Are Members of the opinion that we should suspend for the Order of Business in the Dáil?

I do not know if firm arrangements have been made in respect of the summer recess, but it appears that the committee will have only two more weeks to debate the Bill before Report Stage is taken in the Dáil and all Stages are taken in the Seanad. I will be available at all times during the next two weeks and if dates for meetings are arranged I will be present. I am available today and tomorrow and I will forgo visiting Brussels on Thursday to be present then and on Friday. If necessary, I can make similar arrangements for next week.

We will co-operate in every way possible to facilitate meetings today, tomorrow and on Thursday.

I am due to attend a meeting of the Council of Ministers on Thursday but I will forgo doing so to facilitate the committee.

It is proposed that our meeting tomorrow should take place between 5.30 p.m. and 8.30 p.m.

Is it not possible to meet tomorrow afternoon?

There is a problem with accommodation tomorrow. It is also proposed that on Tuesday next we will meet between 2.30 p.m. and 5.30 p.m. and on Wednesday, 23 June, we will meet between 3.30 p.m. and 8.30 p.m.

There will be a problem on one of those days because the Estimates are being taken.

The Estimates will be taken between 5.30 p.m. and 8.30 p.m. Are the arrangements for Wednesday, 23 June, acceptable?

Yes.

What are the Minister's plans for Thursday, 24 June?

My son is getting married on that day and I would appreciate being allowed to attend the wedding.

We are happy to co-operate. We wish the Minister's son every happiness.

What will be the duration of today's meeting?

We can sit until 8.30 p.m. with a break to allow people attend in the House for the Order of Business.

For how long will the meeting be suspended?

From 4.15 p.m. until 5 p.m. Is that agreed? Agreed.

What are the arrangements for tomorrow?

We are meeting from 5.30 p.m. until 8.30 p.m.

Is there no possibility that we might obtain the use of a room tomorrow afternoon?

No.

I appreciate that there are problems with accommodation but we must conclude our deliberations on this Bill. For what purposes have the committee rooms been booked tomorrow?

By other committees which will be debating Estimates.

In both rooms?

A total of five Estimates are due for discussion this week.

Would it be possible to check if a room might be made available?

Yes. We will try to obtain the use of a room for tomorrow afternoon. As already stated, on Wednesday, 23 June, we will be meeting between 3.30 p.m. and 8.30 p.m.

The Bill is due in the Seanad on the following Tuesday so we will be obliged to have concluded our deliberations by that time in order to permit all Stages to be taken in the Upper House before, if necessary, the Bill is returned to the Dáil. We must make haste.

To make haste is not a bad idea. At our last meeting amendments were agreed to in the absence of Deputy Yates.

At our last meeting we agreed to leave out sections until the Deputy was available.

The sections concerned are 13, 15 and 27. Deputy Yates is grateful.

We have all been lobbied by various interest groups concerning CHP. I received a letter from the ESB which describes the information we got before as palpably false, misleading and designed to promote another agenda. It is very serious if Members - during the process of legitimate lobbying - are given information that is palpably false, misleading and designed to promote another agenda.

I also received that letter. I intend to write to its author. I am advised that it is unusual and inappropriate that anyone who has only visitor status before this committee would comment, write or attempt in any way, by way of clarification or otherwise, to interfere with Committee Stage proceedings.

I presume everyone got the same letter.

I intend to state the position as provided for in Standing Orders.

Did everyone get the same letter?

Yes.

I accept the Chairman's ruling and acknowledge he is in charge of this committee. I also understand that people have the right to lobby and are free to consider what people tell them. When Deputy Yates tabled his amendments I said I had not met the people concerned; subsequently I met them. While information material was being sent to Deputy Yates it appears the group told him that "the Minister has now succumbed, helpfully we think". I was upset by that remark. I do not succumb to anyone. The letter referred to today is startling.

The promoters of the national conference centre were our original lobbyists.

l did not receive a letter from them until much later.

The promoters stated in their letter:

Our interest in CHP arose from the fact that we are building a national conference centre. The ESB cannot power it conventionally until one year after its proposed opening date due to the ESB's workload schedule. All efforts, including political, have failed to shift them. If the NCC is not operating before, the ESB state the £26 million EU grant will be lost and the NCC will never be built.

According to the ESB's letter, which is a State agency and has offered to leave their records open to inspection, their statement is false. It is a serious matter when a false statement is submitted to this committee in the form of lobbying or otherwise. I am not sure how to proceed with this matter.

I did not receive that letter until later. I am not sure how to proceed either, particularly with regard to the comment made by the group that I had succumbed. Deputy Yates informed me about their comment but it was not said to me directly. The first day we started to deal with this Bill I said that there would be a lot of strong lobbying. I have no difficulty with lobbying but you must have time and space to clear your mind and be able to make decisions. I was not subjected to the same type of lobbying as other Deputies. A fortnight ago I met the group in question and they confirmed their views. It was after that meeting that I, like everyone else, received a letter from the ESB outlining times, dates, conversations, file numbers, etc., in great detail. This is a serious situation.

I have taken account of what Deputy Stagg and the Minister said. They have stated the correct views on this matter. We did not ask for submissions from anyone in connection with this Bill. If we accept the ESB's view of the letter then it is grossly misleading. However, the ESB is well able to handle that type of situation. The Minister has clearly stated that lobbying is a feature of politics but this committee does not accept the suggestion that any Member surrendered to anyone.

I agree.

I do not want to clash with the ESB. It is a State agency for whom I have the highest regard. Nevertheless I am duty bound to outline the Standing Order arrangements. I also want to ensure that this committee is not used by outside groups as an instrument to solve disagreements and confrontations on legislation.

