Amendment No. 1 has been ruled out of order as it is outside the scope of the Bill.
Tribunal of Inquiry into Certain Planning Matters and Payments Bill 2004: Committee and Remaining Stages.
SECTION 1.
Amendment No. 1 not moved.
Section 1 agreed to.
SECTION 2.
Amendments Nos. 2 to 4, inclusive, have been ruled out of order.
Amendments Nos. 2 to 4, inclusive, not moved.
Question proposed: "That section 2 stand part of the Bill."
I wish to raise a concern I have about this section. The Minister responded to the question I asked on Second Stage about why the Bill was necessary in the first place by saying the legal advice he has is that the discretion provided for in the terms of reference could not be exercised without this legislation. The discretion provided in section 2 applies only to paragraph J(6) of the terms of reference.
The terms of reference, however, in other sections confer discretion on the tribunal. In paragraph J(1), for example, the tribunal is being given discretion to proceed as it sees fit to conclude the modules listed. There is an implied discretion in subparagraph J(1)(g) in regard to modules which are interlinked to those already listed. Presumably, the tribunal will have to exercise discretion as to which modules are interlinked and which are not. In paragraph J(2) discretion is being given to the tribunal to decide which additional matters will go to public investigation. It is required to do that before 1 May 2005, but the discretion will rest with the tribunal as to which matters go to public investigation. In paragraph J(3) it is purported that a discretion is being given to the tribunal whereby if it comes across anything it thinks it should pursue, it may do so. In paragraph J(5) the tribunal is being given discretion to conduct hearings in regard to compliance or non-compliance.
The problem is the Bill only underpins the discretion in paragraph J(6). It does not underpin the discretion in paragraphs J(1), J(2), J(3) and J(5). Given that the Bill is silent about the discretion which the terms of reference appear to give to the tribunal under those sections, where stand those discretions? The Minister said the legal advice is that the discretion cannot be exercised without legislation. Does that mean if the tribunal exercises discretion in regard to any of the matters under paragraphs J(1), J(2), J(3) and J(5) it could be challenged on the grounds that the Bill giving legal protection to the discretion does not provide for discretion under those paragraphs?
Paragraph J(6) states that the tribunal may use its own discretion in respect of any matters within paragraphs J(1), J(2) and J(3) and these amended terms of reference decide. To go back to the point I made about the legal view, the Attorney General took the view and gave very strong advice on the need to underpin this discretion with legislation and the tribunal agreed with that view.
I raise this issue because there is no point getting this wrong. We have seen the amount of litigation which arises from the proceedings of the tribunal. In fact, I read a report in this morning's newspaper that there is yet another challenge which, of course, people appearing at the tribunal are entitled to make and to exercise their right. I am concerned a loophole is being created here. Statutory protection is being given to the discretion under paragraph J(6) but not under the other paragraphs.
For example, paragraph J(4) states that notwithstanding any other provision of these terms of reference, the presentation to the Clerk of the Dáil of an interim report or reports, as the case may be, and of the final report and the matters referred to in paragraphs J(1)(a) and so on shall constitute compliance by the tribunal with all of its terms of reference as hereby amended and no further investigation or report shall be required of or from the tribunal on any other matter. It would appear that the only things the tribunal is required to report on are the modules already listed and the matters related to them. Under the paragraphs to which I referred, it seems that under the terms of reference, the tribunal is being given discretion that it could, at its own discretion, decide to investigate other matters. For example, in regard to the decision which must be made by 1 May next on what matters will go to public investigation, it would appear the intention is that it could include matters outside the list contained in paragraph J(1).
The problem is that the only discretion being protected by statute is that under paragraph J(6), that is, the discretion whereby if the witness is too old or too sick, if it looks as if it will go on forever or if there is no point investigating a matter. These are basically the common sense provisions which are being protected by statute.
I raised the issue of Glending before with the Minister, about which he has spoken. If the tribunal gets a complaint about Glending and would like to have a look at it, it seems that because of the confining of the protection to discretion to paragraph J(6), it would not be possible to do that. Somebody could challenge it and could probably argue that because paragraph J(6) was the only paragraph covered by primary legislation, the intention of the Oireachtas was that discretion would be confined to paragraph J(6).
It actually does not arise. The discretion available to the tribunal on the matters it may examine are very wide. The tribunal could go right back to the beginning of planning in this country and could review anything in any part of the country, including Glending, so it is not excluded. What the legislation and the section in question do is give it the operational common sense discretion to which the Deputy referred. The Deputy is right that it is common sense discretion but the matters and the time over which the tribunal could investigate have been open from day one. The irony of the way the legislation is drafted is that the one place where the tribunal does not have discretion is in terms of common sense.
In the earlier debate I gave the example that somebody could argue a councillor or somebody got a payment of €250 or £250. As things stand, the tribunal would have no option but to look into that, to have an order of discovery and to spend €10,000 or whatever on it. The tribunal does not possess the common-sense provisions whereby it could say that would be too resource-hungry a matter to examine. That is the point. If one wants to give the tribunal the right to have common sense, which we did earlier when we discussed its terms of reference, it must be underpinned by legislation now lest the exercise of common sense itself becomes the subject matter of a challenge.
As regards the issue of time, the tribunal has had that discretion under the original legislation which established it. The Bill before us is to give protection to what the Deputy rightly calls the "common-sense provisions" that most people will regard as existing in the established arrangements. It will give legislative effect to that and will remove it from legal challenge.
As regards the other issue raised by the Deputy, if, for example, the tribunal decides that an interrelated matter is occurring outside County Dublin, that is a matter in which the tribunal already possesses discretion to become involved.
Question put and agreed to.
SECTION 3.
Amendments Nos. 5 and 6 have been ruled out of order.
Amendments Nos. 5 and 6 not moved.
Section 3 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Deputies who participated in the debate. In particular, I thank Deputies O'Dowd and Gilmore who attended the House for the entire debate on the terms of reference. Many of the common-sense proposals that have been made here are matters which the Joint Committee on Environment and Local Government should take up. If it does so, I will be delighted to sit in on its meetings. Some of the proposals that have been made today should be taken up by that committee. I urge Deputies to be mindful of the amendments I have suggested in a general sense for tribunals, which could appropriately be taken up when the tribunals Bill comes before the House next year.
Question put and agreed to.