The purposes of this Bill are the reconstitution of An Bord Pleanála and the amendment of existing law in relation to planning appeal procedures. The Bill arises from concern about the method of appointment of members of the board and the problems caused by delays in determining planning appeals. On assuming office, I initiated a review of these matters and decided that legislation to improve the method of appointment and to amend the law relating to appeals was necessary.
The Local Government (Planning and Development) Act, 1976, provided for the setting up of An Bord Pleanála — an independent body — to deal with planning appeals. However, it can now be seen, with hindsight, that the 1976 Act did not go far enough to achieve its objective; in particular, it left the appointment of the ordinary members to the absolute discretion of the Minister. No provision was made for a selection or nomination system which would provide assurance that appointments were being made from among qualified and suitable persons. The way in which the power of appointment of the ordinary members has, in practice, been used in recent times has led to a diminution in public confidence in the appeals system. In particular, the circumstances surrounding some appointments, and especially their timing, seriously affected the general public's perception of the board as an independent and unbiased tribunal. The provisions of this Bill are intended, therefore, to restore public confidence in the appeals system by providing for an improved system for the appointment of members of the board. The Bill also includes provisions designed to speed-up the processing of certain categories of appeals and to make the board's operations more efficient.
In setting out in the Bill to provide for the reconstruction of the board, I wish to make it perfectly clear that I am not making any allegations against the individual members of the present board nor am I implying any reflection on them. What I am seeking to do is to substitute for the present tarnished system of appointment a new system which will ensure that justice is seen to be done and that never again can appointments to the board be alleged to be based on political considerations.
It is as a consequence of the proposed changes in the entire structure and constitution of the board that the appointments of existing members are to be terminated in due course under section 10 of the Bill. If all these appointments were to run their normal course, the board could not be reconstituted until December 1987. I am convinced that a new system is needed to allay public concern and to increase efficiency, and that new system must be implemented as soon as possible. That is why the Bill provides that the existing members of the board will cease to hold office when the new board is appointed.
It is not an objective in itself that the existing members should cease to hold office but a necessary consequence of organisational change. It is not the first time that organisational change has had repercussions on individuals in the public or private sector, nor will it be the last time. Obviously, in circumstances such as these, it would be unfair if appointments were to be terminated without compensation. For this reason, the Bill provides in section 9 for the making of schemes by the Minister for the payment of gratuities to former members. It would of course be inappropriate to go into detail in a public debate about the arrangements which might be made in relation to particular individuals but I can assure the House that the intention will be to formulate provisions which will take account of the particular circumstances.
The board which were established in 1977 comprised a chairman and five ordinary members. That continued to be the situation until June 1981 and, during that period, progress was made in dealing with the arrears of appeals and with the intake of new appeals. No representations were ever made by that board, or by any subsequent board, seeking an increase in membership. Indeed, Mr. Justice Pringle, who was chairman of the board from 1977 to 1981, has been reported in The Irish Press of 26 May 1983, as saying that a board of six members, including the chariman, was sufficient.
No action was taken to increase the membership of the board until 29 June 1981 — the day before the Government left office. Three appointments were made to the board on that day. One of these took account of the resignation of an existing member but the other two were additional appointments. If the then Minister had come to the view that an increase in board membership was necessary, it was remarkable that he left it until his second last day in office before taking any steps to provide for an increase.
In December 1982, a few days before Fianna Fáil were again due to leave office, a further two additional members were appointed to the board. Again, these appointments came at the end of a period of about nine months during which neither the membership nor the staff of the board had been increased.
The appointment of additional members to the board on two separate occasions, in similar circumstances, is all the more remarkable when one considers the need and the importance of providing additional professional staff for the board. The fact is that more importance was attached to the appointment of additional members to the board than to the appointment of additional staff. Besides, the increase in membership did not achieve an improvement in the output of appeal decisions. Give the facts as I have outlined them I have decided that there should be a fixed statutory limit on the membership of the board and that the method of appointment of the ordinary members should be depoliticised as far as possible. In addition, I consider that a new method of appointing the chairman is desirable.