I accept the Chairman's viewpoint.

I have not experienced this amount of intense lobbying before - and it has not been helpful. If Members had been left alone we might have done just as well with regard to legislation. Our experience highlights the need for lobbying to be regulated. If we did that we could prevent people from giving false information to the committee. The ESB did not give false information but false information was presented about it. Perhaps the Chairman would inform the relevant people that there is a need to regulate lobbying and for operating standards to be set out.

Those revelations are now being taken up by other people and passed on to me as if they were the gospel truth.

It is unfair and it misrepresents the truth.

Since I do not have a copy of that letter with me I am not in a position to comment on the matter. However, I have listened carefully to what has been said. With regard to the Chairman's comments on the ESB, I wish to state that I am proud of the company's work, achievements and success to date.

I agree that there has been a considerable amount of lobbying and that it should be regulated. Unfortunately, Deputy Yates is not present and he has not had an opportunity to discuss this matter.

I support the Chairman's stance on this issue. It is extraordinary that the ESB could be accused of being unable to provide a service to anyone here, particularly as it has served this country well. For the past two years storms have resulted in half of the country's electricity supply being cut off but the ESB quickly reconnected everyone affected. That is proof the ESB is a strong and capable company.

That does not take from the value of CHP.

With regard to Standing Orders and the points raised about lobbying, we can have Standing Orders examined to see what amendment can be made to ensure the committee's integrity will not be affected in the manner that is has been and that good use is made of our time.

SECTION 8.

I move amendment No. 45:

In page 10, subsection (5) (c), line 42, to delete "take account of" and substitute "ensure that provision is made for".

I tabled a similar amendment on a previous Bill. I am worried that someone could inadvertently give false information and leave themselves open to litigation.

The Deputy tabled a similar amendment when we were dealing with legislation on Aer Rianta and we had an argument about it.

I felt the words "take account of" were too weak and that we should insert "ensure provision is made for".

What is in the Bill is the correct wording. I see the point behind Deputy Stagg's argument but it goes beyond what the commissioner, regulator or whatever he will call himself would do. To "take account of" fits the bill - I do not mean to be funny.

I move amendment No. 48:

In page 11, subsection (5)(d)(ii), line 5, after "the" to insert "production and".

The Minister might include "production" in this case, so section 8(d)(ii) would read "methods of increasing efficiency in the use and production of electricity."

We already discussed this amendment.

It was discussed with amendment No. 38. I thought the Minister indicated she would look again at including "production" as well as "use".

What does the record say?

It has been decided whether the amendment is moved or not.

What does the record of the debate on that amendment say?

We do not have it. Amendment No. 38 was discussed and was withdrawn.

I move amendment No. 49:

In page 11, subsection (5), between lines 6 and 7, to insert the following:

"(e) to require that the system operator give priority to generating stations using renewable energy sources when selecting generating stations.".

We had a long discussion on this amendment, so I will withdraw it. Note was taken of the points made in the amendment.

I do not have the record with me.

I recall it, so I hope the record will show my recall is correct.

I presume whatever the record says is what happened.

I move amendment No. 52:

In page 11, subsection (2)(b), lines 14 and 15, to delete "holders of licences or authorisations, eligible customers" and substitute "individual holders of licences or authorisations, individual eligible customers".

This section allows the Minister to give directions to the commission until 19 February 2000 which, as we know, is the deadline and will stand repealed after that date. This allows the Minister to issue general policy directions to the commission for the sake of consistency as we get on with the next electricity directive. This amendment will reassure prospective entrants into the electricity market as well as the ESB that the Minister of the day cannot issue directions to the commission in relation to individual licences or authorisation holders or individual eligible customers.

Has the Minister thought about who will revoke licences?

It would be the regulator.

The Minister said she will not have the power.

Not when the Bill is passed and when the regulator is established.

Deputy Daly asked about revoking licences. Will the Minister outline the position on amending licences?

I will not amend licences.

What power will the commissioner have?

He will have the power to grant, revoke and amend licences - this is contained in another section.

I move amendment No. 53:

In page 12, subsection (6)(d), line 17, before "gives" to insert "knowingly".

I am worried that somebody would inadvertently give false information. It is a normal defence in court as well. Since the word "knowingly" is normally included in legislation, the Minister might consider inserting the word "knowingly" before "gives to the Commission or to an authorised officer information which is false or misleading, in a material respect".

That came up previously in the Aer Rianta Bill in relation to the director of a board. When the Deputy moved his amendment, I knew that was the Bill. The issue concerned a director of the board knowingly giving false information. I accept the Deputy's amendment.

The difference between the two situations was a directorship.

It was. I said a director should be well aware.

The word "knowingly" is already used in paragraph (c) which states "knowinglyalters, suppresses or destroys". It would be inconsistent not to use the word in subsection (d).

It is slightly different. I take Deputy Stagg's point.

Amendment No. 55 is related to amendment No. 54 and both may be discussed together. Is that agreed? Agreed.

I move amendment No. 54:

In page 12, line 28, to delete "or" and substitute "and".

Section 11, which deals with search warrants, mentions authorised officers or members of the Garda Síochána. I am not clear who authorised officers will be and what authority they will have in carrying out actions with search warrants. Would it not be advisable to have a member of the Garda Síochána in attendance at such times? That is the reason I tabled this amendment. I have asked for somebody not below the rank of sergeant. I am not reassured that the reference to authorised officers carries sufficient authority to carry out search warrants, and I would like the Garda to be involved. What type of person does the Minister see as an authorised officer?

