When we adjourned the debate on this Bill we were on section 12. Senator M. O'Toole had made a point. As I asked the Leader of the House to move the adjournment, Senator Fitzsimons had risen.
Air Pollution Bill, 1986: Committee Stage (Resumed).
With regard to what Senator Dooge had to say, I quite agree that the penalty should be substantial. Nevertheless, it is my opinion that the penalty in itself will not solve the problem. If it did for example, with regard to the Litter Act, we could have solved the litter problem. With regard to parking, if it was simply a matter of having a heavy penalty, that would solve the problem also. I agree that the punishment should fit the crime. This is a very substantial amount. Under subsection (1) (a) the cumulative amount could be very substantial indeed, even where a firm might have the best intentions in the world and endeavour to co-operate with the authorities with regard to the provisions of this Bill. I agree that the limitation in subsection (1) (a) of £100 per day to £1,000 maximum appears reasonable. However, with regard to subsection (1) (b), I feel the same mechanism should be there to ensure that we would not have a snowballing effect, resulting in a very heavy penalty.
Effectively, the only reason it appears is that there is a limiting clause in subsection (1) (a) involving the District Court offence. To my knowledge that is constitutional, and that is the limit in relation to summary convictions in the District Courts. There is no such equivalent in relation to Circuit Court offences or fines.
I must reiterate what Senator Dooge said before we adjourned, which is that all this will depend on the judge on the day. It is left to his discretion to handle the offender, who will be presenting his case, as he thinks fit and to ensure that the penalty will fit the crime. We must have extremely serious penalties both in relation to imprisonment and to the actual monetary fines. It is quite conceivable that at some stage we could be dealing with international bodies and companies who will not be deterred by small fines of £100 per day, or even £1,000 per day. As the Senator said, we have to be sure that the punishment fits the crime. We are talking about enormous amounts of money in some of these cases. Also it can be very expensive to retrofit some existing plant if that should be demanded by the State. Unless the fines were of such an order as to make them seriously consider doing what is necessary to get into line environmentally, perhaps they would opt for the £100 per day or the £1,000 per day. It could be the lesser of two evils unless it was recurring to the extent we have it here.
I understand the concern Senators O'Toole and Fitzsimons are voicing in that they feel the small man might be unjustifiably penalised and that there could be a question of the punishment not fitting the crime. In that case the small man would be dealt with by the District Court. That situation is controlled by the constitutional provisions in relation thereto. However, we will have to be in a position whereby we will not be dictated to by the large international combines or by anyone who is in a position to cause environmental pollution to any major extent. Perhaps because of the profitability of the operation they are involved in they ignore the laws and the licensing provisions of the State in relation to pollution. We must be sure that those people will not be encouraged in any way by any lax attitude towards penalties to infringe regulations continually.
I must stand by section 12, as it stands, and I hope Senators will understand why.
I tried to make the point that a heavy penalty in itself may not be a deterrent. For example, with regard to the provisions of the Litter Act and parking fines, one must have the cooperation and goodwill of the people. Here we seem to be relying on the heavy stick, even in relation to section 11 with which we have dealt. I accept Senator Durcan's assurance that —
On the double penalty.
If that is the situation, why have it incorporated in the Bill? There is the possibility of applying a double penalty. It would be far better to use the carrot in conjunction with the stick in this situation.
May I make the point that I envisage them being in court at this stage facing these large fines, particularly if they are in the Circuit Court, when all carrot mechanisms would have been exhausted. There is no question of leaping into court on the first evidence of some pollution. We are talking about persistent offenders who refuse to get their houses in order. We must have a mechanism which will be a deterrent if the penalty is sufficiently high. There will always be a few mavericks who will never be deterred by monetary considerations, but the vast majority of us will be, particularly by fines of this amount.
I support the Minister fully in this matter. The penalty must fit the crime, but it must also fit the criminal. The Minister has got the balance right in ensuring, on the one hand, that the small man can be dealt with in a summary way in the District Courts, where the maximum fine is £1,000. There are many statutory offences where maximum fines of £1,000 apply; indeed, the normal fine may be £50. On the other hand, we have to envisage a situation in which we will encounter the major offender, the multinational, the big industrialist, the person who pollutes without regard to anybody, and who has the economic back-up to do so. That can be dealt with in a firm and realistic way by the courts. That type of criminal is dealt with in section 12 (1) (b) where a £10,000 fine can be imposed and a £1,000 daily continuing fine. Certainly I would not support any suggestion seeking a diminution of the level of penalties. In all of this, of course, penalties are discretionary; it is a matter for a court to decide.
We want to place on record that we are not satisfied with the £100 penalty continuing daily on a small man, or a £1,000 in the case of large companies. We have no objection to the £1,000 fine, for an initial offence. But what we do object to is, in the case of any particular defendant trying to put his house in order, until such time as he has pollution controlled he will have to pay a continuing fine of £100 per day, in the case of a small man, and £1,000 per day in the case of larger companies. It is not the £1,000 or the £10,000 we are questioning. It is the continuance of the penalty in the case of a person trying to put his house in order. That might well be a local authority. I should like the Minister to tell me who would be in a position to prosecute a local authority for pollution.
I believe the continuing £100 penalty in the case of a small man is somewhat harsh. While he is trying to put his house in order and take corrective measures to eliminate the pollution he has to pay a continuing penalty of £100. It is that aspect of the fine we do not like. We have made our protest to the Minister. All we can do is put it on record — that we feel that to be excessive, or too harsh.
I would draw the House's attention to the fact that, in the case of a continuing offence, provision is made for a fine not exceeding £100 every day. It could be £5 every day. It is at the judge's discretion to assess the man and the crime that would be presented before him and to fit the punishment accordingly. Likewise, the £1,000 continuing fine for the Circuit Court is a maximum. It can be anything below £1,000. It is up to the discretion of the judge.
One final point on subsection (2) which says that section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence to which subsection (1) relates. This subsection is made of parts (a) and (b). As I understand it, the procedure here is that the fines in section 13 of the Criminal Procedure Act 1967 will be increased in line with those being proposed here. Am I correct in understanding, therefore, that in relation to subsection (1), (a) and (b), where the provisions of the Criminal Procedure Act 1967 are invoked it will be the penalties of subsection (1) (a) that will apply and that those proposed in subsection (b) will not?
That is correct.
I move amendment No. 9:
In page 11, lines 15 to 22, to delete subsection (4).
Subsection (4) reads:
For the purpose of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence relating to the offence came to his knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be signed shall be deemed to be signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.
We are seeking the deletion of that subsection.
We are not happy that any evidence in the form of a certificate should be accepted as prima facie evidence under the provisions of this Bill. We feel that all the evidence should be proven in an open court, at the hearing of an offence. While there is a precedent with regard to drunken-driving and so on, we feel it should not apply here, rather that evidence should be given in an open court.
I find myself having a certain sympathy with this amendment and with the points of view expressed by Senators M. O'Toole and Fitzsimons. The purpose of this subsection does not go to the basis of the provision. It deals rather with an administrative matter, that is the change which this section proposes to introduce in relation to the time within which summary proceedings can be initiated. The 1981 Act provided that summary proceedings must be instituted within six months from the date of the commission of an offence. Section (3) provides that that period be extended to 12 months. Indeed it is extended — under subsection (b) — in a more devious and unpleasant way where it is said: "at any time within 3 months from the date on which evidence sufficient in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to such person's knowledge". We are in a position here in which proceedings for justice may be delayed considerably, where the delivery of justice may be delayed for 12 months, for two years or for three years. The reason for the delay of delivering of justice in those circumstances does not have to be justified to our courts. In other words, the person who reaches that delayed decision can justify the delaying of the delivery of justice by simply executing a certificate on the lines specified in subsection (4). This is a provision which should be looked at very carefully, because it represents a basic departure from the law, as administered in this country, both in the lifetime of this State and previously. It is something I do not welcome. It is something which I believe should be deleted.
Indeed Senator Fitzsimons drew an analogy with the provisions of the Road Traffic Act 1978 which drew up the basis for the breathalyser procedures. Certifi cation in that case has to deal only with the proving of certain matters of fact which have been dealt with by a registered medical practitioner and have been subsequently certified, on analysis, by the medical bureau. Here we have something that penetrates the whole basis of the court's jurisdiction which now can be verified in a certification form.
This is something which should be looked at between now and Report Stage. I welcome the amendment. I will not support the amendment, if it is pushed in this House today, because I believe the Minister will have the wisdom to reconsider this matter between now and Report Stage.
I regret to tell the Senators that I am not in a position to accept this amendment. A provision identical to subsection (4) has already been enacted in section 30 of the Local Government (Planning and Development) Act 1976, and as far as I know, has caused absolutely no problems. It merely gives a presumption in favour of the bona fides of the person initiating the proceedings. Prima facie evidence is not conclusive proof and a challenge is still allowed as to the matters certified, or the signature of the person certifying. It simply places the burden of proof onto the person wishing to make such a challenge.
