Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).

Debate resumed on amendment No. 35:
In page 12, between lines 36 and 37, to insert the following subsection:
"(4) Where a motion is laid before either House of the Oireachtas proposing to annul any regulation made under this Act and is signed by not less than seven members of that House, the regulation shall stand annulled after the elapse of 10 sitting days unless that House has voted to approve the regulation.".
—(Deputy J. Mitchell.)

So far as I am concerned, the amendment to section 6 has been debated fully and we have heard the Minister's comments on it.

Question put: "That the amendment be made."
The Committee divided: Tá, 45; Níl, 56.

  • Ahearn, Therese.
  • Allen, Bernard.
  • Barry, Peter.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Connaughton, Paul.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Currie, Austin.
  • Deasy, Austin.
  • De Rossa, Proinsias.
  • Dukes, Alan.
  • Farrelly, John V.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Ryan, Seán.
  • Sherlock, Joe.
  • Finucane, Michael.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Garland, Roger.
  • Higgins, Jim.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kenny, Enda.
  • Lee, Pat.
  • Lowry, Michael.
  • McCormack, Pádraic.
  • McGrath, Paul.
  • Moynihan, Michael.
  • Noonan, Michael.
  • (Limerick East).
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • Pattison, Séamus.
  • Spring, Dick.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine.
  • Timmins, Godfrey.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Browne, John (Wexford).
  • Calleary, Seán.
  • Clohessy, Peadar.
  • Coughlan, Mary Theresa.
  • Daly, Brendan.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Fahey, Frank.
  • Fitzgerald, Liam Joseph.
  • Flood, Chris.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lyons, Denis.
  • McCreevy, Charlie.
  • McDaid, Jim.
  • McEllistrim, Tom.
  • Morley, P.J.
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Malley, Desmond J.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Wallace, Mary.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers: Tá, Deputies Flanagan and Boylan; Níl, Deputies Dempsey and Clohessy.
Amendment declared lost.
Section 6 agreed to.
SECTION 7.
Amendment No. 36 not moved.

I move amendment No. 37:

In page 12, after line 46, to insert the following subsection:

"(4) (a) Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made.

(b) In the case of orders other than those referred to in subsection (3), if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.".

Amendment No. 37 has been discussed already. Does the Deputy wish me to put the question?

May I ask a question? I know we have debated the amendment. The Minister indicated her possible willingness to accept half of my amendment, the first half, simply requiring that regulations be laid before each House of the Oireachtas. As she had difficulty in accepting the second half, can she say whether she has made up her mind in relation to the first half?

Yes, I am favourably disposed to the first part of the Deputy's amendment. In principle it is appropriate that every order be laid before each House of the Oireachtas. Perhaps I may give an undertaking in that regard. I have not had an opportunity of going over the wording with the parliamentary draftsman. I will accept either this wording or come back on Report Stage with appropriate wording to do precisely this.

On that basis, and expressing my gratitude to the Minister of State, I will withdraw my amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."

Section 7 (2) reads:

The Minister may, by order, revoke or amend the First Schedule or the Second Schedule.

This is a very far-reaching power that should not be reserved solely for the Minister. After all, we must remember that the Minister and this House are delegating powers to the agency to deal with these matters.

The First Schedule contains very important provisions. I will not read it in total but just pick a couple of items therefrom. Basically the First Schedule sets out activities which will come under the aegis of the agency. It deals with such matters as the extraction, production and processing of raw asbestos, the manufacture of glass or mineral fibre and so on. I know there was a purpose in compiling these activities. Indeed that First Schedule lays out the parameters within which the agency should commence their operations. The Minister is reserving to herself power to change these parameters without any reference to the agency. That is a very bad subsection. I propose to table an amendment to it on Report Stage.