Would the authorised officer be able to gain entry on his own? Does the Minister believe it would be desirable to have a member of the Garda Síochána present? If the authorised officer had the power to gain entry after obtaining a search warrant, it might not be necessary. It might be in the best interests of the firm or company involved if an authorised officer could go in without the Garda Síochána. That might be better.

I understand the attendance of Garda officers is normal in such circumstances. I do not believe they should not be in attendance.

Authorised officers will have specialised knowledge and will be well informed about the parameters of their job. This section states that an authorised officer, who must be accompanied by another authorised officer or a Garda, will be able to exercise the powers granted to him or her under the terms of a search warrant. The Force's resources are impinged upon enough without its members being obliged to await the arrival of a Garda of a certain rank before a search warrant can be acted upon. The commencement of a search could be unduly delayed as a result. If an unauthorised officer can accompany the officer charged with carrying out the terms of the warrant, then the section as it stands is satisfactory.

Amendments Nos. 54 and 55 seek to require the attendance of a member of the Garda Síochána of at least the rank of sergeant when entering premises on foot of a search warrant obtained in the District Court. The provision set out in section 11 is standard and the Parliamentary Draftsman has advised that the words "or members of the Garda Síochána" used in this context would allow an authorised officer to be accompanied either by other authorised officers or the gardaí, by both or by neither.

In general I believe gardaí should be present when search warrants are being implemented but there could be circumstances where it would not be possible for a member of the Force to be present. As Deputy Stagg stated, it might not be possible to have present a Garda of suitable rank during a search. I cannot accept the proposed requirement that the member of the Garda Síochána to be present during a search should not be lower than the rank of sergeant because one might not be available at the appropriate time.

It should be a matter for either the courts or the Garda Síochána to decide what is appropriate on a case by case basis. It is easy to stipulate in a Bill that certain requirements must be met. However, authorised officers may need to obtain information by entering a premises during a major crime-busting operation and a sergeant might not be available to assist them. In addition, the courts might decide in certain instances that only an authorised officer need be in attendance. This is a standard provision and in my opinion we should not alter it.

I deliberately separated the two amendments but they are being discussed together. Given the times in which we live, I am concerned because people can call to houses and present different types of identification. I believe there is a need to amend the section and I offer one or other or both of the amendments for that purpose. If the Minister is confident that an authorised officer will be sufficiently empowered to carry out his or her job, I will withdraw the amendments. However, I believe they should have been discussed separately.

I appreciate that stipulating that a garda not lower than the rank of sergeant should be present during a search might require the deployment of resources which the Government either cannot or will not make available to the Force. However, that is another day's work and it is the responsibility of another Minister. I will withdraw the amendments because my main aim was to outline my concerns. I hope the Minister has taken note of those concerns.

I have.

I move amendment No. 56:

In page 12, line 30, after "enter" to insert "such premises as are specified in the warrant".

This amendment was suggested by the Parliamentary Draftsman in order to clarify the power to enter the premises, limiting it to what is written on the warrant, in other words, only the premises stipulated on the warrant may be entered.

Amendments Nos. 57, 58 and 58a are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 57:

In page 12, subsection (1), line 33, to delete "A" and substitute "Save as otherwise provided by law, a".

I am concerned that the Freedom of Information Act will apply to this legislation and to the commission. We could be faced with a situation where it would be illegal, under the terms of the Bill, to comply with the Freedom of Information Act. Inclusion of the term "Save as otherwise provided by law" will resolve this problem.

These amendments are motivated by the need to balance the need to protect information of a confidential commercial nature with the law as it stands in respect of the public interest under the Freedom of Information Act. Amendment No. 58 seeks to provide clarity in that regard. I am merely asking the Minister to balance the two provisions. There is a constraining provision which deals with confidential commercial information and it should be balanced by outlining the boundaries within which, namely, the Freedom of Information Act, that confidentiality should operate. Amendment No. 58 requests that reference be made to the requirements of the Freedom of Information Act.

This section involves matters of a confidential nature. It refers to "an adviser or consultant". We are concerned because people who are not connected with the commission might become involved in this area. How would the Minister define "adviser" or "consultant"?

That is a very topical question.

The section sets out a very tight line in respect of confidentiality but I believe it should be tightened even more. Use of the term "an adviser or consultant to" means that a large number of people might have access to confidential information.

Etain Doyle, the regulator of the telecommunications industry, has in the past two years employed up to 12 or 13 different consultants to draft papers for her. There is no way the commissioner could be prevented from employing advisers or consultants because he or she could not do his or her work without seeking expert advice in the form of consultancy or advisory studies. While one might want to tighten the confidentiality requirements, there is no real need to do so because the officer of the commissioner will only employ a small core staff. The technical advice needed in many instances will be furnished in the form of consultancy reports. Obviously, consultants need information and we are attempting to bind them to confidentiality while at the same time not nobbling the strictures of the Freedom of Information Act.

Deputy Stagg's amendment proposes that the section be subject to any other statutory requirement. This would make clear that the provision could not interfere with any other law requiring the disclosure of confidential information. I think this is a satisfactory way of putting it and the phrase used in the amendment, "Save as otherwise provided by law," is proper. Therefore, I am accepting the amendment.