I am not won over by the Minister's argument. We are not changing the burden of proof — placing it on an unfortunate defendant, on the small man Senator O'Toole spoke of, on the individual who must now deal with the Department of the Environment or with Mayo County Council, who must now deal with those officers who establish to police the provisions of this Bill. Here we have somebody, certainly not at arms length, being forced to deal with such matters in relation to achieving justice in our courts.
This is a very bad position. I ask the Minister to look at it between now and Report Stage.
I can only reiterate that an identical subsection in the Local Government (Planning and Development) Act, 1976 has caused absolutely no problems even for the small man.
Subsection (3) says:
Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be commenced —
(a) at any time within twelve months from the date on which the offence was committed, or
(b) at any time within three months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to such person's knowledge, whichever is the later: provided that no such proceedings shall be initiated later than five years from the date on which the offence concerned was committed.
I am at a loss to understand in what circumstances somebody might be prosecuted for an offence which was committed five years previously. That is my interpretation of this subsection. It seems unreasonable — if I am correct in my interpretation — that as long as five years afterwards recourse could be had to the law with regard to a problem in this area.
Subsection (3) amends the Petty Sessions (Ireland) Act, 1851 to enable summary proceedings for an offence to be initiated within 12 months of an offence being committed, or within three months of sufficient evidence coming to the attention of the prosecuting authority, whichever is the later. However, proceedings may not be initiated later than five years from the date on which offences are committed. The Petty Sessions (Ireland) Act, 1851 requires that proceedings be commenced within three months of an offence being committed.
I would like to give two examples of when there might be a delay of up to five years before proceedings were initiated: in cases of misinformation to the local authority, for example, or deliberate concealment of information to the local authority. Sometimes it could take a while to find out exactly what the problem was or what was the source of the problem in question. To allow time for proper investigation and the due course of the law to be fairly applied — as far as both parties are concerned — this is deemed to be necessary.
Could that be deliberate misinformation?
It could be, yes.
I move amendment No. 10:
In page 11, subsection (4), line 35, after "premises", to insert "except in the case of private dwelling".
This is something about which Senator Durcan spoke earlier under a different heading. We object that there is a right of entry to a private dwelling even though 48 hours notice is required. We are concerned at the extensive powers given in subsection (4) (a), (b), (c) and (d) which in my view are excessive. One could also make the case that if a notice of entry was posted on a Friday and the "authorised person" entered the premises on a Monday, the statutory 48 hours had been given. But the applicant would not have received the notice. Therefore the applicant would be in a position not to allow entry onto the premises. There must be protection of privacy here. Even though there is provision for 48 hours the section should be amended to exclude private dwellings. We object to the right of entry to a private dwelling. We would like the section amended to read: except in the case of a "private dwelling".
It is difficult enough to address this amendment without addressing this section as a whole. I trust you will give me a certain amount of latitude.
Just a little because I nearly ran into trouble earlier.
I will try and keep within the bounds of the latitude you give me. I agree with what Senator O'Toole says — and I fully support him — one's dwellinghouse should be invincible. I agree with that sentiment. It is very wrong that we should now have these new officials who would have the right to come in, unannounced, uninvited and in many instances, unwelcome, into one's yard, one's outoffices, one's garden and that, while there, may make plans and carry out inspections. They may take tests and samples, they may require the owner for such information or for such records and documents as they consider necessary. That is all done without forewarning, without advice, without indication that this will happen. I regard this to be a complete invasion of privacy.
If we in this House are to respect the privacy of a dwellinghouse and the privacy of sheds, barns, gardens and yards then the definitions contained in section 7 and this one deserve to be reworded or repressed. I have no objection if an "authorised person" has powers without notice, to go to such places which do not include a private dwellinghouse, yard, garden, curtilage and the area immediately surrounding, but I do object very much that he or she may enter upon an area that is so close to the sanctity of oneself, the area that you will go to in your pyjamas without worry, that is one's yard, outoffices and garden. That is the area one regards as private and to oneself. Yet at any time of the day or night one could meet one of these "authorised persons" from the county council or the Department of the Environment who were there to take tests and samples, to carry out plans and make inspections, all without invitation or notice.
I fully support what Senator O'Toole has said. This wants examination between now and the Report Stage.
I cannot add anything to what has already been said. As Senators Durcan and O'Toole have said I do feel that the person's dwellinghouse should be inviolable: we should consider a double or a treble yellow line around all of the property. Under no circumstances should any "authorised person" have the right of encroachment on a person's private property, that is the area attached to a dwellinghouse.
Under the Hearths Act I recall a provision for entry to and at reasonable times. But it did state from 8 o'clock in the forenoon until some period in the afternoon. There is no such restriction here. In any event we were dealing then with a foreign power. It is despicable that our own Government should grant power to somebody to enter one's home practically at any time. In certain circumstances it might be possible to think up a motive that might not be acceptable in law but nevertheless harm could be done. Like Senators O'Toole and Durcan I feel very strongly that this provision is not acceptable under any circumstances and should be deleted.
I have already been put on notice by the contributions of many Senators to the Second Stage debate that entry into domestic premises would be a sensitive issue in dealing with the detail of this Bill. I entirely sympathise with Senators' feelings on this matter. Indeed, I share them. However, I must ask Senators to be consistent. Part IV of this Bill clearly contemplates the possibility of controls on the use of specified fuels in domestic premises. The principle of this was not fundamentally challenged on Second Stage, and, as far as I can see — is not being seriously opposed by any amendments to Part IV of the Bill on Committee Stage. Roughly 80 per cent of smoke emissions in Dublin come from the domestic sector. If there is broad agreement that it should be possible at least to apply pollution control measures to this sector then I would invite Senators to suggest to me how this can be done without substantive powers of inspecting houses.
Smokeless zoning has been established all over Europe and has invariably been accompanied by powers of this kind in other countries. I would be very concerned that the powers involved should be used sensitively and with respect for the normal privacy of the home. They have been drafted as far as possible to facilitate this. We have to remind ourselves that the ultimate purpose of this Bill before us this evening is to protect human health and our environment. I do not see how we can do that without these powers and I, therefore, cannot accept the amendment.
I agree with what the Minister says: that the powers are substantial and that they must be used in a sensitive way. We cannot do a dental extraction job on this Bill to make it totally ineffective. In other words, the Bill must continue to have teeth. I would ask the Minister to ensure, that before somebody has an unexpected visitation from an authorised officer under this Bill to their dwellinghouse, yard, garden or outoffices that at least 48 hours' notice in writing of the intended entry should be given.
That is why I made the point on section 7 that the definition of "dwelling" is not sufficiently wide. The points made by other speakers and myself earlier might very well be met if the Minister would agree to expand the definition of "dwelling" or expand the circumstances within which 48 hours' notice must be given. As I said earlier, there is the area in terms of land within which many people feel they can wander in their pyjamas at will. That area is their dwellinghouse, yard, garden or outoffices. That is the area that should be protected and the area in respect of which notice should be given of an inspection. As I see it, the trend of legislation coming through this House in recent weeks is going to ensure that people will have to erect signposts and, as Senator Fitzsimons said, double yellow lines in their yards and gardens to prevent collisions between the dog warden and the authorised officer under this Act. We are giving far too extensive powers to these people into the private area of our lives. I would be satisfied if the Minister would provide between now and Report Stage that that private area I mentioned which goes beyond the immediate dwellinghouse cannot be visited in an unexpected way unless a 48 hour notice is given.
I do not doubt that the Minister's intentions are genuine. There is no question about that, but I am worried about the interpretation of this Bill. As I understand it, we are talking about dwellinghouses and smoke and fires within dwellinghouses. You cannot hide smoke. If there is pollution through smoke, surely it is visible without going into a house. It does not matter what appliance is in the house, if there is a problem with regard to pollution it is apparent.
What I am objecting to is the potential for abuse in this section. I honestly do not understand why an authorised person in dealing with any premises has to go into the premises. Surely he or she would only have to go into the premises if there was a problem and if there was a smoke emission, because smoke emission is all we are dealing with in regard to a private dwelling. I cannot understand why there is a necessity to go in and actually go through the house and carry out plans which an authorised person could say are necessary while the people who live in the house might feel they are unnecessary. With regard to ensuring that private dwelling would comply with the Act, I do not think it is necessary to go into a house.
I referred before to the Hearths Act and the hearths' tax. Then, of course, it was necessary to go into a house and count the number of hearths because the fires might not be lit or lit only at frequent intervals. If there is a problem, it is visible; and, if it is not visible, even if there is fuel being consumed, there is no contravention of the Act.