Section 4 of the 1976 Planning Act provides that the chairman must be a serving High Court judge or a former Supreme Court or High Court judge. This arrangement is not being continued for a number of reasons to which I will refer in a moment. Instead, the new chairman will be appointed by the Government from among not more than three persons who have been selected as suitable by a special selection committee. Detailed provision for the constitution of this committee is made in section 5 which is based largely on the provisions of the Prosecution of Offences Act, 1974, which apply in relation to the appointmeent of the Director of Public Prosecutions. That Act provides for the appointment of the director by the Government from among persons selected by a special committee. A similar committee is provided for in relation to the chairmanship. The committee will determine the experience and qualifications required of candidates for the position but will not be restricted to considering persons with a legal qualification. Whenever so requested by the Minister, the committee will select three candidates, or a lesser number if sufficient are not found to be suitable for appointment as chairman and inform the Minister of their suitability. The final decision will rest with the Government.
The chairmanship will be a wholetime office. A seven-year term of office is provided for but an outgoing chairman may be reappointed. There will be a salary linked to that of a High Court judge as in the case of the office of ombudsman.
At present, the chairman must be a serving High Court judge or a former Supreme Court or High Court judge. However, there is no evidence that serving judges want the job. Two previous Governments did not get a serving judge to take the position; in one case a person was first appointed a judge and then appointed chairman and on his death, the same procedure was attempted. If serving judges do not want the job, then the only persons eligible for appointment are retired judges whose normal retirement age is 72 years. As a matter of principle, I do not consider it desirable that the full-time chairman of an important public body, with an extremely heavy workload, must be in his seventies.
The post of chairman is a demanding one, involving overall responsibility for a large organisation and involving a large and continuous volume of case work on a daily basis. During the debates on the Bill which became the 1976 Act, Fianna Fáil questioned the wisdom of appointing retired judges to the post of chairman and stated that the job of chairman of the board was not the sort of task which could be undertaken by a man who had retired. The Bill provides that the retiring age of the chairman will be 65. The same retiring age will apply to ordinary members of the board. This is in line with the provisions relating to the vast majority of other full-time public servants and I see no reason why an exception should be made in the case of the full-time chairman of the board.
There has been some discussion of the actual composition of the selection committee. The Bill now provides that it will consist of—
(a) the President of the High Court,
(b) the Chairman of the County Councils General Council,
(c) the Chief Engineering Adviser of the Department of the Environment,
(d) the Chairman of the Council of An Taisce — the National Trust for Ireland,
(e) the President of the Construction Industry Federation, and
(f) the President of the Executive Council of the Irish Congress of Trade Unions.
Many groups could make a valid case for inclusion on the selection committee. However, if the committee is to operate efficiently, it must be kept to a reasonable size, its composition must be a balanced one and it must be capable of securing wide public acceptance. I am convinced that the committee as provided for in the Bill will meet these criteria.
I turn next to section 7 which deals with the method of appointment of the five ordinary members of the board. At present, the Minister has an absolute discretion as to the persons who may be appointed to these positions. Section 7 proposes to restrict this discretion severely by requiring that four of the five ordinary members be appointed from panels of candidates nominated by organisations prescribed for the purpose by the Minister and that the fifth ordinary member should be appointed from among the Minister's serving officers. Before deciding on these particular arrangements, consideration was given to other possibilities. For example, a select list of organisations could be allowed to appoint members directly but there would be difficulties and dangers in this. How could we get agreement on such a short list and how could we avoid the danger that members appointed in this way would see themselves, and be seen by others, primarily to be the representative of the body which appointed them? There are other practical considerations: we must, for example, aim to achieve a reasonable balance as between persons with different backgrounds, skills, experience and qualifications and we must, if possible, achieve some geographical balance.
I believe that a system of appointments by the Minister from persons selected by nominating organisations will permit account to be taken of such considerations, and allow reasonable discretion and flexibility in making appointments without giving rise to situations where persons are appointed whose suitability for membership might be called into question. Besides, I think that it is right, in principle, that the final decision should be made by a Minister answerable to the Oireachtas. This should not be seen by the public to involve a party political decision so long as all of those from whom the members are to be drawn have been judged by appropriate nominating bodies to be suitable for appointment. I believe, therefore, that section 7 goes as far as one can reasonably and practicably go to depoliticise the appointment process.
When the Bill is enacted, I will make regulations prescribing the nominating organisations; such regulations must be laid before both Houses and may be annulled by resolution of either House. I can give an assurance that the organisations which I will prescribe will be those which are genuinely representative of the interests listed in section 7 (1) of the Bill.
In addition to providing a new constitution for An Bord Pleanála, the Bill contains provisions relating to appeal procedures which are designed to speed up the processing of certain categories of appeals. These changes, which are contained in sections 15 to 20 have received a general welcome from all sides. I do not, therefore, propose to take up the time of the House at this stage in dealing with these technical matters but I will, of course, be happy to go into them in detail at Committee Stage.