There is an amendment to this effect tabled by Deputy Gilmore. Perhaps Deputy Garland misunderstands the purpose of this provision. I would remind Members that an order made to amend the First or Second Schedule, either to make an addition to or remove something from it has to be approved positively by both Houses of the Oireachtas before taking effect. The Deputy may be concerned as to why a Minister might wish to have power to remove something from the schedule. In relation to the Second Schedule it could be a case where legislation becomes defunct because it has been replaced by new provisions. In relation to the First Schedule some activity could have become emission-free and therefore would not require licensing and it would no longer be necessary to keep it as one of the licensing matters for the agency. It is for that reason that this provision is there. The safeguard is that the order would have to be approved by the House. In all the circumstances that is reasonable.

The affirmative procedure applies to the amending of the schedules, the amending of the composition of the selection committee for the director general, the extending of the agency's powers under other legislative provisions such as the water pollution legislation and so on. Are there any other areas that would require an affirmative resolution?

Basically the orders have to be approved where we regard the matters as fundamental to the operation of the agency. Certainly the administrative and day-to-day matters are not included. Because of the way this House conducts its business it would be virtually impossible, if all regulations had to be positively affirmed by the House, to get anything done. Because we believe that nothing could be deleted from the First or Second Schedule or that nothing should be added to further burden the agency's work unless it was approved by the Oireachtas, we felt it important to put in a positive affirmation in relation to those matters. The method of selecting the director general and the directors is so fundamental to the independence of the agency that that should not be changed either without the positive approval of the Oireachtas. I have been informed that there are no other additional matters referred to here.

Section 7 agreed to.
NEW SECTION.

I move amendment No. 38:

In page 13, before section 8, to insert the following new section:

"8.—(1) Every order or regulation made under this Act shall be published in draft form in a manner to be prescribed, and notice of such publication shall be given in a manner to be prescribed.

(2) Any person may comment in a manner to be prescribed upon such draft order or regulation within a time specified in the notice referred to in subsection (1).

(3) Any such comments shall be taken into account in making the order or regulation in its final form.

(4) The procedure specified in this section shall apply with necessary modifications to the preparation of a draft order under section 7 (3).".

This amendment seeks to insert a provision to allow for public comment on regulations. We had a long discussion on the previous series of amendments in relation to the powers of this House to review, to express a view on, and decide ultimately on regulations that are secondary to primary legislation. This amendment seeks to broaden the scope of the Bill beyond the range of this House to allow interested members of the public to see draft regulations and to provide a mechanism whereby their comments can be heard. I am conscious that my amendment might not be perfect in every detail but I am anxious to have the principle accepted by the Minister of State and there will be no difficulty in improving the drafting. The amendment seeks that:

"8.—(1) Every order or regulation made under this Act shall be published in draft form in a manner to be prescribed, and notice of such publication shall be given in a manner to be prescribed.

That is deliberately vague to allow the Minister to draw up the mechanism whereby public notice of regulations could be brought about. Subsections (2), (3) and (4) of the amendment say:

(2) Any person may comment in a manner to be prescribed upon such draft order or regulation within a time specified in the notice referred to in subsection (1).

(3) Any such comments shall be taken into account in making the order or regulation in its final form.

(4) The procedure specified in this section shall apply with necessary modifications to the preparation of a draft order under section 7 (3).".

Basically the mechanism sounds complex but the principle is simple and one which I hope will enjoy wide support in the House. It is to allow the large number of interested parties who are very concerned about environmental legislation to see draft regulations and to have a say in them. The end result would be an improvement in the secondary legislative process, whereby people could comment in advance of regulations rather than criticise them when they are enshrined. I hope the Minister will accept the principle.

When we began the debate yesterday there was a good deal of legitimate criticism of the length of time it took to get this Bill to this stage. I am concerned that we still have not got this Bill enacted. I hope we will have it enacted soon. If we were to go down the road suggested by Deputy Howlin we would add further delays to the effective operation of this agency. If the Deputy's amendment was accepted even commencement orders would have to be drafted and the draft would have to go for public consultation and so on. That would lead to untenable delays and to an unnecessary bureaucratic and expensive process that would not have much benefit at the end of the day.