On that latter point, if there was a prohibition on coal, for example, and a special control area order, for the matter to stand up in court, if there was blatant abuse of the law on this, I am advised that it is likely that the inspecting officer would have to see coal burning; to see smoke from the roof would not be sufficient in itself if it was a matter that would subsequently end up in court. Let me say again that I entirely sympathise with Senators' feelings on this and I share them. It is a difficult part of the Bill. I am not pretending otherwise, but it is effectively the teeth of the Bill, to borrow a phrase from Senator Durcan.
Smokeless zoning has been established all over Europe. In the vast majority of circumstances we will be giving 48 hours' notice. The way the notice is to be served will be dealt with under section 15. In the North of Ireland, for example, they give only 24 hours' notice of their intention to come in and inspect. I honestly cannot see us changing the definition, as has been requested here, of a private dwelling to include curtilages, back yards and so on if only because some of the most difficult areas we have are concerned with unauthorised development and planning and flagrant abuse of these planning controls in relation to small back yard industries. Most of those will never cause an air pollution incident of any kind and, if so, they are not of our concern. At present these industries are going on unnoticed to most people in the community. Hopefully, as I said earlier, they will grow from small apples to big apples and will provide a very useful service and create employment for all concerned. But we will have to be in a position to be able to get in and control a situation if pollution is being caused. There are examples at present of what I would call back yard industries. There is the recycling of scrap metal in part of south County Dublin and north Wicklow at present. The local authorities and the Department of the Environment have no access effectively to nail down this activity. It is causing serious pollution and is not just an isolated problem; we have had several of these instances brought to our notice over the years.
If the Bill is to be effective, if we are to be serious about human health and dealing with the pollution of our environment, in our preventive measures we have to ensure that we are left with a Bill that has some teeth in it. However, measures such as this will have to be applied with the utmost sensitivity. We will be asking for assurances in regard to what constitutes a case of urgency. It is only in a case of urgency that the 48 hours' notice will not apply. We might talk about cases of temperature invasion and other serious issues or emergencies that suddenly happen, a crisis of some kind or other, but they are an exception to the rule and will be very few and far between. Normally what we are talking about is 48 hours' notice of the arrival of the inspector. Most times that should proceed without any problem at all. It would be in the interests of all of us, our health and the health of our environment, that we have a provision that this is done, but done sensitively.
We must keep reminding ourselves what the ultimate purpose of this Bill is. We are not trying to cause trouble for law abiding citizens. We want to be in a position to eradicate trouble from the few in our community who are not complying with the laws and deal with the situation in the interest of the common good.
I agree with much of what the Minister says, but it is a little bit like speaking about the administration of the ordinary laws of the land by the Garda who in 99.999 per cent of cases operate in a sensitive and proper manner but we hear of the .001 case where people do not operate sensitively.
It is human nature.
Of course. The authorised officers under this Act will be humans also. They will not be robots; they will be humans. They will have a nature of their own also. I am not won over by the Minister's arguments at all. Her first argument was that we are dealing with small back yard industries. Back yard industries will not go away in 48 hours. If there is an industry suspected in a particular back yard, then a notice should be served giving the owner and occupier of the property 48 hours notice that an inspection will take place.
If it happens that we have a mobile van industry that goes away overnight, then we can serve recurring notices to ensure than an infringement of the type mentioned does not occur in the back yard in question. Again I ask the Minister to reconsider this matter between now and Report Stage. There are also situations where there may not be a back yard industry, where the suspicion may not be well grounded —
— and where nothing is happening, but where somebody has a hypersensitive neighbour or an unfriendly neighbour. A rural situation can develop in rural Ireland where neighbours have not spoken for several generations. Our neighbour may decide to irritate another neighbour by setting the dog warden or the authorised pollution officer against him. That neighbour may be viewing the stars in the middle of the night or the early morning and may have the arrival of the authorised officer uninvited but legally entitled to be there. That authorised officer may then decide to make plans and carry out inspections, make tests and take samples and inspect records and documents. It is not the type of thing somebody should be legally entitled to do uninvited in somebody's back yard. I would ask the Minister to reconsider this matter in relation to what I would call the domestic area of one's property between now and Report Stage.
I am not convinced by the Minister's argument. I do not accept that if there is a problem with regard to smoke it is not visible. After all, the problem in a domestic situation is black smoke, in other words, fuel that is not fully burned. If the problem is not visible there is no contravention of this Bill with regard to private dwellings. Therefore, it is not necessary to go into the dwelling.
With regard to back yard industries it would be unfortunate if we were suddenly to criminalise people who are trying to make a living in this way.
Only if they pollute the country.
I accept that the whole purpose —
Their privacy will be —
Senator Fitzsimons without interruption.
— of this very important Bill is to prevent pollution. When dealing with this Bill we must have the social consequences in mind in general. It is easy to see that we would not have pollution of any kind if we abolish industry totally. There must be a balance. If there is a back yard industry and somebody gets 48 hours notice, if there is a fire or a furnace they have ample time to let it die down. By the time the authorised officer calls, there is no contravention of the Bill. If there is a problem in this area, it is solely black smoke. It is probably not obvious to an authorised person who goes into the building. All he sees is what kind of fireplace is being used.
Therefore, like Senator Durcan — but not as eloquently — I would appeal to the Minister to consider this. This is the one section of the Bill where society in general are involved. We should be loath to let anything go through which would impinge on the rights of people with regard to their own property. As Senator Durcan has rightly said, it should be inviolable. In order to ensure that people comply with this section of the Bill it is not necessary to encroach on a person's private property.
I have listened with interest to the arguments being put for and against this section. If the section were weakened or taken out of the Bill, it would not do anything to alleviate the problem in my area. I have had experience over the years of representing and living in an area where quite a good deal of pollution has taken place.
I will explain to the House, briefly, how these people operate. They buy material in the city from Telecom Eireann and other firms and they extract a certain commodity from the material they buy. They can be prevented from doing this under existing legislation, but the problem is to catch them. Very often they start this operation on a Friday night when the authority officials have gone away for the week-end. They start at 6 o'clock at night and they are gone the following morning from premises where they are either permitted to go in and carry out the operation or premises on which they may have a lease or, in some instances, on commonage in the mountain area. I get a shower of phone calls the next morning but by the time I get them the culprit has flown.
I would not like to see this section abused. It is important to have it because these people who have caused the greatest pollution and annoyance in my area will only laugh at us if this section is not included in the Bill. The Bill would not be effective in so far as their operation is concerned. They are used to dodging and they know the times and the week-ends to do it. Very often it may be a holiday week-end when they can operate right through Saturday, Sunday and Monday. By the time I get the complaint to the local authority and get a health inspector out, the culprit cannot be found. If the operation is carried out on a premises either owned or leased by these people, they can bury the traces of it. All they need is a machine to run over the ground where they have burnt material. There is no evidence and they can continue to operate.
They may be a very small minority but their pollution affects a great number of people. We even had complaints from as far away as Terenure about an operation taking place in Brittas on the Dublin-Wicklow border. That has been constant over the past ten years. As a representative of that area, I urge the Minister to ensure that a section of this Bill will prevent or control this kind of operation. I do not want to stop these people from extracting the material because they are giving a service to somebody, but they cannot give that service at the expense of polluting the air.
In putting down these amendments we are trying to improve the legislation before the House. The definition of a private dwelling, in my view, is where people live. Senator McMahon spoke about other locations where this type of pollution is taking place but we are talking about the privacy of the individual, and people entering into his private dwelling. That is why we put down this amendment.
I did not think the Minister would have any problem with it. It is not the intention of humans to pollute their own premises or the atmosphere outside. Solid fuel fires have burned in Ireland from the beginning of time and it is only now that we are about to contravene some sections and zones at European level that this Bill is necessary. It may be necessary in certain sections but the draftsman should have provided some protection for the private dwelling.
Under section 39 there will be special control areas. I do not know whether the people Senator McMahon spoke about could be controlled under that section, or if a Bill could be drafted to cover the type of person he mentioned. They are not the type of persons Senator Fitzsimons, Senator Durcan and I are concerned about. We are concerned about the ordinary private families living in their own dwellinghouses. An official from the local authority may arrive and have access to that dwelling and this 48 hour notice might not have arrived in the post before he would arrive. I see nothing in the Bill saying a notice should be posted on a particular day. If you post it in most places on Friday, it will not arrive until Monday. That is only reasonable, because there is no mail delivery on Saturday. The most sensitive part of this Bill deals with the private dwelling and we have just arrived at it. The Minister should consider accepting this amendment and inserting the words "except in the case of a private dwelling".
I sympathise with people who are living in any area which has the problem referred to by Senator McMahon but he has admitted that not many people are involved. He rightly asks why society as a whole should suffer because of the indiscretions of a few. I accept that but, on the other hand, why should there be this potential for abuse with regard to entry into the private dwellings of society in general because of the few? There is a problem in a particular area — and, of course, it is a greater problem in an urban area than in a rural area — it should be possible to see it from the outside. In effect, we are talking about black smoke.
