Dublin Transport Authority Bill 2008 - Committee Stage Resumed - 13th May 2008

Dublin Transport Authority Bill 2008: Committee Stage (Resumed).
SECTION 40.
Debate resumed on amendment No. 37:

In page 34, subsection (1), line 17, to delete paragraph (a).

- (Senator David Norris).
An Leas-Chathaoirleach: I welcome the Minister for Transport. I congratulate him and wish him well on his reappointment.

Minister for Transport (Deputy Noel Dempsey): I thank the Leas-Chathaoirleach.

An Leas-Chathaoirleach: Amendments Nos. 37 to 41, inclusive, are being discussed together. Senator Norris was in possession.

Senator David Norris: I do not need to rehearse much of what I had to say on the previous day. This is a series of related amendments that deal with an issue a number of other colleagues have also raised, that is, the exclusion of elected Members of both Houses of the Oireachtas and also of local authorities from membership of the Dublin transport authority. A Member of European Parliament would, by definition, be unsuitable because he or she would be out of the country for long periods. I am not so sure about an outright ban on Members of the Oireachtas because we have a good, active transport committee. I think that to bar a member of that committee from the Dublin transport authority would be regrettable. Barring a person because he or she is a member of a local authority will diminish the possibility for democratic pressure and for people to have their say. As other Members pointed out, if we have an elected Lord Mayor he or she would be disbarred from participating in the Dublin transport authority. I always assumed that the point of having an elected mayor would be for the position to be along the lines of the elected mayoralty in London. Transport has been a key element in the policy mandate of the Mayor of London.
That is all I need to say and I look forward to the Minister’s response.

Senator John Ellis: The last time we debated this I raised the issue of the exclusion of local authority members because I feel it is wrong and we must do something to deal with it. It is very unfair that local authority members should be debarred; at least Oireachtas Members have the right to attend an Oireachtas committee and can raise questions when they do so. In this case even the Lord Mayor could be debarred and that is wrong. I appeal to the Minister to further examine this matter before Report Stage and, if possible, allow local authority members to be members of the board.

Senator David Norris: At least those in Dublin and surrounding counties.

Deputy Noel Dempsey: We have had this discussion already and I do not think we need delay further on it. I indicated last time, when this matter arose, that I am sympathetic to the view of Senators that local authority members should not be excluded from membership of the Dublin transport authority. As I said last week, nothing in section 14, which concerns membership of the authority, precludes the Minister for Transport from appointing a member of a local authority to the Dublin transport authority. I wish to emphasise this. In this section I do not wish to go down the route of naming individuals or classes of people who I think should or should not be a member of the authority. I wish only to use the generic description of people who have an interest, expertise or skill in this area.
In deference to the arguments made by Senators, including Senator Ellis and others, I am indicating my willingness to bring forward an amendment on Report Stage to remove the provisions in section 40 that have the effect of prohibiting a member of a local authority from serving as a member of the Dublin transport authority. As Senator Ellis said, I will retain the provisions relating to Members of the Oireachtas because we are elected to do a full-time job that is onerous enough. Senator Ellis pointed out that Oireachtas Members have the opportunity to appear before committees and I will not change the provisions relating to Oireachtas Members.
Senator Norris raised a point relating to the meaning of section 40(1)(a) and he is concerned that the distinction made may not be clear enough. I have asked the parliamentary draftsman to re-examine this and, if necessary, I will introduce an amendment on Report Stage. The initial view I was given is that this provision is just meant to distinguish between the Taoiseach’s nominees and elected Members of Seanad Éireann. I will see if it is necessary to make the distinction or if this could give rise to confusion. On this basis I ask the Senators to withdraw their amendments as they can be discussed further on Report Stage, if necessary.

Senator Brendan Ryan: In our previous discussions on Committee Stage we agreed that further substantive debate could take place today, under this section, on the issue raised in amendment No. 21, which I tabled. It was felt that the areas were related, in terms of the membership of local authority members.
Given the Minister’s comments today on not excluding members of the board of the Dublin transport authority who subsequently become local authority members, could he agree to having a local authority member on the board by right? This was the thrust of amendment No. 21, which I agreed to withdraw last week on the basis that we would have further discussion on it. I intend to press this amendment on Report Stage.