Amendment No. 58 in the name of Deputy Sargent specifies that "no provision of this section shall be construed as in any way compromising the rights conferred on the public under the Freedom of Information Act, 1997, under the Freedom of Access to Information on the Environment Regulations, 1993, or under the Aarhus Convention on Access to Environmental Information, Public Participation in Decision-making and Access to Justice in matters relating to the Environment". That number of different strictures might be unnecessary as section 45 makes the commission subject to the Freedom of Information Act, 1997. The environment regulations of 1993 have been revised and replaced on two occasions - in 1996 and 1998 - and it is likely that new and more up to date regulations will be made this year and next year. The Aarhus Convention on Access to Environmental Information, Public Participation in Decision-

making and Access to Justice in matters relating to the Environment was, I am told, signed in 1998, but has not yet been ratified. This is a matter for another Department.

I move amendment No. 58a:

In page 12, after line 49, to insert the following subsection:

"(4) The Freedom of Information Act, 1997, is hereby amended in the Third Schedule thereto by the addition to Part I at the end thereof——

(a) in column (2), of 'Electricity Regulation Act, 1999.’, and

(b) in column (3), of 'Section 12.’.”.

This has been suggested by the freedom of information unit in the Department of Finance so that requests for information can be fully complied with. As Deputies are aware, the Act sets out a number of exemptions to protect sensitive information. I am asking the committee to accept the recommendation of the Department of Finance.

I do not understand the Minister's amendment. Does it refer to the list at the end of the Bill of all Acts——

Yes.

That is fine.

We are postponing consideration of section 13.

Section 13 deferred.

SECTION 14.

I move amendment No. 70:

In page 13, subsection (2), line 39, to delete "section 10” and substitute “section 13”.

This is a technical amendment and is required to rectify an incorrect cross-reference due to a clerical error. A reading of the text will make it clear that the reference in this subsection to "section 10" should read "section 13".

I move amendment No. 71:

In page 14, subsection (4), lines 2 and 3, to delete "continue in full force and effect as if this Act had not been passed" and substitute ", subject to the provisions of this Act, continue in full force and effect".

This is a technical amendment. The wording of section 14(4) as it stands could have been construed to mean that permits issued by the ESB before 1 September 1998 under subsection (2) of this section were not subject to any regulation under the Bill. The amendment clarifies that such permits will continue to apply and will be subject to the provisions of the Act.

I understand the general tenor of the amendment and accept that in some instances it may be necessary to change permits. Does the Minister see a problem in changing conditions which have already been imposed in the context of people who might have entered agreements?

In terms of permits?

Yes. Agreements have been entered into. For example, IVO Energy has made an investment - I have not discussed this with anybody.

The Deputy should just make his point. We are all afraid - this is what comes from over-intense lobbying in other areas.

They have made a big investment and have been granted a permit. Conditions were imposed and I am apprehensive that the regulator or commissioner might change the conditions and adversely affect agreements which have already been entered into.

I understand the point being made by the Deputy. In general I anticipate that changes will not be made to existing permits. At the same time, the regulator has to carry out his or her functions and I cannot tie their hands in advance in terms of a specific case when conditions change.

Agreements have been entered into with IVO Energy in consultation and co-operation with the Minister's Department and her advisers. Much discussion has taken place and the company has made a commitment.

I do not anticipate any changes.

I cannot say if what I am referring to will happen, but I am apprehensive that changes may be made in the future by somebody. IVO Energy has made an investment in excess of £100 million. Suppose another firm from outside Ireland wants to establish a similar company and changes are made to permits being granted——

Is the Deputy referring to new permits or the permit already granted?

I am worried that changes will be made to permits already granted which may adversely affect IVO Energy and result in strenuous conditions being imposed.

The Deputy is correct to put forward his view, but my belief is that general fairness will apply and that the regulator will see that a permit has been granted under conditions set out, agreed and signed and that building proceeded on that basis. I cannot foresee a situation where a regulator would seek to alter materially the conditions of a permit already granted. In any event an appeals system exists, so that if an existing permit holder thought modifications to their permit were being demanded they could appeal.

I think the issue of modification arises in section 18 and I will return to it at that stage.

I move amendment No. 72:

In page 14, between lines 3 and 4, to insert the following subsection:

"(5) The power of modification or revocation of a permit referred to in subsection (3) or (4) shall be exercisable by the Commission and not by the Board, and any powers conferred on the Board by such a permit shall be exercisable by the Commission and not by the Board.”.

This amendment has been suggested by the Attorney General's office to clarify that the commission will exercise regulatory authority on permits issued by the ESB under section 37 of the ESB Act, 1927.

I have observed that parliamentary draftsmen listen to debates on Bills and produce ten more amendments later. They are continuously thinking of ways to improve legislation. I have no doubt that they will send me a letter outlining how silly I am to make such an observation.

It would take a brave person to write that type of letter.

They listen to everything and are continuously trying to find a way to insert more amendments.

They got an earful today.

I have been asked to examine new amendments. The parliamentary draftsman produced an amendment for this Bill and now he has put forward an amendment to his original amendment. I notice that Members are not supporting me on this issue.

We are trying to get through the Bill.

We will defer consideration of section l5.

Section 15 deferred.

I move amendment No. 76:

In page 14, subsection (2), lines 39 and 40, to delete "may include criteria relating to" and substitute "may relate to".

In reviewing the Bill the Attorney General's office has advised that the wording of this subsection should be changed to reflect more accurately the provisions of Article 5 of the directive. The list of matters to which the criteria for authorisation may relate is an exhaustive one. This amendment is necessary to ensure compliance with that list which, in turn, complies with Article 5 of the electricity directive.

I move amendment No. 77:

In page 14, subsection (2), between lines 40 and 41, to insert the following:

"(a) the principles of sustainability and biodiversity,".