Senator McMahon says it may be done at night. He has a point there, but not all of it would be done at night. If an individual is suspected of breaking the law it is very easy to watch him from the outside without encroaching on his premises. Senator McMahon also referred to the burning of cables, or whatever they are, on a commonage. That is totally outside the scope of this section. We are concerned solely with the private dwelling in this amendment. If people want to break the law we are not condoning that or making it easier for them to do so, but if they do want to break the law and move to other locations if may be difficult to catch them. That is no reason why there should be power in this section for an authorised person to walk into a person's dwelling and make plans and do whatever he feels necessary at 48 hours notice.
Having regard to all the circumstances in relation to the legislation and the carrot and the stick, we dealt with the stick and with very heavy penalties. We are trying to educate people. It was the same with the Litter Act but it was not done with heavy penalties; it is done by encouraging people. If we want to give that encouragement to people, we must not ruffle their feathers by giving power under this Bill to walk into a premises virtually whenever an authorised person feels like doing so.
I would like to be straightforward about this because I appreciate the sensitivity and difficulty that Senators are having with it. I can share an awful lot of the feelings they expressed. Much of what we are discussing goes against the Irish psyche in a certain way. I do not want to give the impression that I might be prepared to take on board on Report Stage what I am not prepared to take on board here just to buy a bit of time or a bit of peace in the interim. I do not feel able to accede to what has been put to me.
One thing I would like to make quite clear to Senators, lest any Senators may have forgotten, is that we already have a very common and well used piece of legislation that does not have to give any notice under the Planning Act. Local Authority officers can walk into your bedroom, not alone to your back yard or your curtilage, if they suspect or have reason to believe that you have contravened the Planning Acts. There is no need for any notice at all.
Why not avail of that?
If you would like to subtract the 48 hours notice altogether it would make it very easy. We are, at least, except in urgent cases, giving 48 hours notice of our intention to call. This is more reasonable than the existing situation under the Planning Act. Under the Water Pollution Act, not normally dealing with private dwellings, back yards or curtilages, the officers concerned from the local authority can walk into your farmyard if they think your silage pit is polluting with no notice and see what the problem is. You would probably get a notice telling you to comply and step in line. There are far more difficult provisions in both these pieces of legislation than what we plan here.
We have the Offences Against the State Act also.
We do, at the other end of the spectrum. We have accepted the Planning Act. It has been in practice and we understand the reason for it. Planning is part of our environment. The Air Pollution Bill is to protect our environment. We are having 48 hours notice here. You have no notice under the Planning Act, if you are considered to have an unauthorised dwelling of any description. Our purpose is to protect the Irish environment and thereby protect human health.
Quite frankly when it comes to natural resources we do not have oil or minerals as yet discovered in any quantity, but we have an environment that is of the utmost importance not alone for Irish people to live and to rear their children in — we have it in trust for future generations — but to conduct business in, attract businesses from abroad to a pure environment and to attract our tourists. It is everything we have going for us and unless we are seen to be serious about protecting it and leave the teeth in this Bill we will not be doing the job we are supposed to be doing. I respect very much the advice, suggestions and help offered by Senators but I would like to be honest and not say I will think about it for Report Stage and come in here and say no to it at that stage. I do not feel I would be in a position to change my view as of this evening. I do not think I would be doing right in terms of protecting human health and the Irish environment which this Air Pollution Bill is trying to do if I conceded on this issue. I respect Senators' views nonetheless.
I appreciate that the Minister is being honest with us in that sense but she could equally come in at the beginning of the debate on Committee Stage and say she is not prepared to change anything. That is possible.
The Senator should wait until we get to the end.
I will appreciate whatever help the Minister will give us.
I do not think it is correct to say we will achieve a pure environment. Certainly it would be ideal but, as many Members said in Second Stage speeches, this is an ideal. It is impracticable. There is no way that we can get a pure environment. We must strive for that balance. I am not sure if there is power in the Planning Acts to walk in on somebody without notice.
I do not want to question that, but the penalty, if there is one, would not be anything like the penalties in this Bill. We are talking about very heavy penalties here.
At the judge's discretion, as we have been through.
Yes, but there is that discretion.
It could be £85 a day.
Yes; on the other hand it could be £95. I will not go so far as to say it would depend on the judge's humour. Judges may make different decisions. They may not be consistent. Having regard to all the circumstances, I will not say that the Minister is being obstinate but on this section, which means so much to so many people, there should be some little give. The Minister should be prepared to have another look at it and see if some concession might be made which would not undermine the section in any way but would act as the carrot to encourage people. By and large everybody, even those in the business of selling fuel, is in favour of this Bill. They want a clean environment as much as we do. Everybody does. I will be disappointed if the Minister does not undertake to have a look at it before Report Stage.
I can quite understand the point being made by the Senators and I realise that they are trying to exclude private dwellings from this section. I do not see the difference between an inspector coming in for this purpose and an inspector coming in for another purpose under the Planning Acts. Senator Fitzsimons knows that a planning inspector can arrive on the doorstep and say he wants to inspect x, y or z, the back yard or whatever it is. He inspects it. So does a health inspector who arrives on the premises completely unannounced. That happened in my place when I was in business. I was serving a customer and the health inspector was standing there.
Business is different.
It may be different, but it is much the same thing. A health inspector can arrive on the doorstep of your house if a complaint has been made about something you are doing in your house, or a sewerage blockage in your back yard, or whatever. He will not telephone to tell you he is coming. He arrives on your doorstep. As a public representative, I have often had complaints about this. I am sure many Senators receive complaints, usually from a neighbour, not from the person concerned. The only way you can handle that is to report it to the health authority. The health inspector generally arrives the next morning without any notice whatsoever. I cannot see any difference in what the Minister is proposing here. As a matter of fact, I would see this Bill as being somewhat easier because in the vast majority if not all cases notification will be given. If I complain that my next door neighbour's sewerate system is blocked and is causing a health hazard, the health inspector is duty bound to come out and inspect it. If I complain that a constituent has some health hazard on his premises or in his back yard, the health inspector arrives without notifying that person. I cannot see that happening here. It is intended only to catch the fly-by-night, the person of whom I spoke earlier, who is doing something when he thinks he can best get away with it. It is not to be used all the time. My colleagues are making pretty heavy weather of a matter for which there are precedents in legislation.
I accept that under the Health Acts there are special powers. Senator Durcan would know more about this than I do, but I think the Health Acts relating to the last century have very definite powers in special circumstances and because of health problems.
This could be a health problem.
It very well could be a health problem. Inspecting a premises to see if there is a blocked drain needs an actual physical presence on that site. This is different. I am sorry if it appears to Senator McMahon that we are making very heavy weather of it. I feel that in a sense I am protesting too much, but it is no harm to make the point. I am sorry the Minister does not accept that there is no comparison with the Health Act when it is necessary to actually go to a premises and inspect a problem. In this case here if there were black smoke, it would be visible from outside the premises. If there were a problem it would be different. It would be necessary to go in and see what was causing the black smoke. The problem could be inspected from the outside to see the extent of it.
This discretionary power is available to any authorised person to go into any premises for inspection. I do not think any Senator is objecting to that, where there is a problem which is visible from the outside. That is different. I urge the Minister to reconsider this section before Report Stage.
I was sitting doing a little bit of work over in Setanta when I heard the debate coming across on the loudspeaker and I hastened to make even more heavy work in support of Senator Fitzsimons. This could be resolved if some attention was paid to a further wording between now and Report Stage. We do not want to produce a society in which people become more and more resentful of the overweening powers of central Government or, for that matter, local government.
I accept what Senator McMahon says. We should have some way of catching people who are determined not to be good citizens and are determined to break the law. It would be necessary at least to give the benefit of the doubt to the people of Ireland that they are on the side of being responsible citizens. Therefore, I suggest that in some way this should be rewarded to allow for a softer approach, in the first instance, and to allow for the point which Senator McMahon raised. There will always be people who are determined to break the law. That is a different matter and it may have to be pursued more vigorously. The thrust of that paragraph should be softened.
I have been trying to suggest a soft middle ground. I hope I can persuade the Minister to ruminate on it between now and Report Stage. I accept section 14 (2), that is, that an authorised officer, on giving at least 48 hours notice may enter a private dwellinghouse. All I am asking the Minister to do is to extend the concept of a dwellinghouse to what I would call man's domestic area, his yard, his garden, his barns and out offices to the curtilage. If that were done it would save the citizen from the prospect of having to face the authorised officer unannounced peering in his kitchen window. That is what I am trying to prevent. That is the invasion of privacy. I want to prevent. I accept that we must balance that right with the common good. We can do so by providing for the giving of adequate notice before that very private domestic area is entered. That is why I raised this matter initially on section 7. It is the definition section and it does not provide for a sufficiently broad definition of a dwellinghouse in this context.
