and submit it to the Irish Aviation Authority with any such submissions annexed to it.
(3) An investigation report and a draft investigation report under this section shall be in writing and shall state— (a) whether the authorised officer—
(i) is satisfied that an infringement of a relevant provision or, as the case may be, a relevant obligation of the air carrier to which the investigation relates has occurred or is occurring, or

(ii) is not so satisfied,
(b) where paragraph (a)(i) applies, the grounds on which the authorised officer is so satisfied, and

(c) where paragraph (a)(ii) applies—
(i) the basis on which the authorised officer is not so satisfied, and

(ii) the authorised officer’s opinion, in view of such basis, on whether or not a further investigation of the air carrier is warranted and, if warranted, the authorised officer’s opinion on the principal matters to which the further investigation should relate.
Irish Aviation Authority to consider investigation report

63J.(1) The Irish Aviation Authority on receipt under section 63I(2) of an investigation report, shall, for the purposes of the inquiry concerned, consider the report and any submissions annexed to it.

(2) Where the Irish Aviation Authority, in considering the documents referred to in subsection (1), forms the view that further information is required for the purpose of enabling it to make a decision as to the existence of an infringement, it may, as it considers appropriate, do one or more of the following: (a) conduct an oral hearing;

(b) give the air carrier to which the investigation concerned relates—
(i) a copy of the investigation report, and

(ii) a notice in writing stating that the air carrier, within 21 days from the date on which the notice was served on it (or such further period not exceeding 21 days as the Irish Aviation Authority allows), make submissions in writing to the Irish Aviation Authority in relation to such matters as the Irish Aviation Authority may specify in the notice;

or
(c) direct an authorised officer to conduct such further investigation into such matters as the Irish Aviation Authority considers necessary having regard to the investigation report and submissions (if any) annexed to it. (3) Schedule 2 shall, with any necessary modification, have effect for the purposes of an oral hearing referred to in subsection (2)(a).

(4) Sections 63H and 63I and this section shall apply to a further investigation conducted in compliance with a direction under subsection (2)(c), as if the reference to an authorised officer in those sections was a reference to an authorised officer directed under subsection (2)(c) to conduct the further investigation.

Power of the Irish Aviation Authority to decide to impose administrative fine

63K.(1) The Irish Aviation Authority, in considering— (a) whether to make a decision to impose an administrative fine, and

(b) where applicable, the amount of such a fine, shall act in accordance with this section. (2) Where the Irish Aviation Authority has considered a report and any submissions in accordance with section 63J(1) and, as applicable, having regard to its exercise of any of its powers under section 63J(2) and the outcome thereof, it may decide to impose an administrative fine in respect of any violation by an air carrier of an applicable requirement.

(3) The maximum amount of a fine that may be imposed in respect of a violation is 10 per cent of the turnover of the air carrier in the most recent financial year for which audited accounts are available.

(4) In setting the amount of an administrative fine, the Irish Aviation Authority shall take into account the following— (a) the nature, gravity and duration of the infringement,

(b) whether it occurred negligently or intentionally,

(c) the degree to which the infringement endangered public safety,

(d) any relevant previous infringements by the air carrier, and

(e) the principle of proportionality. (5) The Irish Aviation Authority, as soon as practicable after— (a) a decision to impose an administrative fine is confirmed under section 63L(3)(a), or

(b) the court decides, under section 63L(3)(b), to impose a different fine, shall give the air carrier concerned a notice in writing, requiring the air carrier to pay the amount of the fine concerned to the Irish Aviation Authority within the period of 28 days commencing on the date of the notice. (6) An air carrier shall comply with a requirement referred to in subsection (5).

(7) All payments received by the Irish Aviation Authority under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(8) In this section and section 63L, a reference to a decision to impose an administrative fine shall be construed as a reference to a decision by the Irish Aviation Authority to impose such a fine.

Appeal against administrative fine

63L.(1) An air carrier that is the subject of a decision to impose an administrative fine may, within 28 days from the date on which notice of the decision concerned was given to it under section 63K(5) appeal to the court against the decision. (2) The court, on hearing an appeal under subsection (1), may consider any evidence adduced or argument made by the air carrier, whether or not already adduced or made to an authorised officer or the Irish Aviation Authority.

