Dáil Éireann debate -
Wednesday, 28 Jun 2023

Vol. 1041 No. 1

Historic and Archaeological Heritage Bill 2023: Instruction to Committee

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Malcolm Noonan)

I move:

That Standing Order 233(2) is modified to provide that it be an instruction to the Select Committee on Housing, Local Government and Heritage, in relation to the Historical and Archaeological Heritage Bill 2023, that the Committee has power to make amendments to the Bill which are outside the scope of the existing subject matter of the Bill, in relation to:

(a) the Foreshore Act 1933 to provide a possible pathway for existing foreshore applications received under the Foreshore Act 1933 but not decided to move to the new regulatory system established in the Maritime Area Planning Act 2021;

(b) the Lough Corrib Navigation Act 1945 to reinstate functions of the Lough Corrib Navigation Trustees that were removed as a result of the repeal of some of the Drainage (Ireland) Act 1856, under which the Lough Corrib Navigation Trustees were established;

(c) the Planning and Development Act 2000 to clarify the position of projects already consented prior to the introduction of new planning measures for development in the maritime area and to remove anomalies and clarify terms;

(d) the Valuation Act 2001 to allow local authorities to deal with consequential overpayments or underpayments of rates on foot of decisions on appeals to the Valuation Tribunal or court decisions;

(e) the Local Government Act 2001 to (as amended by the Local Government (Maternity Protection and Other Measures for Members of Local Authorities) Act 2022) to clarify that a Member who has caused a temporary absence and sought a temporary substitute under Section 19A of the Act could not continue to exercise the functions of a Member during the period of their absence;

(f) the Local Government Rates and other Matters Act 2019 to refine the process of levying rates on the appropriate valuation list and subsequent billing; to simplify the process for notification of changes in status of liable persons and properties and for the rates database to be amended accordingly; to clarify that only a liable person who owns a relevant property and who proposes to sell the property is required to discharge any rates and interest on overdue rates which is due and payable rather than previously liable persons; to clarify that any rates and interest on overdue rates due and unpaid by a liable person who owns a relevant property, and not other liable persons, would remain a charge on the property; to clarify the rights to enter a rateable property that does not contain a dwelling and to include the provision of additional repeals; and

(g) the Maritime Area Planning Act 2021 to clarify the requirement for a Maritime Area Consent and to facilitate the identification of a suitable replacement Maritime Area Consent holder in specified circumstances;

and to change the title of the Bill, and for consequential amendment of the long title to reflect the content of the Bill, and make other consequential amendments required to take account of the changes above.

The purpose of this motion is to instruct the Dáil, in committee, that Standing Order 233(2) is modified to provide that the committee has the power to make amendments to the Historic and Archaeological Heritage Bill 2023, which are outside the existing subject matter of the Bill. This is required in order that I can introduce Government amendments to the Bill on Dáil Committee Stage, which commences tomorrow afternoon. As set out in the motion, there are amendments to the Foreshore Act 1933, the Planning and Development Act 2000 and the Maritime Area Planning Act 2021 which are linked and facilitate the transition to the new maritime regulatory regime. There are also amendments to a number of local government Acts, namely the Lough Corrib Navigation Act 1945, the Local Government Act 2001, the Valuation Act 2001 and the Local Government Rates and other Matters Act 2019. These local government-related amendments do not introduce any policy change and are generally technical or clarifying in nature.

The amendment to the Foreshore Act 1933 provides for existing applications under that Act to move to the new regulatory system established under the Maritime Area Planning Act 2021, to maximise the opportunities available in those more modern maritime consenting structures.

The amendments proposed to the Planning and Development Act 2000 provide that, where a proposed development for electricity transmission infrastructure is already licensed under the Foreshore Act, it does not require additional consent under this Act. They also clarify that the reference to land in certain contexts refers to land in the maritime area; disapply the requirement for a maritime area consent for strategic infrastructure development where the applicant is already in consultation with An Bord Pleanála; and clarify the position of development consented to before the new regulatory provisions of the Maritime Area Planning Act came into force.