I will reflect on all the Committee Stage contributions here today before Report Stage. Senators know my opinion and why we need to put teeth in this Bill. I do not intend to produce any section of this Bill without teeth. If there is anything I can do to relieve the fears of Senators and to relieve the anxieties expressed today — unfortunately, a lot of what we have to do goes against the Irish psyche — and still achieve what I want to achieve, I will try to find a formula of words that will meet the ground that will suit us all. I am being honest. I still want teeth in this section. I want to achieve ultimately what this Bill is all about. To protect human health and our environment as we need to.
All I am saying is that you must make an appointment to see the dentist.
With regard to section 14 (4) where an authorised officer has such powers "as he considers necessary for the purposes of this Act", would the Minister feel it might be better to have something like "strictly necessary"? Whatever plans may be made, or tests done, or whatever other requirements there are in relation to the owner with regard to the inspection of records etc., everything done should be strictly necessary and only what is strictly necessary should be done in this case.
I do not have any strong or firm view on the suggestion which has just been made. It was not given to me in the form of an amendment. I may get the opinion of a parliamentary draftsman. We are into semantics here. As it reads, "as he considers necessary for the purposes of this Act" is quite definite and quite explicit. If we could strengthen it by saying "as he considers strictly necessary" and if technically we are in order, I will look at it.
This amendment is necessary to take account of the enactment of the Companies Act, 1986, since the Bill was published.
We have no objection to it on this side of the House, unlike the Minister.
I will try to be genuinely helpful when I make this point. This section appears to provide for five ways for the service of documents or notices which are required under this Bill. My worry is that it could be held by a court that, unless a notice is served in one or other of these five ways, it is not properly served. There may be circumstances where it is not possible to serve a notice in one of the ways specified. For that reason I feel the word "shall" should be changed to the word "may". There may be circumstances where it may be necessary for the prosecuting authority to make application to the District Court for leaflets or notice by ordinary post, or leave to serve it by publishing it in a local newapaper, or for leave to serve it in any other way. It is too restrictive and could make it very difficult for a prosecuting authority under certain circumstances. I believe, therefore, that the option should be left open to apply to the court for service in a different way should circumstances warrant it.
That is a point I am prepared to take advice on between now and Report Stage, but the word "shall" seems to be much more definite than the word "may". It is very important that we do not leave too much doubt about the fact that notice will definitely arrive in the hands of those we intend it to. I take the Senator's point and I will get advice and address that matter and see if we can accommodate it on Report Stage. I am not in a position to give a definitive reply at present.
With regard to subsection (2): Where the name of the occupier of a premises cannot be ascertained by reasonable inquiry, a notice under this Act may be addressed to "the occupier". Is that a subjective thing to decide what is a reasonable inquiry but with regard to addressing a notice to an occupier is it unique or does it apply to any other legislation?
I am assured it is not unique and that in motor rates and bills and various things the same applies. In the Local Government (Water Pollution) Act, for example, there is the precedent for it. I am sure there are many others that I cannot quite recall.
Amendment No. 12 is related to amendment No. 20 and they may be discussed together. If for any reason the House does not want to discuss them together they may be taken separately.
I move amendment No. 12:
In page 13, between lines 25 and 26, to insert the following paragraph:
"(d) nothing in this section shall be construed as requiring the disclosure of information with regard to confidential or secret manufacturing processes for any fuel”.
On these two amendments we feel it is unethical and wrong to ask any firm or any individual with regard to a secret or a trade process to divulge information that would assist competitors or might result in some disadvantage to people in business. We would like to refine them further to eliminate fuels in both cases, that it would apply generally to fuels and manufacturing process, and that it would apply in a general sense. I hope the Minister will agree that, in every circumstance where there is a secret process, or where there is information with regard to quantity or information of any other kind which would be detrimental to a firm or individual and which would be disadvantageous to others, it is wrong, unethical and unreasonable to ask firms to divulge this information. I hope the Minister will agree to these amendments.
These amendments are both concerned with protecting confidential or secret manufacturing processes for fuel from having to disclose information about themselves to the local authority. While the problems underlying these amendments may sometimes be genuine, there is no precedent in Irish environmental legislation for exempting confidential or secret processes from requirements or licensing or information established to protect human health from the environment. To accept such an exemption under this Bill would create an invidious exception. In addition, it would create an invidious distinction within the commercial world between undertakings which were able to claim that they were confidential and undertakings which could not do this. The prospect of reduced surveillance from our environmental authorities would also encourage claims of confidentiality beyond what might now be thought to be reasonable. I am not disposed, therefore, to accept either of these amendments.
Section 16 does take account of the confidentiality of the commercial processes. I would like to draw that to the attention of Senator O'Toole and Senator Fitzsimons in particular. It forbids the local authority to give information obtained by them under the section to any person other than a person prescribed by the Minister in regulations. The Minister would not, of course, prescribe private individuals in regulations of this kind. I would like to give an assurance on that. They could, however, cover corporate entities such as An Foras Forbartha, which at present manages the National Air Pollution Data Base. What is important is that information under Section 16 must be treated confidentially.
I accept that under Section 16 (4) information furnished to a local authority pursuant to a notice under this section shall not be given by the local authority to any person other than a person prescribed. Information, once it goes outside the bounds of an office or a firm, may not necessarily be given, but it can be obtained in many ways without being given. There are ways of getting information without actually handing it across. I put it to the Minister that it is rather naive to believe that, once information about a firm which had important secret information regarding any process, not necessarily fuels, but any important secret information, goes outside the walls of an office or a firm, it is no longer secret. Even though there is an attempt in the Bill to ensure that this information is not given to any competitor, nonetheless the reality of life is that there is nothing sacred about local authorities or public life, as events abroad are proving at present.
This subsection which the Minister is adamant will be included could spell misfortune for many firms. In many instances it would not be necessary to be aware of secret processes. Where after due consideration further information is deemed to be necessary, it would be reasonable to make some provision. To have this section included as part of the Bill does nothing for the Bill. As Senator Robb mentioned, it could be softened in some way so that it would not be to the disadvantage of firms.
When I first read the proposed amendment about the secret manufacturing processes for any fuel I thought that was something one consumed. With common sense and a sense of propriety it may not be necessary to have this sort of information divulged, provided the firm or manufacturing factory concerned is prepared to take as part of their warning that, if the situation does not improve, it will become necessary to find out more about the manufacturing process. In effect, one of the penalty clauses or one of the encouragements might be to place an obligation on them and if they do not comply, matters will have to be taken further.
In relation to Senator Robb's contribution, the experience in dealing with local authorities under the Planning Acts has worked in practice as he suggested. Common sense and reasonableness are the order of the day. There is no mad rush to litigation for the sake of it, in nine out of ten cases where there would be evidence of pollution. Section 16 (1) states that a local authority may for any purpose relating to their functions under this Act proceed only in this way. Where there is evidence of pollution that warning or drawing it to the attention of the proprietor, or those concerned, is usually sufficient to eradicate the problem without even going into the details of how the process is being carried out or what secret process is involved in the pollution. In most cases it will not get to the stage where there will be a need to divulge what is going on in the factory. The very fact that a problem is drawn to the attention of the proprietors or of the operators should resolve it, as is now the practice under the Local Government (Planning and Development) Act, 1963, and also the Local Government (Water Pollution) Act, 1977, and the Fire Services Act, 1981, the Health Acts and so on which in a sense are far more Draconian than what we are proposing. They do not require notice to enter and to inspect.
We are saying that notice in writing in this case will have to be given so they will be warned that we are coming. It was only in cases where there was a known lack of goodwill or consistent disregard for the law that we would have to pursue it in any depth to know what exactly is going on that is causing the pollution. If any firm are very concerned about their particular process, or the confidentiality of it, they have only to resolve the pollution problem to ensure that nobody wants to know what they are about. It is within their power to ensure that there is no unnecessary pollution.
The Planning Acts are far more Draconian, but they have worked very reasonably. Litigation has been the last resort and not the first resort in terms of resolving problems and so on. Any prospect of reduced surveillance from environmental authorities or any get out effectively, even though meant with the best will in the world — and there is very good reason in some cases to look for protecting commercial confidentiality — beyond what would be thought to be reasonable. Senators would be amazed at what would be claimed to be confidential if people thought that was sufficient cause to be exempt from the environmental legislation we are now proposing. The local authority may act accordingly and only for any purpose relating to the functions of this Act and the provision is there for confidentiality for commercial purposes. It has worked that way in practice even though it is not written into the planning laws in the Local Government (Planning and Development) Acts. Even when confidential information must be divulged to planning authorities it has never gone on public record. It is not an area we need worry about. The local authorities are practised in handling it. I would have confidence that nobody in the commercial area need have any fear that their commercial secrets would be used in a way that would be disadvantageous to them.