Senator David Norris: I will not delay the House but I am glad the Minister referred to our previous discussion on Committee Stage on section 40(1)(a). We are invited to hand in our nominations. This may only directly affect the six university seats in the Seanad but we are invited by the provost to hand in our nominations. This means we are nominated and even a person who fails to gain a seat in the House would be automatically ruled out.
I welcome the fact that the Minister is again examining the question of local authorities. I have mixed views about barring Oireachtas Members, though I take the Minister’s point that we have plenty to do in these Houses. If membership of the Dublin transport authority is really a full-time, professional commitment, Oireachtas Members should be ruled out of serving on it.

Senator Paschal Donohoe: I ask the Minister, when he is making the amendment he suggested regarding the participation of local authority members, to keep the remit for such members as wide as possible. I am aware that in other parts of the legislation the Minister is quite specific in suggesting that members of the regional authorities or assemblies should be involved in the Dublin transport authority. In any amendment the Minister makes in this regard, he should not be prescriptive about the role a member of a local authority may have. In many cases “ordinary” members of city and county councils may have much expertise in this area because they are members of strategic policy committees or because of their professional backgrounds. However, they may not be members of regional assemblies due to the demands of jobs they hold.
I ask the Minister to provide as broad a remit as possible, to allow all members of the local authority to participate, when he decides how to amend this legislation. This would be a welcome change.

Senator John Ellis: I feel that if we dropped section 40(1)(a) entirely and changed section 40(1)(b) to read “an elected Member or nominated Member of either House of the Oireachtas or the European Parliament”, we could get out of the spot of trouble we are in.

Deputy Noel Dempsey: We can discuss how this will be done on Report Stage. It is possible that we could make this very simple, though sometimes people do not like simple language in legislation.

Senator David Norris: I do.

Deputy Noel Dempsey: If a person becomes a Member of either House of the Oireachtas or the European Parliament that solves the problem. We will look for an agreed way forward on this. I will give consideration to Senator Donohoe’s point. 4 o’clock

Senator David Norris: This opens the whole discussion on Members of the Oireachtas. Senator Donohoe mentioned people with major professional commitments who may still be members of local authorities. That would mean they could not give a full-time commitment. If that is to be opened up, there would be a need to also question membership of the Oireachtas because there is a contradiction there.

Amendment, by leave, withdrawn.
Amendments Nos. 38 to 41, inclusive, not moved.
Section 40 agreed to.
Sections 41 and 42 agreed to.
SECTION 43.
An Leas-Chathaoirleach: Amendment No. 41a is in the names of Senators Brendan Ryan, Alex White, Michael McCarthy, Phil Prendergast, Dominic Hannigan, Alex Kelly and David Norris.

Senator Brendan Ryan: I move amendment No. 41a:

In page 36, line 12, to delete paragraph (a).

Senator David Norris: Is this amendment in opposition to the section?

An Leas-Chathaoirleach: It is amendment No. 41a, on an additional list, already circulated on 8 May.

Senator Brendan Ryan: This amendment seeks to delete section 43, paragraph (a). An immunity for individuals in good faith on behalf of the authority, in accordance with section 80, would not be objectionable. However, a blanket immunity against any proceedings in respect of the authority itself for failure to act appears to be open to constitutional challenge, according to our advice. The Minister has an amendment which is to delete the section in full. I hope it is in recognition of our amendment and if so, I thank him for that.

Deputy Noel Dempsey: The bad news for Senator Ryan is that when we looked at this again, it was decided that I should withdraw my amendments. I take it we are taking these two together, amendment No. 41a and my amendment to delete section 43. The Government is withdrawing the proposal for the deletion of the section, therefore, Senator Ryan and I are not ad idem, but rather on opposite sides in this regard.

Senator David Norris: Could the Minister explain the rationale behind this dithering?