The amendments to the Maritime Area Planning Act 2021 disapply the immediate requirement for a maritime area consent for a strategic infrastructure project where the applicant is already in consultation with An Bord Pleanála, which is a partner provision to a similar amendment made to the Planning and Development Act 2000; remove the requirement for consent where a lease or licence had been granted before a specified date; and provide for a suspension of the automatic termination of consent where a receiver or examiner is appointed to the holder or the holder becomes subject to a winding-up order in order to facilitate the transfer of the consent to another party.

The purpose of the amendment to the Lough Corrib Navigation Act 1945 is to address a legal matter caused by the repeal of some of the Drainage (Ireland) Act 1856, under which the Lough Corrib Navigation Trustees was established. The Lough Corrib Navigation Act 1945 reconstituted the board of trustees. The proposed amendments to that Act and will reinstate functions of the trustees that were removed as a result of the repeal of the 1856 Act.

The amendments proposed to section 19A of the Local Government Act 2001, as inserted by the Local Government (Maternity Protection and Others Measures for Members of Local Authorities) Act 2022, are to clarify that a councillor who has caused a temporary absence and sought a temporary substitute could not continue to exercise the functions of councillor during the period of their absence. The temporary substitute fulfils the functions of the councillor causing the temporary absence for the period of that absence.

The Local Government Rates and Other Matters Act 2019 modernises the collection of rates. Certain provisions of the Act were commenced in 2019, but amendments are required prior to further commencement. These include provisions: to refine the process of levying rates on the appropriate valuation list and subsequent billing; to simplify the process for notification of changes in status of liable persons and properties; to clarify that only a liable person who owns a relevant property and proposes to sell the property is required to discharge any rates and interest due and payable; to clarify that any rates and interest on overdue rates due and unpaid by a liable person who owns a relevant property would remain a charge on the property; to clarify the rights to enter a rateable property that does not contain a dwelling; and to provide for additional repeals.

The Act must be commenced this year to comply with a legal requirement to make rate limitation orders as part of the national revaluation programme. Amendments are required to the Valuation Act 2001 to allow local authorities to deal with overpayments or underpayments of rates consequential on decisions of appeals to the Valuation Tribunal or the courts, and for transitional provisions to make rate limitation orders for seven local authorities undergoing revaluation this year.

I ask for the support of the Members of the House for this motion to enable these important amendments to be tabled.

Deputy Eoin Ó Broin

I thank the Minister of State. I have to say that this is a shoddy, tardy and entirely unacceptable way of doing business. Only last week, I was commenting that it looked like we were going to get through a Dáil term without having the Department of Housing, Local Government and Heritage and the Minister lobbing in detailed, technical and complicated amendments to existing legislation at the tail end of an unrelated piece of legislation in a manner which makes it virtually impossible for those of us on this side of the House to do our job. I want to make it very clear that I am not in any way criticising the hard-working officials in the Department who, at very short notice, came in and gave us a very detailed, hour-long briefing on these 24 pages of amendments. In fact, most of them are not amendments and most would actually be sections of the Bill. There are 35 amendments in all.

I made the comment only half in jest to one of the officials, after she very expertly went through the detail of the amendments to the Foreshore Act and the Maritime Area Planning Act, that my head hurt. What the Minister of State is asking us to do, following an hour-long briefing and a 90-minute discussion today, which is not even on the substantive issues of the Bill, is to try to do what we would ordinarily do with complex legislation over a period of weeks or even months. This is not about being for or against what is in the legislation. What really frustrates me when we get to this point in the term is that, very often, what is being brought forward is eminently sensible. However, if we, as legislators, are to do our job properly, we have to be given time to understand, to scrutinise and to potentially highlight errors. Very often, the hard-working officials in the Department are asked to work to impossible deadlines and errors are made. It is the system that is at fault, not the individual drafter of the legislation. What happens when we rush legislation and errors are made? We get another set of non-consequential amendments at the end of the following term, and another at the end of the following term, and so the process repeats.

I am not supporting this motion. I want to make it very clear that this does not mean that when we have time to parse and understand these amendments, and when they come in front of the committee - one would expect possibly next week - that I will be opposing the substance of the amendments. On the basis of some of the information we have got today, they have some merit. However, in addition to being entirely dissatisfied with the process, I am not convinced that all of these need to be introduced in this way. As a result, here we are again, with an absolute mess; not one of the Minister of State’s making or that of the hard-working officials, but we are left with a pig in a poke.