(3) Subject to subsections (4) and (5), the court may, on the hearing of an appeal under subsection (1)—
(a) confirm the decision the subject of the appeal,

(b) replace the decision with such other decision as the court considers just and appropriate, including a decision to impose a different fine or no fine, or

(c) annul the decision.
(4) The court shall, for the purposes of subsection (3), take into account the matters set out in section 63K(4).

(5) In this section, ‘court’ means—
(a) the Circuit Court, where the amount of the administrative fine the subject of the appeal does not exceed €75,000, or

(b) in any other case, the High Court.
Circuit Court to confirm decision to impose administrative fine

63M.(1) Where an air carrier does not appeal in accordance with 63L(1) against a decision by the Irish Aviation Authority to impose an administrative fine on the air carrier, the Irish Aviation Authority shall, as soon as is practicable after the expiration of the period referred to in that subsection, and on notice to the air carrier concerned, make an application in a summary manner to the Circuit Court for confirmation of the decision. (2) The Circuit Court shall, on the hearing of an application under subsection (1), confirm the decision the subject of the application unless the Court sees good reason not to do so.".".

Perhaps the Leader will have something to say while I search for my notes. I cannot find my notes.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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The Senator never needed notes before.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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There are so many pages of amendments that the Cathaoirleach will have to forgive me. I am lost.

Photo of Mark DalyMark Daly (Fianna Fail)
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You are grand. It is amendment No. 4 on section 74. It is page 6 on the yellow sheet.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I see it.

Photo of Mark DalyMark Daly (Fianna Fail)
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Amendments Nos. 4, 5 and 10 are related and they are all on the yellow sheets. Amendment. No. 5 is on page 13 and amendment No. 10 is on page 20.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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I have it. I am trying to get my head around it. I am sorry, there are so many amendments flying through that I am having difficulty catching up with this one.

Photo of Mark DalyMark Daly (Fianna Fail)
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Amendment No. 4 is to delete the word "aircraft" and then to make a substitution on page 53 at line 35. It is on page 6 of the yellow sheet.

Photo of Gerard CraughwellGerard Craughwell (Independent)
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Forgive me. I am totally caught.

Amendment No. 4 intends to delete the word "aircraft" and add new sections. This is for the purposes of ensuring compliance with the air carrier's operating licence obligations and compliance with any other obligation of any air carrier. The Irish Aviation Authority may cause investigations as it thinks fit to be carried out. We want to strengthen the hand of the Irish Aviation Authority in respect of oversight and investigations.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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It is a fundamental principle of any enforcement regime that sanctions must be effective and proportionate. The IAA has available to it graduated enforcement mechanisms to respond to the particular type of non-compliance it faces. Its enforcement mechanisms scale up from restriction of a licence, suspension of a licence and revocation of a licence to criminal sanctions, including summary prosecution and prosecution on indictment.It should be noted that the IAA has the ability to withhold part or all of a licence for failure to comply with regulatory requirements, and has done just that in the past. The withdrawal of particular parts of a licence in respect of instances of identified regulatory non-compliance relating to those parts of a licence is an effective and proportionate enforcement mechanism.