Deputy Noel Dempsey: It was originally proposed to delete section 43, but we received further legal advice in this regard to what is contained in the section. It is a common provision in legislation establishing State bodies. Its purpose is to ensure no one can seek to claim damages from, inter alia, the authority or a subsidiary of the authority in circumstances where the authority or its subsidiary fails to conform or comply with its statutory functions. In other words, we are ensuring that no one can take a legal action against the authority or its subsidiary body for something it did not do. Basically, there are many people who are willing to take legal action against authorities and their subsidiaries for things they do, or do not do properly. We are not going to offer people the opportunity to take legal action against authorities for things they did not do, as this would serve to further enhance the compensation culture that exists at the moment.
If we remove this provision we shall be opening a can of worms. Given the spirit or intent of Senator Ryan’s proposal, however, it is important to state that there will be no bar on anybody taking an action regarding alleged damage arising from the exercise by the authority, or a subsidiary, of its statutory functions. If somebody does something incorrectly, as a result of which loss or damage is caused, my amendment will ensure people may continue to take action against the authority or subsidiary concerned. We are simply not giving people the right to sue because an authority did not do something.

Senator Paschal Donohoe: Will the Minister clarify two points on this amendment? How common is a clause such as this in legislation setting up an organisation such as the Dublin transport authority? When I read the section, it appeared to that this was a blanket cover to the effect that anybody working for the Dublin transport authority would be immune from prosecution for services he or she was not providing. This seemed to be a very strong indemnity to be offering any employee of the Dublin transport authority.
Even if I take on board the point the Minister has just made, about the need for an employee of the authority to have such immunity, paragraph (d) also offers this immunity to a person who is providing services to the Authority, that is, somebody who is not an employee of the authority but who is just providing services to it. Is it common for a blanket immunity such as this to be offered to somebody who is not an employee of the organisation?

Senator Brendan Ryan: Although our legal advice is that this blanket approach might lead to a constitutional challenge later, I do not intend to press our amendment but I reserve the right to seek to have it reconsidered on Report Stage.
Senator David Norris: It is rather curious behaviour. It is somewhat like the “I stepped in again, you stepped out again” approach. It appears in the Bill, step 1. It is deleted, step 2, and then it is back in, step 3. That does not suggest a very clear and logical approach. I am not fully convinced about the Minister’s action. Is it the case that the Minister does not now propose to delete the section?

Deputy Noel Dempsey: I do not propose to delete it.

Senator David Norris: The Minister is right, particularly since we were talking earlier about safety. If somebody is injured because of a dereliction on the part of a transport authority, particularly if Senator Donohoe has his way and it is running railway trains, buses, boats, canal barges, etc., then the public should have the right to sue. The right to restore something that was proposed to be deleted suggest some degree of dithering but that is a very human quality. Since the Minister has got it right now, we shall absolve him.

Senator John Ellis: We need to be careful about paragraph (d), which refers to “a person providing services to the Authority”. That could very well be construed as a subcontractor to the authority who was negligent should not be exempt from being sued. In the event, it is the authority that will be sued, not the subcontractor if there is negligence, and there should be some way of getting around that, because a loophole exists. It means that if I am contracting to the DTA, I do not have to give tuppence about insurance or anything else, because the authority is the first port of call, and I am exempt. It is the DTA that gets sued.

Senator David Norris: I withdraw my remarks because I am now completely confused. I have been made dizzy by this sort of thing, and it now appears that the immunity is left intact. I am not sure this is a good idea for the reasons I gave when I thought matters were the other way around. I do not see why a citizen should not have a case for redress if he or she is damaged by the actions of the authority. It seems a wide-ranging immunity is to be provided without very clear reasons from the Minister.

Senator Paschal Donohoe: Senator Ellis and I have raised a question about section 43(d). I am not convinced about the need for such a strong immunity for the authority itself. I have, however, a wider concern about whether such immunity should be extended to a third party working for the authority. Will the Minister give an assurance that such a clause is commonplace in enabling legislation establishing new bodies and it cannot be used to excuse poor service or performance by a contracted party?

Deputy Noel Dempsey: Such a provision is contained in the Roads Acts. The Senators are having some difficulty with this clause. I was accused of dithering about it earlier by Senator Norris but he has changed his position four times since we started. There is a certain amount of confusion, largely because of the amendments. I will examine this again on Report Stage.
The provision states no action or other proceedings shall lie or be maintainable against the authority, or a subsidiary of the authority, if it fails to perform or to comply with its statutory duties. I understand the concerns expressed by Senators. If, for example, a subcontractor does bad work on a Luas line and it causes a crash, there are concerns the subcontractor could be immune from prosecution under this provision. I will clarify this on Report Stage.