Specifically with regard to the clusters of amendments, the level of technical detail in the changes to the Foreshore Act and the Maritime Area Planning Act is significant. I am not the smartest person in the world but I do not consider myself that stupid either. Having listened to the official very carefully, we had to ask her if she would then send us her notes because we are going to need to reread those a second or third time, we are going to have to consult with some experts who are key to our understanding of this – those in the planning community, the offshore wind community and the local government community - and in an accelerated period, try to work out if this is all okay. I want to see, in particular, the first tranche of offshore wind projects developed as fast as possible but I want them to be got right. The Minister of State and I both share a passionate interest in ensuring we do not sacrifice, for example, marine biodiversity in the rush to get offshore wind. How in God’s name can we make sure we get that fix right if we are not given the time to adequately assess and understand the legislation, including what could be eminently sensible changes in front of us? We have not been given that time.

I engaged in a small and silent chuckle when we were told in the context of the amendments to the Lough Corrib Navigation Act, that, in fact, this was restoring powers that were accidentally removed from the trust that oversees Lough Corrib in the 2009 legislation. There is a bit of me that, if I have some time over the weekend and I cannot get to bed at night, wants to go back and look at Committee Stage of that legislation to see if it was rushed and if that was one of the reasons why that accident happened. Maybe it was, maybe it was not. Again, it does not seem to me unreasonable at all that this proposition is made but there is limited time to consider it.

Obviously, the proposed amendment with regard to ensuring that a councillor who acts in substitution for another elected member who is on maternity leave and so on has the full functions and responsibilities of the member they are substituting for is eminently sensible. I have no difficulty with that; it is one of the least technical and easiest to understand amendments in front of us. However, while this is not a criticism of the officials, we only had an hour to go through these 24 pages of legislation and, in fact, some of the most technical stuff was the changes in regard to the Local Government Act and the Valuation Act. By that stage, I have to say that my head did not just hurt but my eyes and ears were bleeding from just trying to get my head around the complexity of it. I do not envy the officials who have to deal with this daily. There are parts of those amendments that I just do not understand at this stage, and we only had one minute for questions at the end of our briefing. The officials very gracefully answered the questions as asked, but we need more time.

What is really unfortunate about this is that the Historic and Archaeological Heritage Bill is very important. Obviously, we have amendments. My colleague, Deputy Aengus Ó Snodaigh, has led for us on that Bill. I will be speaking to his amendments in committee tomorrow. Deputy Cian O'Callaghan and others have a keen interest in this matter. Instead of us ending the term by agreeing really important and historic legislation, whatever the final outcome of the amendments that we will table, which the Minister of State will tell us are great but which he will likely be instructed to ignore, we will end up involved in a row. I do not want to be here arguing about very important legislation, but what is happening is simply not acceptable. Given the fact that the committee's legislative agenda over the past couple of months has been significantly lighter than would ordinarily be the case, I do not understand why this could not have been done in a different way.

We were not notified of the non-consequential amendments. Nobody from the Department had the courtesy to email the committee a week ago to say they were giving us a heads-up on the 24 pages containing 35 amendments, and to ask if we would like a briefing. We could have had a detailed two-hour briefing last week to go through all of this. Instead, it was down to committee members going through the amendments on Monday after they had been published, and on Tuesday requesting the briefing. At the last minute, the officials are dragged from very important business they have to do elsewhere, our committee secretariat has to organise it and we have to slice an hour out of our day. That is not a good way to do business. I am asking, first, that the Minister does not do this again, but if he is going to do it, give the committee notice, give officials time to organise briefings, and at least allow us to have some level of scrutiny. Rushed legislation leads to bad legislation, which leads to unintended consequences. Those of us on this side of the House do not want to be a party to that.

Deputy Duncan Smith

I echo what has been said already in terms of how unacceptable this is as a method of doing legislative business. I have in my hand the list of amendments from the Opposition select committee members and the names of Deputies, including Deputies Ivana Bacik, Cian O'Callaghan, Aengus Ó Snodaigh and others. Even a cursory look through the many pages of amendments shows that the key words match the Title of the Historic and Archaeological Heritage Bill. However, the amendments in the Minister's name have nothing whatsoever to do with the historic and archaeological heritage of this country. This was raised very well by Deputy Cian O'Callaghan yesterday on the Order of Business, and it is why we are having this truncated debate today. It is absolutely unacceptable that a Bill as imperfect and in need of amendments as it was, but still a Bill that was on the historic and archaeological heritage of this country, has now been turned into an odds and sods Bill.