As well as the procedural changes which should enable certain appeals to be dealt with in a shorter period, section 4 imposes on the board a general duty to secure that appeals generally will be disposed of expeditiously and with this end in mind, it requires the board to conduct periodic reviews of its organisation and of systems and procedures. The section also allows the Minister to direct that such reviews be undertaken and, following consultation with the board, to give directives as to the matters reviewed. It also enables the board to consult the Minister regarding any matter pertaining to its functions and enables the Minister to consult with the board regarding his functions or the functions of the board. However, this section, and indeed all the other provisions of the Bill, are subject to an overriding prohibition on ministerial intervention in relation to individual appeals; this is contained in section 23.
I attach some importance to the fact that a clear statutory duty is being imposed on the board to deal with appeals, references, etc., as quickly as possible and to take all practicable steps to ensure that there are no avoidable delays in their processing. This provision, coupled with the specific duty imposed on the chairman to ensure the efficient discharge of business, should make the board more conscious of the need to eliminate delays at all stages in its consideration of appeals.
Before I conclude I would like to refer to the current position regarding the staffing of the board and to the arrears situation. The 1976 Act empowers the board to employ its own staff, who would not be civil servants, and the assignment of staff to the board from my Department under section 21 of that Act was intended to be an interim arrangement. Three years ago, following a survey of the board's organisation, my Department and the Department of the Public Service accepted that the board should set about recruiting its own staff and an overall structure was suggested and accepted in principle by the board. In 1981, a chief officer was recruited by the board but it was not until October 1982 that the board agreed to put into operation the various organisational changes which were necessary to effect the transition to an independent staff organisation. By then, the embargoes on staffing imposed by successive Governments created complications.
Despite difficulties, I have authorised the board to augment its professional staff. I conveyed sanction last January for the filling of two additional senior planning inspector posts and, more recently, I have conveyed approval for a further two such posts. The board has been allowed to recruit these additional inspectors in spite of the fact that an embargo on staffing exists throughout the public service. Indeed, to keep within the overall terms of the embargo, my Department will have to suppress a number of posts. This will create difficulties in relation to other programmes which can only be accepted in exceptional circumstances. However, it illustrates the importance that I have attached to providing for the board an adequate professional staff to enable it to deal with the backlog of appeals and the new intake. As well as this, I am making professional staff of my Department available on a temporary basis to supplement the board's inspectors. Moreover, I have authorised the board to engage up to 15 part-time staff and to seek staff on temporary secondment from local authorities. Temporary staffing assistance has also been provided on the administrative side in recent times to cope with arrears.
My Department and I have no wish to attempt to run the board by remote control or otherwise. We have been pressing the board to make progress in recruiting its own professional staff and, when this is completed, I hope that a beginning can be made to engage separate administrative staff. The arrangement whereby civil servants are assigned to work for the board is a temporary one and there is no wish to prolong it. I should make it clear, however, that while staff of my Department are assigned to serve the board, they work under the day-to-day direction and control of the chief officer and the board. Besides, we have ensured that the various staffing embargoes have not affected the board staff to the same extent as other areas of the Department.
The number of planning appeals on hands at the end of May 1983 was 3,595. The corresponding figure for May 1981 was 1,824. This deterioration in the arrears situation is a matter of serious concern, especially at a time when every effort must be made to maintain and increase employment in the construction industry and in the economy as a whole. It is the responsibility of the full time board not just to deal with individual appeal cases, but also to manage and direct the organisation as a whole. I and my Department have been in correspondence with the board's chairman in recent months about the situation and I am glad to say that, as a result of a combined effort, the output of formal decisions has been increased. It is, however, the responsibility of the board and its chief officer to continue to review systems and procedures and the deployment of staff so as to achieve optimum results. My Department will continue to assist, where possible, in this area but in the last analysis it is only the board which can decide what should be done and set about designing a programme to reduce the arrears to an acceptable level within a reasonable period.
I am confident that a new board selected in accordance with the provisions of this Bill will secure wide public acceptance and be able to get to grips with the backlog of appeals. The various technical changes in appeals law will be of considerable assistance and so too should the strengthened inspectorate and improved procedures. I see no reason why the overall package of measures which I am proposing should not bring results. I look forward, therefore, to a renewal of public confidence in the appeals system, an increased output of decisions and a significant improvement in the arrears situation.