I accept that the way this House deals with secondary legislation through regulations and orders must be looked at. We should look at procedures generally to see how we can improve them in order to perhaps be able to have more meaningful discussions on regulations. I accept that it is virtually impossible to annul regulations in this House unless parties give their Private Members' time over to it and I do not remember ever having such a debate in this House. As part of the overall approach to Oireachtas reform to which the Government are committed we need to look at the way in which this House deals with subsidiary legislation. It is not appropriate to add this provision to this Bill as it would have little benefit and would certainly lead to long delays, expense and a lot of red tape and bureaucracy. Obviously any Minister of the Government consults fairly widely in the drafting of legislation and regulations. Environmental organisations and those concerned with the environment have fairly free access now to Government Ministers, Departmental officials and so on. It is not as if Ministers and Government operate in a vacuum removed from the outside world.

There is also a power in the Bill for the agency to give advice, make suggestions on recommendations for regulations to any Minister if they feel it necessary. I hope the agency will take on board the provisions in the legislation and where necessary will not be shy about making recommendations to the Government or Ministers. In all the circumstances, on balance, this amendment cannot lead to any great improvement.

I am disappointed with the Minister's response to this reasonable amendment. I, and I am sure Deputy Howlin, accept that putting this amendment into the Bill would undoubtedly result in some small delays, but I suggest that these would be reasonable delays. It is very important that we get things right. Rushing at something and then getting it wrong is not the way forward. Our motto should be to "hasten slowly", but not too slowly; one has to strike a balance. However, I believe the balance of advantage lies with Deputy Howlin's amendment.

I am very disappointed with the Minister's response because she did not address the principle behind the amendment. Even if the Minister did not accept the mechanism, I thought she would have accepted the principle. This amendment is based on the principle of openness, which is very basic. We are critical of the way regulations on legislation are monitored by this House. I sought to broaden this, to allow the general public to comment on the regulations. A number of agencies in the environmental sphere in particular employ full-time staff and are very concerned about the regulations affecting the environment on foot of this Bill. They have a right to have their voices heard. It would be more sensible to have their voices heard before the regulations are finalised and are in draft form.

I do not accept the Minister's assertion that this suggestion is of little benefit and that it would be too difficult and cumbersome to implement. I did not suggest a mechanism and I left it to the Minister to finalise arrangements, but it could be done simply, for example, by a newspaper column listing the regulations available in draft in the Department and inviting those who wish to see them to apply to the Department before a given date. That is one suggestion but I am sure there are others. It is a useful way of democratising the way we conduct our business. I thought the notion of openness and transparency in Government was to be the hallmark of this latest incarnation of the Fianna Fáil-PD Coalition. I believe it would be a good signal by the Minister to say she was willing to allow all the groups and individuals to involve themselves if, they are so minded, in the legislative process by permitting them to comment before the regulations are finalised.

Does the Deputy wish me to put the question?

Has the Minister not something else to say?

I am anxious to make progress. Therefore I do not think it is necessary to keep repeating myself. The Deputy has made some valid points. We will have to make a whole plethora of regulations to deal with housekeeping matters. If we had to go through the process of inserting an advertisement in the newspapers inviting people to comment on the regulations that would mean that officials would have to be made available for a certain period of time to facilitate the public.

Democracy is very cumbersome and tiresome.

Democracy allows the people's representatives to make decisions on their behalf.

We do not.

There is a power to annul regulations. It is not the case that the Minister's regulations cannot be annulled.

Will we have time to do so?

If this House does not organise its affairs in such a way to allow us to do that, that is certainly not my fault.

It is the Minister's fault more than any other person present.

As I said on a number of occasions, Oireachtas reform is an urgent priority. We all have to ensure that we reform the Houses of the Oireachtas so that debates are more meaningful. A great many good suggestions have been made as to how we can reform the Oireachtas to make it more relevant but I do not believe it would be necessary in the context of this Bill to give the public the opportunity to comment on the housekeeping matters such as commencement dates, regulations to allow the agency to operate and so on. We cannot have it every way. We cannot criticise the fact that commencement provisions are not satisfactory and at the same time say the procedures must allow for public consultation on every order and regulation, which would lengthen the time considerably.