When the Minister has created such a mess of a piece of legislation, it is very difficult for Opposition parties to play catch-up and to try to engage in the debate properly. I am a spokesperson on the committee, although I was not at the briefing today. In fairness, that briefing was given but it is still not the right way of doing business that we are going to be throwing the foreshore, the Lough Corrib Navigation Act, the Planning and Development Act, valuation, local government, local government rates, maritime area planning and other matters into the Historic and Archaeological Heritage Bill.

There is no reason for it and no excuse. They should be separate pieces of legislation or it should be a miscellaneous Bill on its own merit. It is absolutely unacceptable. It weakens the original Bill and is a bad way of doing business but it is a consistent way of doing business by this Government. It undercuts any confidence people have in any legislation that goes through. When there is not the right scrutiny, the booby traps will come along in the months and years ahead in relation to this. It is no way to do business. I am glad we have had this chance to make this point. It is something we cannot continue to see but I have no confidence that the practice will end.

Deputy Cian O'Callaghan

I raise very similar concerns to others on process. This week we received 24 pages of new amendments from the Minister that have nothing whatever to do with archaeology or heritage and everything to do with seven existing pieces of legislation which are entirely outside of the existing scope of this Bill.

We received a verbal briefing on this for one hour a couple of hours ago. I have not received any written briefings yet, although there are written detailed notes on which a lot of work was put in. I know we will receive those. Committee Stage starts tomorrow at 1 p.m. and that is the level of preparation we are able to have on these 24 pages of amendments. I am all for working efficiently and working fast but it is simply not possible for us to do our job of scrutinising these amendments with that level of information being lobbed in. These should be in separate legislation altogether. They should not be tagged onto this Bill. It does not do these amendments justice. Many of these things are very complex and, as legislators, in order to scrutinise these, we need to be able to get external expertise to be able to assist with them and get another viewpoint on it. With the best will in the world, along with the interpretation from the Department, which writes the amendments we need other interpretations which are independent of that. That goes for all legislation. While those involved in drafting the legislation will have their own good faith interpretation of those amendments and what they need, we need other views and inputs. When they are complex technical amendments, as many of these are, then it is impossible for us to do our job as legislators without that advice. The point of having an Oireachtas or Dáil is so that we can do our job and scrutinise legislation. We want to do that but to be able to do that, we have to have a little bit of time and not do it right at the end.

Furthermore, as an Oireachtas, we have agreed a process around legislation, including pre-legislative scrutiny to improve our legislative process. These 24 pages of amendments have nothing to do with the Historic and Archaeological Heritage Bill and completely escape any level of pre-legislative scrutiny. They were never part of the original Bill and how could they be? They have nothing to do with archaeology or heritage. It is quite frustrating when we have done very good pre-legislative scrutiny on this Bill. The Bill has not been rushed. As a committee, we have been ready and waiting for the last few months to deal with this Bill and with the amendments. We were asked to submit amendments five or six weeks ago, which we did. We have been ready and waiting. We were told at the briefing today that one of the issues, around Lough Corrib, has been outstanding since 2009. Given that there is little rush around some of these, why as elected Members to the Dáil are we not being given the minimum amount of time we need to be able to scrutinise these?

At yesterday’s Order of Business, the Government Chief Whip said they were just technical amendments and therefore, somehow, it was okay. Most amendments can be described as technical but many of these are complex amendments about technical issues which require more scrutiny, input or expertise. Simply saying these are technical and, therefore, there is no issue so here is 24 pages of amendments and Members do not need time for it to get external expertise does not wash as all.