I want to include as one of the criteria specified by the Minister the principles of sustainability and biodiversity. The sections relating to the protection of the environment may be seen to overlap but I am referring to the security of supply and other issues of sustainability and biodiversity which would not come under the narrow term of "environment protection". I hope this Bill will take due note of the commitments entered into by the Government at the Rio and Kyoto Summits. The words "sustainability" and "biodiversity" evoke those commitments and we should keep them to the forefront of our minds, particularly in the mind of anyone making an application.

The list of criteria for considering applications for authorisations is set out in Article 5(1) of the electricity directive. It is an exhaustive list. I cannot add to it in legislation implementing the electricity directive. I am trying to stick to the exact meaning of the directive. The thrust of Deputy Sargent's amendment is covered in this section. In subsection (2)(b) it states that the commission must consider "the protection of the environment" and, in subsection (2)(d), "the efficient use of energy". The Deputy is asking for the commissioner to take into account the protection of the environment, not the protection and the efficient use of energy. These are general terms for sustainability and biodiversity.

I recognise that the Minister is quoting from notes that were prepared for her before I made my contribution. Section 17 does not specifically deal with the protection of the environment.

I accepted the Deputy's point that the section was not specific enough.

The section needs to be less specific because security of supply is a growing problem for Ireland. For sustainability we should takenote of that aspect. Sustainability is not just associated with environmental protection. It is as much an economic as an environmental principle and I hope it will be taken into account. The Minister referred to other sections of the Bill and I will not pursue the matter. However, it should be understood that sustainability is not just about environmental protection.

I talk about sustainability in terms of the environment.

That is restrictive.

Sustainability was the thrust of the Kyoto Convention.

That was the tabloid interpretation.

The Deputy views sustainability in terms of the economy and the environment.

A long-term economic view has been taken and we have a responsibility to do the same. That is why I tabled my amendment.

I move amendment No. 78:

In page 15, subsection (2), before line 1, to insert the following:

"(b) the extent to which the authorisation will contribute to competition in electricity and lead to increasingly competitive electricity prices for customers,".

The aim of Deputy Yates's amendment is to insert a reference to competition and prices for the consumer into the list of criteria the Minister can authorise for the consideration of applications. Safety and security, protection of the environment, the siting of a generating station and the efficient use of energy are all contained in her list. However, we feel it is important that reference should be made to the promotion of competition and reduction of prices for the end consumer.

The section is worthwhile because the list of criteria is good. Deputy Coveney referred to the safety and security of the electricity system, electric plant and domestic lines. It is important to include these on the list. The environmental aspect is also important, particularly with regard to emissions into the atmosphere, water or on land. The list of criteria outlined in section 17 is desirable and acceptable. It is important that the price of generating electricity is competitive and gives the customers and consumers value for money. It would be worthwhile to insert amendment No. 78.

This amendment refers to competition not the environment.

The list of criteria is wide ranging.

Deputy Yates's amendment states: "the extent to which the authorisation will contribute to competition in electricity and lead to increasingly competitive electricity prices for customers". Section 8(4) states:

In carrying out the duty imposed . . . . .. the Minister and the Commission shall have regard to the need:

(a) to promote competition in the generation and supply of electricity in accordance with this Act.

Competition is outlined in that subsection. Amendment No. 78 seeks to ensure that the granting of any single authorisation would be subject to checking whether it fit in and whether it impinged upon another authorisation where competition would or would not ensue and the giving of it.

Nobody will look for an authorisation if they do not believe they will get business. Getting into this area involves a considerable amount of money. Clearly there will be competition - that is the purpose of the Bill. The other part of the directive, which we will introduce in the autumn, promotes competition and that is laid out in page 10, that is, "to promote competition in the generation and supply of electricity in accordance with this Act".

Deputy Yates, Deputy Coveney and others want each authorisation to be subject to competitive criteria. That is the duty of the person supplying the electricity. If they do not have competitive prices, they will not get business and they will close. If a person or a firm can get electricity cheaper and a good service, they will go to that suppler. This issue is being brought to a micro level when, in fact, the onus of competition has been already inserted in the Bill and agreed on.

I accept the point the Minister made but I would like to put forward an opposite view. If a local authority put the collection of refuse out to tender, those providing this service would undercut one another. It appears, however, that the prices being charged by those providing this service have increased as has the charge to the citizen whose refuse is being collected. In this instance, I see the point the Minister made about what is in page 10.

The only reason those generating electricity are in the business is to make money and they will be anxious to make a profit. The commission should ensure the customer is provided with a service at a reasonable and competitive price. This should be specified as one of the criteria taken into account by the commission when issuing authorisations.

They are going into a market, not a protected industry. The purpose of this Bill - as well as the implementation in full of the directive - is to allow for competition. That is what this is about and not about giving protection to one provider vis-à-vis another. Encouraging competition is laid out in page 10 as one of the overriding criteria in terms of the purposes of the regulator. If competitors are to enter the market - if the lobbying is accurate, there will be competitors - potential prices will fall and people will make choices. If people want to pay high or low prices, they may do so. That is the way markets operate. They do not operate if protected by high walls. Competition will be one of the lodestars of a regulator to subject each particular authorisation or application for authorisation to its competitive outflow or effect, so to speak. It would not be possible for a regulator to do this.

I agree with the Minister that the Bill is about opening up the existing electricity production market to the private sector. Giving a slice of the cake, at present the sole preserve of the ESB, to the private sector is what the Bill is about. The people who will enter that market have no interest in customers. It is nonsense to pretend competition is about interest in customers; it is about interest in making a profit. That is the only reason they will invest in this area, and very high investments will be made.