Amendment, by leave, withdrawn.
Section 43 agreed to.
SECTION 44.
Acting Chairman (Senator Michael McCarthy): Amendment No. 42 is ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 42 not moved.
Senator Paschal Donohoe: I move amendment No. 43:

In page 38, subsection (10), line 24, after “Authority” to insert the following:

“but must in the first instance be open to competitive tender to all public transport operators”.
We have had full discussions about amendments of this kind already. The Dublin transport authority should play a more active role in stimulating competition for new routes and modes of public transport. It is about ensuring taxpayers’ money is well spent and the routes and capacity are in place to deal with the growing population of the greater Dublin area.

Deputy Noel Dempsey: The Senator wants all public transport networks to be open to competitive tender. Section 44(9) allows the authority to exploit commercial opportunities arising from its functions under Part 3. This includes aspects such as public transport infrastructure, public passenger transport services, integration measures, traffic management, research and information. Section 44(10) enables the authority, or a third party on its behalf, to exercise that right.
I want to avoid becoming too prescriptive in this section. It would be impossible to list all commercial opportunities that may arise. Accordingly, the purpose of section 44 is not to be prescriptive but leave the authority the sufficient latitude and flexibility to enable it to act commercially where the opportunity arises. It is not possible to foresee every case in which there may be a need for a competitive tender process. In some commercial opportunities, no need may arise.
The Dublin transport authority will be subject to the necessary procurement legislation where it applies. The section, as it stands, gives greater flexibility and will not preclude competitive tendering. I will, therefore, not accept the amendment.

Amendment, by leave, withdrawn.
Section 44 agreed to.
Sections 45 to 48, inclusive, agreed to.
SECTION 49.
Government amendment No. 44:

In page 41, subsection (2), line 50, to delete ”section 48“ and substitute ”subsection (1)”.
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 and 51 agreed to.
NEW SECTION.
Senator Paschal Donohoe: I move amendment No. 45:

In page 42, before section 52, to insert the following new section:

”52.-(1) The Authority shall issue additional public service contracts where it can be shown by any person or body corporate that-

(a) there is a requirement for such service in the general economic interest; and

(b) a public service operator has the capacity to provide such a service.

(2) The Authority shall ensure there is a facility in the Authority to accept and consider any such proposal under subsection (1).”.
The amendment arises from my concerns over the immense power vested in the authority over Dublin’s transport network. The Bill allows the authority to be both a regulator and provider of transport services. This creates a conflict of interest for the authority which could cause problems.
Under section 52 the authority will have exclusive power to determine what it believes are the needs of Dublin’s commuters and the organisations involved in providing public transport. The amendment seeks to allow another body, either Dublin Bus or a private operator, to express a belief that there is a requirement for the expansion of a service or the provision of an additional service, and to ask the Dublin transport authority to consider this request and publish a view whether it believes this additional service is needed and whether it will provide it. Also, if the authority will not provide it, it should explain why this is the case.
I have tried to make the amendment more reasonable by making clear that the organisation seeking to demonstrate that an additional transport capacity is needed must be able to demonstrate that is in the clear economic interest of the region, as laid out in the early sections of this Bill. We must also ensure the operator has the capacity to provide the service. We do not want frivolous organisations wasting the time of the public and the Dublin transport authority by putting forward recommendations for services they are not able to provide.
The amendment asks the Dublin transport authority to consider the proposals and recommendations from other organisations in the greater Dublin region to dilute in some way the power this organisation will have and allow it to consider competing views. I hope in some cases that these competing views, if met, would be in the interests of commuters in the Dublin region.