An advisory committee to the agency will comment on many matters. It will comprise representatives of environmental organisations among others who have an interest in the work of the agency. That advisory committee will have specific powers to advise the Minister of the day on environmental issues, on the operation and role of the agency and other matters. It is not as if people will ignore advice because in my experience there is now fairly widespread consultation with interested groups.

Earlier today there were calls for the introduction of regulations under the Air Pollution Act, 1987. There is a great deal of interest in this area and these matters are discussed widely. It is not as if they grow out of nowhere. Quite honestly, the difficulties the Deputy has experienced in relation to regulations result more from the way we order our business than from the provisions of this Bill.

Amendment put and declared lost.

I move amendment No. 39:

In page 13, between lines 10 and 11, to insert the following subsection:

"(3) Where an offence under this Act is committed by a person acting on behalf of a body corporate but without the knowledge or consent of that body corporate that person shall also be guilty of an offence.".

The amendment is self-explanatory. It was tabled as a result of experiences of persons who acted illegally on behalf of a body corporate not being prosecuted.

I am not quite sure of the purpose of this amendment. If it is suggested that a person who acts illegally without the permission or knowledge of a body corporate is not covered by the Act, that is not correct because section 8 (1) clearly specifies:

Any person who contravenes any provision of this Act or of any regulation made under this Act or of any order made under this Act or of any notice served under this Act shall be guilty of an offence.

That covers everybody. There may have been a misunderstanding that somebody who was not an employee of the agency might not be covered, and if that is the reason for the amendment, the case is covered. On the other hand, if the purpose of the amendment — it is not clear from what the Deputy said what its purpose — is to make a body corporate responsible for the activities of somebody who acted without its knowledge or permission, that is unfair. If somebody acts in a certain way without the knowledge of some other person or body I do not believe it is appropriate that the other person or body should be held responsible. That would be grossly unjust.

The purpose of section 8 is to ensure that those who commit an offence, whether acting on their own behalf or in their capacity as a director, manager or whatever of a body corporate, can be found guilty of an offence under this Bill when enacted. There are no exclusions. All possible cases are covered, with the exception of somebody who acts without the knowledge or consent of the body corporate because somebody or a body corporate cannot be made responsible for the activities.

I accept the Minister's point. The scope of section 8 (1) is particularly wide in that it makes any person who contravenes the provision of the Bill guilty of an offence. Will Departments of State be included under the provisions of subsection (1)?

Yes, they are covered.

Perhaps we are all getting a little tired towards the end of the day. I think the Minister has got the wrong end of the stick. I have read the amendment several times and I should like to read it into the record:

"(3) Where an offence under this Act is committed by a person acting on behalf of a body corporate but without the knowledge or consent of that body corporate that person shall also be guilty of an offence.".

My recollection is that the Minister was stating the opposite.

She covered both ends.

This amendment seems to cover the person who acted without the authority of the body corporate. Surely it is reasonable that such a person should be found guilty of an offence. Perhaps the Minister will say whether this is covered sufficiently in the Bill as it stands.

Of course it is covered. Section 8 (1) is so general that it literally includes any person who contravenes any provision of the Act. Regarding Deputy Howlin's question about a State employee, that is covered in section 3 (5) which states that this Act applies,inter alia, to activities operated by or in the charge of the State.

The amendment arose from experience under the Companies Act. Employees of companies were allegedly acting on behalf of those companies and as a result joined with the company. The amendment was put down for that reason.

Is the Deputy of the opinion, having listened to the Minister, that the amendment is not likely to succeed?

The purpose is to ensure that the Minister is satisfied.

I am satisfied. The power in section 8 (1) is so general that it applies to every person, with no exclusions.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.

Amendment No. 40 is in the name of the Minister. Amendment No. 42 is related and they may be taken together for discussion purposes. Agreed.

I move amendment No. 40:

In page 13, subsection (1) (a), line 17, to delete "six" and substitute "twelve".