While I respect the points she is making, I know that that is the spirit in which the Minister will deliver this section. Nevertheless we cannot be sure all Ministers in future will be so benignly disposed. I wonder whether the spirit of what she is saying does not need to be reflected in the written word. I would think there is good reason for considering an insertion of some clause such as "in the very first instance". To try to cover this point I would think that there is good reason for considering an insertion of some clause such as "in the very first instance confidential processes and procedures need not be divulged". If that is the intention, as the Minister says it is, then is it not important that it should be reflected in the way in which the legislation is drawn up?
I, like Senator Robb, cannot accept the Minister's advice in this case. In my experience of local authorities I find that quite detailed information regarding an operation will come before a local authority if members press for the file and inspection of the premises. The Minister has outlined how she would like to see the Bill operated, but when it is enacted it is completely out of her control. It is then over to the local authorities and the inspectors to operate it; and the Minister will have absolutely no control, other than what is in the Bill, over those inspectors or the local authorities. I have the same fears as my colleagues that an offender could be asked for, and would be required to give, information which would be advantageous to competitors, information which, for one reason or another, they would not want to have made public.
I would like to see the Minister make some concession whereby, if the offence was not corrected, then the information could be sought. I fully accept the Minister's good will and what she intends, but I would not accept that the information would not be available to the general public or to elected members of local authorities. Many of them will be pressing their cases. Let us face it, most local authorities in the Dublin area will be using this Bill and are waiting for it.
Two or three years ago there were cases in my own area where we were investigating, under the Planning Acts, the operation of two factories. We had to get a detailed report of the operations of these factories. I would have a fear that an offending party would be required, under the Bill as it now stands, to give information which might eventually put them out of business. I would like to see that avoided, and strongly urge the Minister to consider this.
I, too, would like to say that the Minister's goodwill is not in question here but rather the Act and its interpretation, and the result it will have in certain circumstances. It is unrealistic to compare the situation to the planning laws. In the planning regulations and planning legislation it is a different situation. We are talking here about confidential information with regard to any process. This is important for very many firms. I ask the Minister if she cannot envisage firms that would be very reluctant to disclose this information. There is provision under subsection (4) that this information would not be given by the local authority to any person other than the person prescribed. I presume this also means that it could not be given to any firm. Nevertheless, even though that is in the Bill, there are ways of obtaining information apart from giving it. I am sure the Minister can envisage that on many occasions important confidential information would be very reluctantly given. Information, when given, could result eventually in a competitor getting that information, not through any deliberate fault of the local authority, but by reason of the fact that once this information leaves that particular firm there are ways of obtaining it. The more worthwhile it is, the more likely it is to be got by competitors. In fairness to people who are in business, this legislation should be looked at to ensure that, while ensuring there will be no pollution of the environment, we do not interfere with business in any way. The Minister should look again at this amendment.
I would like to repeat and expand a little. This information may be sought by the local authority for any purpose relating to their functions under this Act. That does not solely refer to instances of pollution with a view to prosecution or anything else like that. It could also be necessary, as a prelude to considering special control area orders, for example and it might be in the interest of the few manufacturers to know that what they are manufacturing would be exempt from any prohibition under such a control area order. It might be in the interests of the few manufacturers not to have this amendment inserted here this evening. I want to make that quite clear. I would like, also, to point out that what we would be looking for, if it comes to questioning the fuel processors about what they are about, is information on the treatment, importation, placing on the market, distribution or sale of any fuel and to furnish in writing to the Authority such particulars as to the type and quantity of fuel produced, treated, imported, placed on the market, distributed or sold by such person. We are not specifically interested in the secret formula that goes into making up a certain type of compound fuel of some kind, for example.
It could arise?
It could arise. That is why, if it does arise and if there is a need for us to know, particularly with questions of environmental safety or special control area orders in mind, we are not in a position to accept the Senators' amendment. As the situation now stands, it might be in the interest of the fuel manufacturers for us to be able to ask questions and for them to respond, particularly if there was a consideration of a special control area order. I am not in a position to take on board the amendments as presented here. I would like to reiterate and to draw attention to Senator McMahon's point which he very legitimately made. I, like he, spent many years in a local authority. It is amazing what local councillors can inveigle out of well-meaning officials across the council chamber. May I say specifically, at the risk of raising your hackles, if you are a supporter of local democracy, that you look at Section 16 (4):
Information furnished to a local authority pursuant to a notice under this section shall not be given by the local authority to any person other than a person prescribed.
We include, quite specifically, a clause to prevent in the future what you know and I know has happened under the Planning Acts. It is there to prevent that quite deliberately without developing and raising hackles. We understand the difficulties and the risks involved if it was to be for public consumption.
I do not wish to labour the point any more. The Minister has admitted that it is amazing what can be inveigled from an official across the counter.
Across the council chamber.
It is the same thing. That is the point.
It is specific and is included for that very reason. Any official who imparted such information would be guilty of an offence.
The point we are making is that the fact it is built into a Bill like this does not necessarily mean it will not happen. It may not be given, but there are ways of leaving files around, picking them up and returning them. I am not referring specifically to how it can be done. It can be done and, once this information becomes the property, so to speak, of the local authority, it is no longer confidential. Does the Minister seriously believe that if she were to ask a number of concerns whether they agreed that the section was in their own interests they would say it was? I do not think so. In some instances where enough information was not available or was not submitted at an early stage there must be a case for getting further information. In some instances, not all, it might be necessary to get some confidential information which might be suspected of being the problem with regard to pollution, but only in that sense should it be regarded in this Bill. Heavy fines will not make this Bill workable, but rather getting all the business concerns involved and interested. At present it is so difficult in business to make ends meet and in the present climate it is suicidal to introduce a Bill with a provision of this nature. I cannot press the Minister any more. I will not speak any more on it. It is unnecessary and it could be softened.
I can see the difficulty. While I spoke against what the Minister has in the Bill, I do not entirely agree with the amendment and I thought some middle ground could be found. I agree with the Minister that there is a section that prevents the information from being freely given, or being given at all, except to an authorised person. As Senator Fitzsimons has said, there are ways and means and, indeed, while I would never accuse an inspector or a local authority official of being interested in or divulging something which he should not divulge, people are only human and they can have a special interest, a vested interest, or a family interest in the business. There are ways in which it can be leaked if there is confidential information. I would like the Minister to agree to insert a section on Report Stage which would not require this information to be given in the first instance, but only for recurring offences.
It is not just offences.
Where an inspection is required, the Minister said earlier, it is only in extreme cases that the extreme provisions in the Bill will be used. I use the same argument here. Why not use the extreme provisions in extreme cases only? As the Bill stands, an inspector can seek this information on his first visit. There is a middle ground. If the Minister were to accept the amendment as proposed there would be a way out for many people who were polluting. They could use that section if it were enshrined in the Bill. I am speaking about the amendment in the names of Senator O'Toole and Senator Fitzsimons. That amendment would be giving an easy way out to people who wanted to avoid being brought to heel for something they were doing. I would like to see the Minister accepting something between what she is proposing and what the amendment proposes.
We are looking for middle ground and I think we are striving to find it. I would concede the absolute right of the Minister to have access to all information if necessary in the interest of freedom of information but, if necessary, the timing and the need for it are all important. We must seek that information if possible without compromising the activities of the manufacturing firm or of the people concerned. I support what Senator McMahon has said that, in the very first instance, confidential processes and practices need not be divulged.
I think inadvertently Senators may be under the impression that section 16 involves the physical entry and inspection of these premises, but it does not. A local authority may, by notice in writing require occupiers of premises and so on to furnish in writing to the authority such particulars as indicated here. In this section, we are not talking about physical inspection. It is for strategic planning, consideration, for example, of special control area orders, or any other issue directly relating on the functions of this Bill and this information may be necessary.
That is quite reasonable — an exchange of letters — and if there is any question or worry about information being concealed they can go back and ask is it true and question it further. It would be an offence to deliberately mislead. I think it is reasonable enough for the sake of the local authority, for the sake of strategic planning, particularly our bigger fuel manufacturers, for us to have some idea of exactly what they are capable of and what their process is, not the detailed manufacturing process but just to know how they are operating in overall strategic planning, particularly with consideration to a special control area order. It is purely an exchange of letters we are talking about at this stage under section 16. I hope Senators were not inadvertently misled.
An exchange of letters, but it is information in the letters that we are discussing. It is confidential information. Certainly we are talking about an exchange in written form. We understand that. It is the secret process, the confidential information, which is the problem and following the enactment of this Bill, if a local authority look for this confidential information, it will be a serious offence for any firm or individual not to provide the information and they will be liable to the heavy penalties which are included in the Bill. There is no point in trying to influence the Minister any further, but to take the view that it is a simple exchange of letters is to misrepresent, or at least misunderstand, the power in this section of the Bill. It means that, if a local authority decide that they want full information, including confidential information, including information about a secret process which any firm would have, the firm must provide that information in written form.