Deputy Noel Dempsey: These sections are important, as the Senator has said. Before I address the specific amendment, it is important to put in place the background to this overall chapter. As Senators have said and as they will know from the Bill, the immediate results that will flow from the chapter we are discussing here are that the procurement of all public transport services in the greater Dublin area will be done by the Dublin transport authority, which is important. This will involve the authority entering into public transport service contracts with all prospective transport operators.
In the case of public bus and rail passenger services, contracts will only be entered into where a public service obligation, PSO, is identified by the authority. Contracts will have to comply with EU law and in particular with the new EU Regulation 1370/2007/EC which establishes a new framework for PSO contracts for bus and rail passenger services and comes into effect on 3 December 2009.
This chapter has been the focus of much attention. When I first introduced the Bill to Government, the Attorney General made his views known on this on the basis of what was happening in Europe at the time with the PSO regulation. Given this, we needed to alter the Bill to take the PSO regulation fully into account. Everything that is in this chapter and these sections is very carefully worded to ensure we comply with EU law and the PSO regulation, which, as I said, will come into effect on 3 December 2009.
The specific structure we have adopted with regard to the making of the direct award of contracts with the CIE companies has been prepared with particular reference to the need to migrate from where we are at present to full regulation in 2009. That is the general background. The Bill is very carefully worded in this regard.
With regard to the amendment, Chapter 2 of Part 3 of the Bill establishes a comprehensive framework which will give the authority the power to secure the provision of public passenger transport services through the making of public service transport contracts. Section 48 envisages that the authority may enter into such contracts following open tendering in respect of public bus passenger services, metro services and light rail services. It also provides that public bus and rail services can be secured by means of direct award contracts. However, section 52, which relates specifically to the making of direct award contracts, provides that in the case of public bus passenger services, such contracts will only apply to the continued provision of the services currently being provided by Dublin Bus and Bus Éireann. Accordingly, the future growth in the market for subvented public bus services can only be pursued by way of open tendering.
The intent of the Senator’s proposed amendment is already addressed in the overall provisions of this chapter of the Bill. I specifically cite the provisions of sections 48 and 52, to which I referred. These have been carefully prepared and drafted to ensure they are fully in line with the provisions of the EU regulation, which, as the Senator appreciates, has direct application in this regard.
The Senator’s amendment includes the words “shall issue additional public service contracts”. This leaves the authority with no discretion as to how it might provide a public transport service. That is a not a route we want to go down because options must be available to the authority. The intent of the Senator’s amendment is addressed already in these sections which fully comply with the EU PSO requirements in place.

Senator Paschal Donohoe: The Minister’s response indicates clearly that this is one of the pivotal sections in the Bill, which I acknowledge. I also take on board his point regarding the language of my amendment. The concern we should all share with regard to the Bill is that we might get a phrase or clause wrong in such a way that creates vulnerability for an organisation in determining future transport policy in Ireland.
I have a particular concern. Let us say a private operator is operating in another European market and wants to become involved in the provision of transport in Ireland. By legally challenging part of this legislation, the operator would remove the ability of the Government to create policy and might try to force the policy direction of this country via legal action.
There are a number of points I would like the Minister to address. First, is he confirming in this clause that the Dublin transport authority will be what I believe is called the competent local authority for the provision of transport within the Dublin region? If so, will the authority which decides on local transport matters outside of the greater Dublin area still be the Department of Transport and the Minister? Is there a conflict between having the competent local authority, the Dublin transport authority, deciding transport policy within the greater Dublin area and the Department of Transport deciding transport policy for the region outside this area? Could this conflict in any way create an opening for legal challenge to this legislation at some point in the future?
Second, if we are confirming that the Dublin transport authority is the competent local authority for transport issues within the greater Dublin area, does this in any way affect the ability of the new organisation to offer direct award contracts to organisations such as Dublin Bus and Iarnród Éireann? As the Minister acknowledged, if we are wrong on any of these points, it will open this legislation to challenge by private companies who might want to influence the way we provide transport in Ireland.

Deputy Noel Dempsey: On the Senator’s specific questions, which are valid, the DTA will be the competent authority for transport in the greater Dublin area. The Department of Transport will continue to be the competent authority outside the greater Dublin area. As stated in a newspaper article on the Bill, the Government is not handing over all policy-making power and will still be responsible for transport policy. The DTA will be acting on behalf of the Minister as a competent authority, not as a competent local authority per se. The Minister is also a competent authority.
Comments were made to the effect that the Minister for Transport is mentioned 183 times in the Bill. I make no apologies for that because I believe, in respect of any organisation we set up, that Ministers should be accountable to the Houses for policy and the implementation thereof. Every Member of the Oireachtas would agree with this. I am, therefore, not handing over all policy-making functions in respect of transport in the greater Dublin area. I will be asking the DTA to execute the policy and any of the decisions it will make will be subject to ministerial approval, as is right. This meets the Senator’s concerns.