It might happen that the customer will get a better deal but that is very much by the way. In this case, we are fairly certain, because of the way the ESB has operated to date, that the customer will pay more than they do now when there is competition. Maybe a select few customers will pay less but the majority will pay more when there is competition.

We have figures from the European study of electricity prices which show electricity prices in the Republic are cheaper than 17 of the other European countries studied. The only country which was not studied was Sweden for which they had no figures. Figures showed prices were 14 per cent and 18 per cent cheaper than in Northern Ireland and competition is likely to bring us up to that level rather than down. A competition audit for each authorisation, as suggested in the amendment, could make the situation worse rather than better.

I have no problem with Deputy Enright's amendment. It is worth pointing out, even if it is only by way of a gentle reminder, that the customer matters. Whether note is taken of that, we should at least say it. The Minister referred to my amendment, said the criteria were sacrosanct and could not be adjusted. Why are we entering into another debate? Would it not be better to cut to the chase, say this is the directive and get on with amending what we can?

I reserve the right to be able to say something.

Absolutely, but we should call a spade a spade. If these are the criteria in the directive, and it is not to be amended, then it looks as if we talking for the sake of it.

I do not want to live in a dictatorship in which we cannot open our mouths.

What I had to say was well worth hearing.

I do not know about that.

I think so.

It was very good but we will not ask for an encore.

My understanding is that the Minister is not accepting the amendment because this may be a competitive market anyway and if a company or a firm which enters it does not supply electricity at the right price, people will not buy it from them. That is the next stage. It is our responsibility to give authorisation initially.

It is the responsibility of the regulator.

It is our responsibility to decide on that responsibility. The Minister has laid out all the other criteria and there is no reason this should not be included if for no other reason, as Deputy Sargent pointed out, that it reminds us that it is the customer or consumer who is the important person at the end of the day. We have gone to great lengths to include everything else, so I do not understand why the Minister is objecting to including this as well.

I am doing what Deputy Sargent suggested, that is, being brief. I cannot accept the amendment.

I do not wish to be confrontational but the bottom line is, what is the Bill about and who are we trying to serve? I might be a little naive but I believe the bottom line is that we are here to serve the consumer. This is an effort to ensure that there is a clear directive in the Bill that the authorisation may be determined by the commission with reference to the criterion of "the extent to which the authorisation will contribute to competition in electricity and lead to increasingly competitive electricity prices for customers". The bottom line is the need for competitive electricity prices. The amendment should be accepted.

It is said often that markets, such as the electricity market, should be changed and we pay lip-service to the consumer. If we consider how the consumer fares under the present regime, we would argue for no change because Irish consumers fare better, as far as the price of electricity is concerned, than their European counterparts. Irish industrial and commercial consumers are about 20 per cent better off than their counterparts in Northern Ireland.

One may say that competition is good for the consumer but that is not necessarily true. There is supposed to be competition in Northern Ireland but it does not really exist. It exists in England but do consumers there get a much better price from producers than consumers here? The purpose of introducing competition is to give a slice of the market to other capitalists who want to invest their money in that particular enterprise. That is the object of the exercise. When that is being done on European, national and other levels, lip-service is paid to the consumer. The effect of the practice is that the consumer pays more when there is competition.

The Minister, the committee and I will have no control over prices subsequently. The famous, almost sacred, market which protects consumers will control it and we will see what the consumers get. If they have the same experience as consumers in Northern Ireland, they will get a much worse deal.

I have nothing further to say. I am taking Deputy Sargent's advice and I thank him for it.

I move amendment No. 79:

In page 15, subsection (2), between lines 10 and 11, to insert the following:

"(h) an authorisation holder not seeking to compel the Board to purchase all or any of the electricity generated by it under any circumstances save where the primary source of the energy used in the generation of the electricity comes within the definition of 'renewable or alternative forms of energy' as provided for in section 2(1).”.

The purpose of the amendment is to give the Minister power to ensure that people cannot produce much more electricity than that for which they have customers and compel the ESB to buy it. The Minister would have power to stop the commissioner telling the ESB that it must buy electricity above the amount which is required, that is 28 per cent. If less than half the number of interested parties who say they will build power stations in Ireland when this legislation is enacted do so, they will produce considerably more than 28 per cent of the market. The Minister should have the power to tell the commission not to compel the ESB to purchase that excess electricity.

The Deputy's amendment provides an exception where the primary source of the energy comes within the definition of renewable or alternative forms of energy.

That is correct.

The Deputy considers that these would-be competitors should not produce more than they can sell.

If they do, the ESB should not be compelled to buy the surplus.

The ESB will not be compelled to buy the surplus.

There is nothing in the Bill to stop the ESB being compelled by the commission.

To compel the ESB is not part of the commissioner's brief.

There is nothing to stop him doing so. The Bill does not state that the commission cannot do that.

There is nothing in the Bill which states that he must tell the ESB to purchase surplus electricity.

For example, under section 17(2)(d), the efficient use of energy——

Is the Deputy talking about stranded assets?

No, I am not talking about stranded assets. I am talking about excess production. If a producer has a market for only half of its electricity and it is capable of producing cheaper electricity than the ESB, the ESB could be told to close down one of its inefficient stations and to take the electricity from the other producer. It could happen. The Bill provides for powers to take such action.

No.

If I am totally wrong, I will be glad to hear it.

I am told the Deputy is wrong. The Attorney General's office has told us that the list of matters in section 17 is an exhaustive list. A regulator could not say to the ESB that it must buy electricity because a firm has produced more electricity than is required. Is that not what the Deputy is saying?

I am saying that will be the case under the efficiency clauses and the powers of the Minister.