Once that is done, although the local authority are precluded from divulging that information, there is the possibility that it will come to the notice of competitors or others who want that information. The more important the information is the more likely it is that an attempt will be made to get that information. I agree with what Senator McMahon said about information with regard to a secret process or confidential information about a firm. In that context we ask the Minister to have another look at the section.
Would Senator O'Toole and Senator Fitzsimons consider the possible addition to their amendment of the words "in the first instance"?
That assumes there was an offence in the first instance.
In regard to confidential secret manufacturing processes for any fuel, I am not so sure that it does.
Perhaps I could draw to the attention of Senators the fact that this information could be needed for any purpose relating to functions under this Act, not just in cases of pollution. For example, in the drawing up of air quality management plans and standards of maintenance there is a special control area order so, whatever else, environmental planning may be necessary. If the first instance suggests there is something wrong, we warn them and, if they do not put it right, we can act accordingly. It is a broader provision. We are not primarily considering pollution instances. It is purely to gather information if it should be necessary for strategic planning. Just a few points as a final contribution on this.
Of course that would create a bigger problem for many reasons and not just problems relating to information on pollution.
I take the Senator's point. The Minister for Energy already gets returns from fuel manufacturers with most of this information we are talking about. The Local Government (Water Pollution) Act, 1977, already empowers them to get any and all of this information if they deem it necessary under their regulations. The factory inspectorate laws allow, with notice, people to walk into any industrial premises and inspect in detail the manufacturing process of any kind and get information thereof in far greater detail than we envisage here. None of these other areas of legislation includes any confidentiality as we do.
Section 16 takes account of the confidentiality of commercial processes. I must reiterate that in case we lose it. It forbids a local authority to give the information obtained under the section to any person other than a person prescribed by the regulations and that can include councillors too. The Minister would not, of course, prescribe individuals in regulations of this kind. We are dealing with human nature, but there is nothing we will talk about in this House or in the other House that will not fall down on the fallibility of human nature. We have to make the law as tight as possible to prevent abuse by any or all sections. At the end of the day there are very few laws that nobody has found a way around. It is not our intention to threaten in any way commercial processes or the process of fuel manufacturers. This legislation protects confidentiality, whereas other areas of legislation make no attempt to do so — for example the Local Government (Water Pollution) Act, 1977, the Local Government (Planning and Development) Act, 1963, and the Services Act.
On the Minister's own admission information can be extracted from correspondence. Any correspondence coming from an individual to a local authority will be filed. Those files will be available to the people working in the local authority. In the other Acts mentioned by the Minister confidential information we do not want disclosed, and that on a firm's manufacturing process, can be extracted perhaps on a visit by a particular officer. On the Minister's own admission this information can be elicited through the post and can be recorded in documentary evidence. Surely if a firm disclose their manufacturing process on a document, when that document is sent to a local authority everybody working in the local authority has access to it. The amendment seeks to protect the confidentiality of the firm's manufacturing process. If the Minister is now saying that can be got through the post or through documentation ——
It is stated in the section and that is what the section is all about.
The Minister said it can be got by post rather than by trying to elicit it in a physical way by calling to the premises. I suggest to the Minister that it would be documentary evidence that would have to go on file because every document between a local authority and a person will have to be filed. Then it will no longer be confidential.
I may have led the Minister astray in my previous contribution because I dealt with a visit of an inspector to a premises. As she has rightly pointed out the information is required to be given in writing. I accept the section which requires that this information should be confidential. We have gone over the ground as to how seriously manufacturerss will treat that section on confidentiality. A person may be manufacturing a product, for example the advertisements for Brennan's Bread with which we are bombarded every day on the secrets in the manufacture of the bread. Firms manufacturing fuel would not want to disclose the components of the product. If they are required to put that information in writing and eventually it is found that they may be polluting and there may be a prosecution, that will come out in a court hearing. They will be very reluctant to put it in writing. By leaving the Bill as it is, the Minister is putting the firm in the position of having to get a notification from a local authority to supply information on how far they must go. Under the Bill they must go the whole way whereas the amendment gives a wide scope to many people to withhold information.
I do not agree with either the Bill or the amendment. There must be a middle ground. Why do we need this information? Why do we so desperately need this information if there is not an offence? I do not think it is required if there is no offence. It is only in the case of an offence or with a recurring offence that the detailed information should be sought. It will affect very few people. I do not see that to have it changed will affect the Bill to the great extent the Minister obviously feels it will. I appeal to her to find somewhere in that middle ground to cover the points being made by all the Senators here except my two colleagues in front of me. We all seem to be at one on it. While there has been no give from Senators Fitzsimons or O'Toole, nevertheless I think they would be happy if there was something found in the middle ground between their amendment and the Bill as it is.
I think it is unfair of Senator McMahon to say that there is no give on our side, because that is not true. If anybody else suggests a phrase that is acceptable we will have no objection. I would like to reassure Senator McMahon on that point. Senator McMahon does not agree with the Bill and he does not agree with the amendment. I can understand his reasoning. I have no objection to that. I want to make it clear that we will agree to any amendment which takes into consideration the problem in this area. I agree with Senator McMahon that very few firms would be involved, but that is not the issue. The fact that a number of firms might be involved is important to remember.
With regard to the suggestions made by Senator McMahon, we would agree to an amendment which would seek to procure this information as a last resort. I think that, even where confidential information is involved and even where a secret process would be involved, in many of those cases it would be possible to get sufficient information without looking for that confidential or secret information. All we are asking is that, in framing this particular section, that would be taken into consideration in such a way that if the initial information supplied was not sufficient then it could be possible for a local authority to go back to those firms and get the further information required, even where this involved a secret or a confidential process. To give a local authority this power simply by writing a letter and criminalising firms who would not supply total information with regard to their processes is wrong. If the Minister would look at it again — and I am not altogether optimistic that there would be any great change — but if the Minister would look at it sympathetically to see if some amendment could be included to frame it in a way that would look for this information only as a last resort, Senator O'Toole and I would be satisfied.
There is no question of criminalising any firm or company who will not disclose total information in relation to this. I refer you to section 16 (1) (c) which includes very generic requirements in terms of the information to be supplied. It mentions the type and the quantity of fuel produced, treated, imported, placed on the market — mainly how it is handled once it is distributed or sold by such a person. That is generic information that we are looking for from the fuel manufacturers. We do not look for the detailed secret processes of manufacturing, if they should exist. There is no question of that. We feel that section 16 takes account of confidentiality. No matter what impression some people here this evening might have given of local authorities staff and access to files, even if they are confidential or not, all I can say is that the provisions of this law will be legally binding on the local authorities to ensure confidentiality. It is up to those who enforce the law to ensure that it works. We cannot assume that there will be laxity among the local authorities staff before we start off in relation to that. I accept and understand some of the fears that have been expressed. I feel they will be groundless in practice. It is generic information for proper planning and procedures that we want for consideration of special control area orders. I think it is reasonable. Every effort is being made to protect confidentiality. We are not interested in the detailed manufacturing process under subparagraph (c). It is generic information that we are looking for under this.
I really think it is unfair of the Minister to introduce the emotive element in the way she does with regard to laxity on the part of local authority officials.
I am not in any way suggesting laxity. It is unfair of the Minister to come to that conclusion. In my contribution —
I was not being personal to you, Senator. It would not be confidential because it would be in local authority files. That assumption has been all through this.
In all my dealings with local authority officials certainly I have no complaint with regard to confidentiality. As regards civility, in any way you might like to mention I have always admired and taken off my cap to every local authority official that I have had to deal with. We are dealing here with a human situation. I realise that the Minister is not going to yield to this and I am not going to press it any further. The point of view that we are expressing and that we tried to implement through our amendment here could be incorporated easily in the Bill if the Minister were disposed to do it. I do not think the Bill would suffer. In my view, what the local authority is looking for in section 16 (1) (a) is details of any activity or process being carried out on the premises, any fireplace in the premises, and any fuels or other materials being burned on the premises. That is one part of it. In that area I feel that to accommodate in some way the point of view we were making would not take from the Bill and would, in fact, improve it. Everybody is agreed that we are only concerned here with a small number of firms and a small number of instances. Therefore, it is something that would not have very serious implications with regard to the implementation of the Bill. From that point of view I am disappointed that the Minister would not agree to have another look at it before Report Stage to see if in those cases we have instanced accommodation could not be made for them in this section of the Bill.
Amendments Nos. 13 and 14 are similar and may be discussed together.
I move amendment No. 13:
In page 14 subsection (1), line 11, to delete "may" and substitute "shall".