This is essentially a drafting amendment. The purpose is to bring the maximum term of imprisonment for summary offences into line with the provisions of other statutes. Where consecutive sentences are imposed for two or more offences the court has power to impose up to two years under section 12 of the Criminal Justice Act, 1984. The deletion of subsection (2) is consequential. The substitution of 12 months for six months makes it redundant. Section 13 of the Criminal Procedures Act, 1967 which provides for the summary trial of indictable offences, as amended by section 17 of the 1984 Act, already extends to all summary offences where the maximum fine is £1,000 and the maximum term of imprisonment is 12 months.

Will the Minister explain why the Attorney General changed his mind on this amendment since it was debated in the Seanad?

I sought to have the terms of the penalty and prison sentence set at the highest level, but we are obliged in these matters to take the advice of the Attorney General. On reflection——

Mature reflection.

——the Attorney General decided that they should be increased in line with other statutes. We are very happy with that.

For once I can wholeheartedly congratulate the Minister. One could ask if 12 months is too short a time for some horrendous pollution offences which have been caused by gross carelessness, to say the least. All the wrong kinds of people are imprisoned, the people who break windows out of desperation and the drug addicts, while the very people who should be in jail, tax evaders, polluters and so forth, are not. If this amendment has the effect of righting the balance, I support it enthusiastically.

Amendment agreed to.

Amendment No. 41 is in the names of Deputies Mitchell, Carey and Allen. Amendment No. 43 is related and both amendments may be taken together for discussion. Agreed.

I move amendment No. 41:

In page 13, subsection (1) (b), lines 20 and 21, to delete "not exceeding £10,000,000" and substitute "commensurate with the full cost of returning the environment to its original state or a reasonable equivalent".

I wholeheartedly support the amendment. It is very hard to arrive at a figure. In the case of some of the more serious ecological disasters which have occurred throughout the world in recent years, for example, the destruction of the Alaskan wilderness by oil pollution some years ago, the clean-up bill was tens of millions. It is a fair conclusion that the fine imposed must be commensurate with the full cost of returning the environment to its original state or a reasonable equivalent. If, of course, there is wholesale destruction it is not possible to return the environment to the original state. I do not think any figure set can envisage environmental damage on the scale we have seen in recent times. A serious marine accident would have disastrous consequences for our coastline. To leave it open-ended would be better on the principle that the polluter pays. The sum of £10 million would be a very severe fine, but for the huge corporations who are guilty of destruction on an unprecedented scale even that level of fine would not be enough to allow the Government or any other agency to restore a damaged wilderness. For these reasons there is great merit in reflecting on the amendment put forward by Fine Gael.

I support the amendment. I agree with Deputy Howlin that while £10 million may seem a lot of money it is buttons to some of the very large corporations. It is better to leave it open-ended. The only reservation is that in 99 cases out of 100 it is probably a very large fine. Perhaps this will signal something to the courts and encourage them to fine people very large sums. I hope the necessity to fine somebody anything approaching £10 million would be very rare. Nevertheless the balance of advantage lies with leaving it open-ended.

I would be disappointed if the Deputy sought to drop the fine of £10 million. The inclusion of a fine of that level gives the legislation much strength. The fine is in addition to requirements under the Third Schedule of the Local Government (Water Pollution) Act to put a sum of money aside to undo the damage done or to restore the environment if possible. Perhaps the courts should have regard to the cost of restoring the environment when imposing a fine. I am keen that the courts should impose tough fines on those convicted of pollution offences. The courts must assist in making such fines a deterrent to those who would pollute our environment. I would not be happy about dropping the £10 million provision. That would give the wrong signal and would be a retrograde step. It is in line with the fines specified in the legislation dealing with pollution at sea. I should like to take advice from the Attorney General on the question of requiring the courts to link the fine to the cost of restoring the environment and I will come back to this matter on Report Stage.

Deputy Howlin for a final brief comment.

The form of words to be arrived at on Report Stage might include a sum not exceeding £10 million or "such greater sum commensurate with the full cost of returning the environment to its original state". Perhaps we can include the figure about which the Minister is concerned and allow a greater sum in the event of a crisis of the scale we have already spelled out to the House.

Progress reported; Committee to sit again.