Senator Paschal Donohoe: I thank the Minister for his response. He has clarified that within the greater Dublin area, the DTA will be the competent local body while elsewhere it will be the Department of Transport. I am teasing out this point because it is of pivotal importance to this legislation and how the authority will work.
Will the Minister explain the position on routes that do not originate within the greater Dublin area but which are important to the smooth operation of the transport system run by the authority? What will be the deciding body regarding decisions on such routes? Consider, for example, decisions on fares or the frequency of buses on a bus route that begins outside the greater Dublin area. The Minister said the Department of Transport will be responsible for the region outside the greater Dublin area and that the DTA will be responsible for the area within. If the route begins outside the greater Dublin area, will the DTA or the Department be responsible for making decisions on how it will operate?

Deputy Noel Dempsey: To reiterate, we are concerned here with competent authorities. The Department of Transport is a competent authority and the DTA will be part of that authority. That is the position, particularly under EU legislation. On the specific point on publicly funded transport services - provided, for example, by Bus Éireann or Iarnród Éireann - that commence or terminate beyond the greater Dublin area and which would be regarded as being essentially part of public transport services in the greater Dublin area, section 54 provides that the Minister can, by order, designate services for the purpose of the section. He may also designate such services as the subject of exclusive rights subject to the granting of licences under the Road Transport Act 1932 or the subsequent legislative amendments thereto. Section 54(4) states: “The Authority shall enter into direct award contracts, which impose public service obligations, with Bus Éireann or Irish Rail in respect of the public passenger transport services to which this section relates.” The Minister will make the order and the DTA will execute it.

Senator Paschal Donohoe: I thank the Minister for his clarification. I will withdraw my amendment, particularly in light of his points. However, this area is ripe for confusion or exploitation in that the Department of Transport will be the national deciding body on transport policy while the Dublin transport authority will be operating in the greater Dublin area. The Oireachtas and those involved in the provision of transport in the Dublin area will need to monitor this.

Amendment, by leave, withdrawn.
SECTION 52.
Senator David Norris: I move amendment No. 46:

In page 42, subsection (1), after line 47, to insert the following:

”(d) Any new such public service contract within the greater Dublin area shall be offered first to Dublin Bus and or Bus Eireann.”.
The Minister has more or less addressed this amendment already because he suggested a European directive required the existence of an open, public and competitive regime. While I favour the existing service providers, particularly where there is a social element, I take it he will reiterate that answer, in which case I will have to accept it.

Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
Senator David Norris: I move amendment No. 48:

In page 43, subsection (4), line 15, to delete “5 years” and substitute “10 years”.
At an earlier stage of our consideration of the Bill the Minister was lyrical on the need for what he described as a “level playing field” in these areas. If one is giving ten years to other providers, it seems that public service providers should be given exactly the same treatment. Perhaps the Minister will explain to me the distinction between them, which I do not understand.

Deputy Noel Dempsey: The new EU regulation on public service obligations creates the framework that dictates how member states can award exclusive rights and pay compensation for public bus and passenger services in respect of which the public service obligations have been imposed. A specific right is provided for in the regulation to allow one to do this. Under the regulation, which will apply from 3 December 2009, and which will come into full effect on 3 December 2019, member states are being encouraged to take gradual measures to comply with its provision. The chapter we are talking about in the Bill provides for the first time in Irish transport law a contracting regime to govern the subvention of public bus and rail passenger services in respect of which public service obligations apply.
Section 52 establishes that the three CIE companies will have exclusive rights to provide the services that are the subject of State financial support at present and for growth in respect of rail services, subject to future legislative change. In the case of bus services, the exclusive right also is subject to the grant of bus route licences to private bus operators under the Road Transport Act 1932. Direct award contracts will be entered into to support the provision of the services that are encapsulated in such exclusive rights.
Section 48 provides that future growth in the market for subvented public services in respect of which the authority has determined that a public service obligation applies will be addressed by way of contracts resulting from an open tendering process. However, section 52 proposes that the initial direct award contracts in respect of bus services provided by Dublin Bus and Bus Éireann will be for a period of five years. It also provides for the review of such contracts and for the making of subsequent contracts.
As for the Senator’s point that the initial direct award contracts are limited to a five-year period, this provision, allied to the review provisions and the power to enter into subsequent direct award contracts, ensures the provisions of EU Regulation No. 1370/2007 will be fully complied with within the timeframe envisaged in that regulation. This section and chapter were carefully crafted to ensure the exclusive rights being granted to the CIE companies, as well as the direct award contracts which relate to them, will be fully in line with Ireland’s obligations under the regulations. Accordingly, I ask the Senator to withdraw the proposed amendment.