I am particularly concerned about the detailed amendments around maritime planning. They need to be looked at in detail. We cannot have them rushed through. I absolutely share the Minister of State's objective on these. I want to see the most robust planning framework in place, so we can deliver as quickly as possible the offshore renewable energy that we desperately need while at the same time protecting our marine biodiversity. We are on the same page there. However, the same thing happens every year at the end of every term. We did think it was not going to happen this year and we thought, fair play, the Department of Housing, Local Government and Heritage is not going to do it this year. Every year we have this process of this stuff being rammed in at the last minute. It has become practice in the Department to do that. It is not acceptable. It is disrespectful of the democratic process. Even if there was just a little bit of time given for this to be scrutinised, it would be something.

That said, this should be in separate legislation. It should be going into a separate Bill and being properly scrutinised. We have shown in the Joint Committee on Housing, Local Government and Heritage that we can do that efficiently, fast and co-operate on that. There are no issues on that. I will not support the motion and appeal for this practice to stop. It does not do justice to the huge amount of work officials have put into the process and to the amendments either. We are asking that we are given the amount of time we need to do our job on this. Without that, the chances of more flaws in legislation increases. We ask the Minister of State in the strongest possible terms that this practice stops and we are allowed do our job properly from hereon.

Deputy Mattie McGrath

I was wandering around here over the last couple of weeks wondering when this was going to start. I am here almost 16 years, not half as long as the Acting Chair, Deputy Ring, obviously, and every year this happens. Legislation is just turfed in and we are expected to speak to it, deal with it and table amendments to it. It is terrible practice. I thought this year it was not going to happen because it has been so quiet. It has been a bit eerie for the last number of weeks, from my point of view anyway, but here we go. It has started. The Minister of State has launched it in here this evening with so many amendments. All are very important. There are some of which I am very supportive and there are others of which I am not. No wonder the Government could not build houses if the Department of Housing, Local Government and Heritage does its business this way because rushed legislation, as we all know, is bad and has defects.

There is never a thought given to unintended consequences. With this kind of mixed bag of liquorice allsorts we have this evening, anything could go wrong. It could make plenty of money in the future for our learned friends with the wigs across the river but people will suffer in the meantime as will institutions. We are all for wave power or wind power or harnessing that but this is a conglomerate of dolly mixtures that I am not happy with and neither are my colleagues in the Rural Independent Group or the committees.

Even technocrats like my colleague, Deputy Ó Broin, cannot cope with the amendments. There is no time for them to do that and there is no proper debate. There is one hour for these dolly mixtures, and God knows the consequences. It is a very shabby and shoddy way to work. It is deliberate on the Government’s part obviously, and of successive governments' parts. Like Deputy Ó Broin, I am not blaming the officials who are doing what they are asked, but it is just too much and it does not show proper respect or regard.

Rates were mentioned and changing the situation around the payment and collection of rates. We have issues with that. I have no issue with people who are genuinely unable to pay them but for others who seek to avoid paying them by ceasing trading or changing companies, that certainly needs to be tightened up.

I fully support elected councillors being able to be replaced, but you could not possibly tease all this out in an hour. Maybe we could in ten or 12 hours and in different segments but this is ridiculous.

Deputy Thomas Pringle

Our group does not have a member on the housing committee so we do not get to see anything of this, but we are expected to trundle in here and vote on it and do the business on it. That is a problem in itself. The reason I have come in here to talk about this is that this process happens every year and I raise it every year at this time. Everybody is very careful not to blame officials and so on, but somebody is doing this. Somebody sets up the process as to how this system works. It is either the Minister of State and his Government colleagues doing it, him and his senior officials doing it or senior Government officials doing it, but somebody is doing it. It does not just happen. The proposal that this is going to happen now does not just fall out of the sky. Every single year this happens and it is rushed through. Look over recent years at the amount of legislation that comes before the Dáil. It has been done on bar charts. During the July and December periods, it shoots through the roof. It is a deliberate process. There is absolutely no doubt about it. It is a way of Departments deciding that they will rush this stuff through without any scrutiny. Look at how this place has operated in recent weeks. There have been statements on this, statements on that and so on. There is no legislation coming through. It has been lovely and quiet. That happens every year. Now we have this, and the Minister of State's instruction is probably just the start of it. Next week and the week after will probably be mad busy and we will have late nights here, with finishes of maybe 12 midnight, 1 a.m. or the like, or maybe this year we will not and the Government will be able to say it has changed the whole system. In reality, though, it has not changed because this is what happens.