Nobody will start a station and enter the market unless they are sure they have customers. That is what they are doing already. They are trying to sign up would be customers. However, it is not provided that the regulator should have the power to compel the ESB to take up any surplus electricity should a competitor find that it has produced too much.

What will happen to their surplus?

I do not know.

They will have surpluses.

I do not imagine they will generate surpluses. They must take account of the market and its needs each year. There are figures for what will be used this year and the projections for 2000, 2001 and 2002 based on estimated rates of economic growth. Any entrant to the market must take account of them. It is a foolish person who will go to the expense of generating electricity surplus to requirements.

The Bill outlines many powers of the commission and I am advised that there is nothing in the Bill which prevents the commissioner from telling the ESB to close down its inefficient station.

This reminds me of stranded assets.

The Minister would need to check it. The commissioner could say that the ESB must take much cheaper electricity in the interests of the customer, about whom we spoke earlier.

There is a transitional period in which stranded assets will be catered for. I introduced the issue of stranded assets because the Deputy referred to the stations which might be operating below par. There is a transitional programme in that regard but there is no power in the Bill for a commissioner to compel the ESB to take surplus electricity from another firm and to tell another firm what he was doing. It is not in his power to do so.

I understand the Deputy is genuinely concerned about the matter. If he wishes to leave the amendment until Report Stage, I will then have more definitive information on the matter.

I thank the Minister.

Amendments Nos. 80 and 82 are related and they may be discussed together by agreement.

I move amendment No. 80:

In page 15, subsection (4), line 13, to delete "this section" and substitute "subsection (3)”.

These amendments relate to the publication by the Minister of an order setting out the criteria for authorisation. The Bill, as published, would require that notice of intention to make an order setting out criteria should be published 28 days before the criteria will come into effect. It is considered that this would delay the initial grant of authorisations unnecessarily and so it is proposed to publish subsequent orders which would change the criteria for the grant of authorisation.

I move amendment No. 81:

In page 15, subsection (4), line 14, to delete "newspaper" and substitute "daily newspaper published and".

The Bill, in respect of the publication of applications for authorisation, refers to "a newspaper circulating in the State at least one month before the making of the order". In the interests of freedom of information, etc. amendment No. 81 seeks to include the term "daily newspaper" because newspapers have various publication dates. Advertising an application for authorisation in a free advertising newspaper which is published weekly, bi-weekly or monthly is not the same as advertising it in a daily national newspaper. In the interests of consistency, such information should be made available to consumers in a proper manner.

The amendment stipulates that advertisements should be placed in daily newspapers published and circulating in the State because there are a number of newspapers which are not published in this country but which do circulate here.

I accept the amendment. However, I must point out to the Deputy that he went on forever about the amendment having informing me that I could not do so in respect of an earlier amendment.

How often does the Minister accept an amendment? I had to make my argument in as strong and trenchant terms as possible in order to convince her to accept the amendment. I am delighted the Minister has accepted the amendment.

I am glad the Deputy is delighted.

I move amendment No. 82:

In page 15, subsection (5), line 16, after "order" to insert "proposed to be made under subsection (3)”.

I move amendment No. 82a:

In page 15, between lines 19 and 20, to insert the following subsection:

"(6) An order under this section shall not provide for the use of nuclear fission for the generation of electricity.".

On 12 May, I agreed to Deputy Sargent's request that an amendment would be prepared to insert a provision into section 17 that nuclear fission would be specifically excluded as an energy source. That is the purpose of the amendment.

Go raibh maith agat.

I am delighted that the Minister has accepted the amendment. However, I am puzzled about a particular matter and perhaps she can assist. There will be interconnection with Northern Ireland Electricity which, in turn, will be interconnected with Scottish companies producing electricity by means of nuclear fission. Is the Minister in a position to indicate how we can avoid the importation of electricity produced in this way into our system?

No. However, I will communicate with the Deputy about that matter in writing at a later date.

I suggest that the Bill should stipulate that it would be illegal to purchase electricity from a nuclear producer, either in Britain or further afield. This would ensure that people would not be paying for electricity produced by means of nuclear fission.

That is a weighty subject to which I will be obliged to give a great deal of consideration.

It is a subject which is addressed by the amendment. It is important to deal with this matter because otherwise we will be engaged in window-dressing. For example, Roadstone might decide to purchase its electricity from a nuclear power station operated by Scottish Power and import it through the interconnector which would be legal. In my opinion the Minister could table an amendment to make it illegal to purchase electricity produced by means of nuclear fission. I am sure the EU would object if she took such action but we could deal with such opposition as it arose and publicise the non-nuclear nature of the Republic's electrical power system.

I will return to this matter on Report Stage.

With Deputy Stagg, I believe there might be a number of implications from this amendment. For example, a number of Irish contractors benefit from work they carry out at Sellafield and other nuclear installations. Grey areas already exist in Ireland in respect of the nuclear industry. If the Minister could clarify the implications involved and our ability to stand over this new provision, it would help us to see whether it is window-dressing or whether it means something.

Let us be clear, the Deputy was responsible for proposing the window-dressing.

I was not proposing window-dressing; I proposed that we copperfasten our national policy in this area.

I will communicate further with the Deputies on this matter.

For the information of Members, our meeting tomorrow will commence at 4 p.m. and it will continue until 8.30 p.m. Is that agreed? Agreed.

That should knock the bottom out of it.

Is it agreed to suspend proceedings until 5 p.m. and continue our deliberations until 8.30 p.m. tonight?

I suggest that we adjourn at 7 p.m.

Is that agreed? Agreed.