Amendment, by leave, withdrawn.
Senator David Norris: I move amendment No. 49:

In page 43, subsection (5)(a), lines 19 and 20, to delete “unilaterally make amendments to such contract” and substitute the following:

“can amend such direct award in objectively justified cases and in a proportionate manner”.
This is a precautionary amendment because the powers granted to the Minister in this regard are quite serious and swingeing. The section pertains to carrying out a review and so on and there is another related amendment a little further on. My amendment includes a provision that this should be objectively justified and the action should be taken in a proportionate manner. I am sure this is exactly what the Minister would wish. He would not wish to be disproportionate and he would desire such cases to be objectively justified and I propose to include this wording as a form of safety net.

Deputy Noel Dempsey: This chapter relates to the legislative basis for the procurement of bus, rail, metro and light rail public passenger transport services by the Dublin transport authority in the greater Dublin area. As for public bus and rail services, procurement will arise only where a public service obligation is determined and there is a consequent requirement to subvent the operation of such services. The approach adopted in this chapter in respect of the determination of public service obligations again is consistent with the EU public service obligation regulation which provides for the making of a determination that such an obligation is to be applied as a matter for the competent authority. In the case of public bus and rail passenger services in the greater Dublin area, such a role is being given to the authority.
For that reason, as well as the associated responsibility given to it to ensure funding for the delivery of the services in respect of which the public service obligation relates is in compliance with Regulation No. 1370/2007, the authority must be empowered to carry out reviews of the public service contracts at its exclusive discretion. This is encapsulated in section 52(5). Obviously, the authority cannot act unilaterally, inappropriately or disproportionately in cases such as this. It will be obliged to act in a fair manner and as its actions will be subject to judicial review, the companies are fully protected.

Senator David Norris: While the Minister’s response again makes clear that this section is in compliance with the European directive, nothing in my amendment is in conflict with it. Although the Minister has more or less stated this would be the manner in which the authority would act in any case, enabling an authority to act unilaterally in such a way is a strong power. I propose the inclusion of a safeguard of precisely the kind the Minister considers will be the manner in which the authority will act in any case. It is not in conflict with any provisions contained in the European regulations.
I will read the Minister’s further comments with great interest. However, I must apologise to the House as I have a long-standing engagement that I must fulfil and for which I am already late. Consequently, I have asked Senator Donohoe to move the subsequent amendments in my name. While I greatly regret that I will not have an opportunity to be eloquent on the subject of St. Stephen’s Green, I understand the Bill’s Report Stage debate will take place on another day and I may be able to wax eloquent on the subject of the green on that occasion. I again apologise to the Minister and the House. I do not intend any discourtesy and I am grateful to Senator Donohoe for agreeing to technically move my amendments. This does not mean he is ideologically committed to them but he simply is doing me a democratic service.

Amendment, by leave, withdrawn.
Senator Paschal Donohoe: I move amendment No. 50:

In page 43, subsection (5)(b), line 23, after “services”to insert the following:

“in objectively justified cases and in a proportionate manner”.

Deputy Noel Dempsey: As was the case with amendment No. 45, the capacity to review direct award contracts must rest with the authority. However, in the case of a review under section 52(5)(b), the authority must engage in a public consultation process provided for in section 52(5)(d). As part of that process, the authority is required to consult the service provider as well as other potential interested parties, including the users of the services, before it makes the amendment. The authority also is required, under section 52(5)(e), to publish a report as to the reasons it promoted the amendments made as a result of a review under section 52(5)(b). This section provides the opportunity for all interested parties to make their views known to the authority and as I consider the approach set out is appropriate in the circumstances, I ask the Senator to withdraw the amendment.

Amendment, by leave, withdrawn.