In general, administrative financial sanctions are more suited to economic regulatory roles than safety regulatory roles. In addition, administrative financial sanctions, as opposed to criminal sanctions, may not carry the associated reputational damage in the eyes of the public. In terms of speed of enforcement, a direct path to the courts is the most effective means of enforcement. An administrative fines system more often than not serves to delay enforcement because fines are issues and disputed, and then the fines themselves send up before the courts. As such, I cannot accept amendments Nos. 4, 5 and 10.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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Particularly with regard to amendment No. 10, could the Minister of State give me an explanation? The Opposition is trying to strengthen the reporting mechanism after investigation. The purpose of amendment No. 10 is to insert a new Schedule. It relates to oral hearings and the taking of evidence under oath, which has not happened before and would certainly give the IAA, particularly the investigative team, an enormous tool. It would strengthen their hand with regard to what we are trying to do, which is to ensure that airlines, all licence holders and any of the carriers, be they commercial or operating on behalf of the Government, relay all the information. The delivery of the information under both would make it far more serious and consequential. I am curious as to why the Minister of State would not want to give the IAA the powers in question.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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The three amendments – Nos. 4, 5 and 10 – are linked. In essence, we are trying to ensure a pyramid system in the approach. This entails an escalated form of enforcement. There are level 2 audit findings and then level 1 audit findings. An advisory letter is followed by a warning letter, the restriction of a licence, the suspension of a licence, the revocation of a licence and criminal sanctions, which would include summary prosecution and prosecution on indictment. What we are trying to do is ensure that the IAA has the tools in its armoury to ensure it can enforce safety regulations, ranging from restricting a licence to taking a prosecution in the courts.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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With respect, that does not answer my question. What is wrong with having oral hearings and taking the information under oath?

With regard to the pyramid, we are actually trying to strengthen the system we already have. The Minister of State knows from the reports that have been issued based on the penalties handed down by the current IAA to any of those in respect of whom there has been an infringement concerning their licences or activities have been tantamount to nothing more than a slap on the wrist. The licence holders, who are the people we are governing in addition to the airlines, are calling out for a better pyramid structure that starts with serious consequences. I am not talking about criminal sanctions. If we ever got to a scenario where these were needed, I would hope that there would be no stalling. We are tinkering around the edges here without actually having any real impact on the infringements that are happening week in, week out in our aviation industry. Given that we are changing the system – the Minister of State referred to revolutionary changes within the aviation sector – and changing the position on commercial operations and safety regulations, we are going to carry on with the same old, same old, with the same pyramid structure we have had, which entails a slap on the wrist and an ould letter to tell you that you did something wrong. However, there will be no financial or legal impacts and no infringement actions associated with one’s activities, be they commercial or those of a licence holder. What we are doing is creating a toothless system, except at the very top of the pyramid, which can entail taking somebody to court and closing an operation down. That has not happened in the history of aviation in this country and is not likely to happen in the near future.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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The IAA can restrict, suspend and revoke a licence, in full or in part, where there is a failure to comply with the regulatory requirements. It has done this. Also, the withdrawal of particular parts of a licence in respect of instances identified in the context of non-compliance relating to part of a licence is an effective and proportionate enforcement mechanism. It is important to state that administrative financial sanctions are more suited to economic regulatory roles. I can give examples of other Departments that have administrative financial sanctions. These examples relate to economic regulation, not safety regulation, as is the case in the Bill under discussion. Four examples of administrative financial sanctions in statute are section 10 of the Central Bank and Financial Services Act 2004; sections 52 to 56 of the Broadcasting Act 2009, which pertain to the Broadcasting Authority of Ireland; sections 5 and 6 of the Energy Act 2016, which concerns the Commission for the Regulation of Utilities; and sections 137 to 143 and Schedule 3 of the Data Protection Act 2018, which pertains to the Data Protection Commission. These all relate to economic regulations, not to safety regulatory roles.

Section 74 adds to the enforcement armoury of the IAA by providing for fixed-charge offences in respect of summary offences specified by the Minister after consultation with the Minister for Justice. This instrument is intended to assist the IAA in addressing the issue of the misuse of drones rather than the more compliant airlines sector.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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What about evidence under oath at oral hearings?

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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I cannot accept that amendment at this point because it is linked to the other amendments, but we can consider the oral hearings in advance of Report Stage.

Amendment put:

The Committee divided: Tá, 7; Níl, 22.



Tellers: Tá, Senators Gerard P. Craughwell and Sharon Keogan; Níl, Senators Seán Kyne and Robbie Gallagher.

Amendment declared lost.

Photo of Mark DalyMark Daly (Fianna Fail)
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As it is past 5.30 p.m., the debate must now adjourn in accordance with the order of the House today.

Progress reported; Committee to sit again.