Amendments Nos. 83 to 85, inclusive, are related. Amendment No. 87 is cognate with amendment No. 84 and amendment No. 88 is cognate with amendment No. 85. Amendments Nos. 83 to 85, inclusive, and 87 and 88 to be taken together by agreement.

I move amendment No. 83:

In page 15, subsection (2), line 23, to delete "is of the" and substitute "reaches a reasoned".

I will discuss amendments Nos. 83 to 85, inclusive, together but then they can be dealt with separately.

Amendment No. 83 deals with the modification of a licence or authorisation. In the Bill it states "Where the Commission is of the opinion that a licence or authorisation should be amended. . . . ". My amendment seeks to reassure the applicant that it is more than just an opinion and that the commission reaches a reasoned opinion that can be laid out.

With regard to amendment No. 84, as the Bill stands, the authorisation or licence can be amended without the consent of the holder of the licence. Is that being a bit harsh? Should the licence holder be consulted in regard to the amendment of a licence?

Amendment No. 85 is the most constructive of these three amendments because it states: ". . . . .to insert "or having created, through independent arbitration involving the holder, an agreed basis for amending the licence or authorisation". This amendment would ensure that fair play would be seen to be done in the usual open, transparent and accountable way that we talk about. It would also ensure that all sides would understand that there is an independent procedure that must be followed. I offer these amendments for the Minister's consideration.

In amendment No. 83 the Deputy asked that the commission's opinion would be a reasoned one. The commission is subject to a judicial review process at any time. It is the right of any citizen and it is referred to under the section of this Bill relating to appeals. Natural justice requires that all opinions would be reasoned and, therefore, it is not necessary to say it would be reasoned.

Amendment No. 84 would mean that when the commission considered it appropriate to amend a licence or authorisation it could only do so if it has the consent of the licence or authorisation holder. In section 19 procedures to be followed where a holder objects to a modification are outlined. First, the commission tends to give prior notification of a modification. Second, public hearings take place where the commission considers it is warranted. Third, section 28 outlines an appeals system that can be employed to oppose any modifications. Earlier someone asked me to abolish the appeals system. I refused because I believe every system needs an appeals mechanism. It makes sense to be able to appeal if you cannot pay your water rates. An appeals system is even more important in this case.

Modifications to licences or authorisations resulting from public service applications or transitionary entrance orders are not subject to appeal as they would result from Government policy. There might be occasions where the commission considers it appropriate to amend licences or authorisations. There are many options available. There are the appeals system, hearings, prior notification and any citizen has the right to opt for a judicial review. Section 28 provides for an appeals mechanism.

Amendment No. 85 states: ". . . after 'authorisation' to insert 'or having created, through independent arbitration involving the holder, an agreed basis for amending the licence or authorisation"'. This amendment proposes the setting up of an independent arbitration board or service. We already have an appeals system so who will be on an arbitration board? The appeals system is the best option. For example, if a person wants to lodge an appeal for planning they can go to An Bord Pleanála. It is natural to appeal a decision and every citizen has the right to a judicial review. The appeals system is the best option. Appellants must also give notice or publicise their wish to appeal. These are necessary safeguards. Under the Freedom of Information Act all relevant documents can be obtained; therefore, any person making an appeal would be fully informed.

Amendments Nos. 87 and 88 repeat what is sought in amendments Nos. 83 to 85, inclusive. Therefore, the arguments that have been made stand.

As usual the Minister is very convincing in her arguments. She has given some comfort to anyone concerned with this issue by citing the appeals structure that is in place. Does she view the commission as consultative or open to consultation?

Yes. I do not view the regulator as someone who will lock himself in a room and become a recluse. I would view his office as being open. I note that Etain Doyle operates her office in a remarkably discursive and open manner.

On that basis I withdraw my amendments.

Most of the discussion on these amendments is more relevant to the next section. Section 19 does not refer an appeals system.

There is an appeals system.

I have not found it in section 19. There is room for modifications. A person can object to the person who is making the modification but that is not an appeal.

There is an appeals system.

Where?

On page 20.

It is not referred to under section 19.

It comes under the heading "Establishment of Appeal Panel".

Does it deal with modifications as well?

It refers to a person whose application for a licence is refused and a person who is the holder of a licence or an authorisation who is already the holder and who wishes to appeal against a decision. If one is a holder, one would be appealing against an amendment to that.

It might not be - it might be a new application.

It also refers to modifying the licence. The reason I was so sure about that is that it was put to me to do away with the appeals system.

I move amendment No. 86:

In page 15, subsection (3), to delete lines 30 to 32, and substitute "under section 38 or 39”.

This amendment will allow the commission to modify conditions or requirements in both licences or authorisations without consent if necessitated by an order made by the Minister regarding either public service obligations or the transitional arrangements. The subsection of the Bill, as published, would not allow such modifications to authorisations if necessitated by a public service obligation order. The Minister's prerogative to require a modification to a licence or an authorisation stemming from Government policy on the public service needs to be applicable to both licences and authorisations. That is what is wanted as regards the transitional arrangements or the PSO - the public service obligation. It is fair that the Minister would want to see the carrying out of arrangements under public service obligations or under the transitional arrangements.

When dealing with section 14(4), I expressed my concern about a permit granted before 1 September 1998. Section 18(2) states:

Where the Commission is of the opinion that a licence or an authorisation should be amended it may do so with or without the consent of the holder of the licence or the authorisation, as the case may be.

The Minister is probably convinced that is all right, and I do not doubt that in most instances it will be. However, I have concerns where agreements have been entered into as regards the granting of permits, licences or authorisations, that these can now be amended or altered by the commission. It strikes me as being ——

Arbitrary.