I am picking up from this debate that the Minister of State says there was 2009 legislation that removed the parts in respect of Lough Corrib, yet here we are now, in July 2023, and this has to be rushed through today. What has happened over the past 12 or 13 years? This was never detected in the first place, which seems very interesting. I would love to know - maybe the Minister of State could enlighten us in his summing up - when it was discovered that this was a problem. When was it decided that legislation was needed to resolve this issue? When was it drafted? The committee sat last week. Surely this has been drafted in the Department, so the Department, culturally and as an organisation, knew that this was happening and was preparing for this. It did not decide on Monday or last Thursday or last Friday that it had to do all this and present all this. This process has been planned and the Minister of State has been quite happy to go along with it. That is the problem, and that is why we get shoddy legislation.

I have tabled a number of questions, not only to the Minister of State's Department. This happens in every Department. It is right across Government so it is a Government problem. Everybody uses the excuse that the Attorney General's office does not have drafters available and so on. It seems they are only available to have all the legislation come through in July. Maybe that is the problem. If so, there is something badly wrong with how the Government plans because it obviously does not plan anything. The reality is that this has happened as a process. I have recently asked questions of every Department as to how much legislation has been passed, how much has been implemented, what sections and so on. The amount of legislation that has been rushed through this House by Ministers and not brought into law or enacted is shocking. There are full Bills all sitting there across all Departments, not only the Minister of State's. This is obviously a big problem and it will continue. It it lazy and it is just shocking the way this goes on.

Deputy Catherine Connolly

I thank my colleague for sharing his time with me. I had not intended to speak on this, but when the Whip, the Minister of State, Deputy Naughton, read out the amendments, it alerted me to the Lough Corrib Navigation Trustees. For my sins I spent ten years of my life on that august body, which theoretically did a brilliant job. It was set up with legislation in the middle of the 19th century, and under its remit come the Claddagh Basin, the Eglinton Canal and the navigation markers on the Corrib. The trustees do that job very well.

I echo the concerns of the previous speakers about putting forward so many amendments that do not fit with this Bill. I am not on the committee but I share their concerns and, as my colleague, Deputy Pringle, said, we have had any amount of time for statements. We are supposed to be legislators - the Taoiseach and the Tánaiste keep telling us we are legislators - yet all the time has been used for statements and not for legislation as important as this.

As regards this instruction, I was trying to listen to the Minister of State's opening speech but there is no copy of it, unfortunately, and the phone rang and I missed why this part was necessary. From looking at it briefly, it seems the Minister of State is seeking to reinstate powers that were inadvertently removed through legislation in 2009. I did not catch the name of the legislation. I am not sure whether it was the conveyancing Act or something else. That was an unintended consequence, was it not, at that time? Clearly, then, there was a message here and unintended consequences that rendered this powerless, and now the Minister of State is trying to give the power back to it. The power he is seeking to give back to it is extremely important, namely, that they will be able to carry out works on a legal basis, to borrow, to enter land if necessary and so on, or delegate the power if necessary. On the face of it, it looks good. What I am missing is the context. The body was independent but the secretary was also the director of planning on the city council - one and the same - which caused great difficulty because when we were watching unauthorised developments abutting the land of the Corrib navigation trustees, that secretary wrote to himself as the director of planning or whatever title he had. I am not personalising this. What I am trying to show the Minister of State is that he was secretary of the trustees and we were asking him to highlight unauthorised development and he wrote to himself in the capacity as director of planning in the local authority. We sorted that out, but they were the battles we had as trustees to keep that body independent and hold the Claddagh Basin, the Eglinton Canal and all up the piers and the navigation markers in trust for the people of Galway. We managed that. Twice it came to a casting vote. Twice I had the privilege of using my casting vote. I can say it was a privilege now but at the time it was anything but a privilege. It was painful. The same letter starts each word, but it was painful to stay and try to keep that property in trust.

Therefore, my paranoia, for want of a better word, was awoken when I saw this. I would like context to it. I would like a copy of the Minister of State's speech to see where this is. I urge caution. This was an unintended consequence of previous legislation, yet we have a raft of amendments here being pushed through in this manner. It is simply unacceptable.

Question put.

An Cathaoirleach Gníomhach (Deputy Michael Ring)

The vote is deferred until the voting block later.