We feel this is a very important section in the Bill because it deals with research into air pollution. It should be mandatory on a local authority to carry out research. There is the discretion in the Bill, as it is drafted, that a local authority may decide not to do so. We would further feel that perhaps to tighten it up further with regard to our amendment it should read as follows:
A local authority shall, where it appears necessary after detailed analysis and research, organise and conduct research surveys and investigations into the nature and extent, the cause and effect and the prevention or limitation of air pollution and may establish and maintain educational programmes relating to such matters and shall publish or cause to be published any information derived from any such research surveys and or educational programmes.
The point I am making is that it should be mandatory on every local authority, not necessarily alone but perhaps in some instances with other local authorities. Where a number of local authorities boundaries might coincide and their areas would be contiguous they could, because of the cost involved, organise research in that way. We feel it is necessary to carry out this research and it should be mandatory on regard to local authorities.
I appreciate that the motive behind these amendments is to see this section being fully operated and research on air pollution established comprehensively. However, I ask Senators to consider whether they would wish the section to place an obligation on all 33 local authorities under the Bill immediately to begin research on air pollution without any reference to local need or to overall national priorities in the area. Similar provisions enabling local authorities to undertake or financially assist research are contained in sections 6 and 15 of the Local Government (Planning and Development) Act, 1963 and section 29 of the Water Pollution Act, 1977. These are all stated in permissive rather than mandatory terms —"may" rather than "shall". On a point of drafting, the amendment, if accepted, would place a mandatory requirement on local authorities under subsection (1) to carry out research themselves and leave them with the discretionary power under subsection (2) to support or resist this kind of research by other parties. The Bill, as it stands, allows the flexibility of these powers being used as alternatives. If the amendment were accepted, subsection (2) could not be used as an alternative to action under subsection (1).
What is in mind is scientific research rather than handing over research, as is meant by the Bill, to a group of people who may not be authentic and, indeed, in the final analysis to finance a group of people. What we are saying is that, before you take a decision or go into controlled areas or something like that, it should be mandatory on the local authority to have a scientific research carried out. What is in section 18 is a very loose application of research into air pollution: "A local authority may organise and conduct research, surveys or investigations into the nature and extent, the cause and effect, and the prevention or limitation, of air pollution and may establish and maintain educational programmes." Local authorities could carry out educational programmes in social centres and in schools and places like that. A local authority may contribute to any person or persons engaged or proposing to engage in any research, survey or investigation into the nature and extent, the cause and effect, and so on. If the Minister could tell us the particular persons or body of persons she has in mind to carry out this investigation and educational programme relating to such matters, then we may be able to accept the section. However, it is a loose application of research on air pollution and before we can implement or compel or bring about fines or convictions that we must make it mandatory on the local authority. Under this section you are letting this type of work be carried out by persons or bodies of persons without defining either the type of person or the type of body that is going to carry out the research. That is a very loose application of research into pollution. Indeed, a company or a body could set themselves up as people in a position to carry out air pollution research, but they may not have any knowledge in that field.
I believe that the only real survey one can carry out is a scientific survey rather than this survey under section 18. This is too loose an application. We must define the persons we intend to give this research to. I believe that, in order to get the proper results and to have authentic returns, competent people must be engaged in carrying out this research. The only way to do that is make it mandatory on the local authorities to carry out scientific research rather than the research that is mentioned here in section 18. If we go back to the controlled areas, which we will be dealing with later on in the Bill, we see that, under section 39, you cannot have a special controlled area unless scientific and mandatory research is carried out by people who are qualified to do so. That is why we feel that this is a very loose application under section 18.
In supporting the amendment I certainly would ask Senator O'Toole not to tighten up the wording too much, because I think that the important thing in the area of pollution, just as it once was in the area of litter, is to raise the level of awareness in the local community about the problem. If you have the expert committee or the expert scientists doing the job, because the local authority are told that they shall do so, at the end of the day, no matter how good the report, it will make not one whit of difference. In fact, it may even create a certain degree of resistance among the local people, who in the final analysis, will be responsible for ensuring that we have an unpolluted environment.
I think this is a very subtle question. I like the idea where you have that phrase "maintain educational programmes". I am quite certain that we are processing children rather than putting them through a period of development, and in many cases for all the wrong things. They come out unaware of what is happening in their community and so on. I would just like to say that, in supporting the word "shall", I would certainly not like to see the wording here constrain the local authority into the realm of experts. I say that with feeling, because I well remember what I said when the Litter Bill was being discussed here. I can assure you there is as much litter in Ireland now as there was four years ago.
As a member of a local authority, I know what Senator O'Toole is talking about. He wants the section tightened up. If we look at the separate administrative bodies throughout the country, some of them will never have a pollution problem. If we legislate for all of them, then they will all have to comply with this section in spite of the fact that there may never be a need in a particular county to initiate research into this area. As a member of a local authority I would say that once the legislation is there to empower the local authority if they so wish to do it, members will insist that, if there is a problem, research should take place and should be carried out. They would insist that the manager, if he was in default, would ensure that it was carried out. A local authority could never take anybody into a court without carrying out these tests.
In regard to subsection (2), my local authority have on numerous occasions brought in experts in fields that we felt we were not competent to deal with, experts from such organisations as An Foras Forbartha, the IIRS and, indeed, people from abroad, where there has been major industrial development in an area which can create problems. There are times when local authorities must resort to outside expertise. There should be a certain flexibility shown to the manager, to the members and to the engineers to decide which way they should turn for assistance. We have the power in this Bill to do that.
Under the section as it stands, if there is a necessity, then naturally the members will ensure that the procedures shall be carried out. The word "may" in regard to these local authorities means that they will not have a problem of being bound legislatively to do something that it would be unnecessary to do. I realise that the concern is to make sure that local authorities do function where there is a problem. Members will ensure that they will function and the section will allow them to do that. The other provision would make it obligatory on all county councils and corporations.
I appreciate Senator Ferris' point of view, but the question is: how does a local authority know whether or not there is a problem if they do not carry out a proper scientific survey? How do they come to a conclusion that there is a problem? The local authority has very great powers under this Bill, or will have great powers, in relation to terms and provisions relating to air pollution, prohibition of certain emissions, licensing of industrial plant and special control areas. Local authorities have very great powers. We should ensure that those powers should be used properly.
The Minister mentioned the number of local authorities. I am not in any position to know how costly an exercise it would be to carry out the necessary research. I do not think it is all that costly. As I said at the start, a few local authorities could get together. It does not mean that every local authority would have to have its own officer in this regard. I presume that urban authorities would fall under the aegis of the different county councils throughout the country. In regard to cost, I do not see any problem. It is necessary — and any reasonable person would agree — that a local authority could not exercise the very great powers they have in this Bill without carrying out a proper scientific survey that could stand up to questioning and examination. There are set standards.
While I agree with what Senator Robb has said, nevertheless this is an area where experts should be involved. We have the experts in the IIRS and An Foras Forbartha. In other areas it is not that costly an exercise, but it is very important. It is fundamental that this research should be carried out at the start to see if there is air pollution and to see to what extent air pollution exists. There is no way that I know of that we can arrive at this conclusion without carrying out proper scientific surveys. The cost will be minimal. It is a secondary consideration. The Minister mentioned the Water Pollution Act which was passed in 1977. The Water Pollution Act has done nothing for this country. We might as well not have it on the statute books.
I disagree entirely.
That is the Minister's opinion. Perhaps I should change that to say that it has had a minimal impact, but I can see the situation in my own county. I could stand here for a long time recounting where the Water Pollution Act has meant nothing. Specifically in relation to this, I will follow the line of Senator O'Toole. A scientific survey should be mandatory and obligatory before any local authority would set out to implement any of the regulations in this Bill.
In passing I would like to say that I am glad, with regard to a financial contribution, that it is a reserved function. I am always happy to see reserved functions included in Bills. We have three of them in this Bill, in sections 18, 39 and 46, and I appreciate that very much. Nevertheless, with regard to a financial contribution I do not think there are many local authorities that would be in a position to make any kind of contribution at this time, and indeed, in the foreseeable future.
We might get the land tax then.
He is making reference to the next Government.
You are going to abolish it.
I am glad that this is a reserved function, but the financial contribution from the local authority will be minimal. In reality, the Minister for Finance should be the person who would be responsible for making the financial contributions. I certainly would be happier to see a situation where, on the recommendation of a local authority and as a reserved function, that there would be some obligation on the Minister for Finance to make a contribution.
Amendment No. 15 is to correct an error and to put it beyond doubt that the reference is to regulations under this section.
I note that this conforms to the Local Government Services (Corporate Bodies) Act, 1971, but in reality it seems that this unsurps the function of a local authority. The power is there and it is incorporated in the 1971 Act. Could the Minister tell us if it is likely that this provision would be brought into operation on many occasions?
Experience of the operation of the Bill may show that certain functions could more appropriately be carried out by a body other than a local authority. For example, certain monitoring could require a high degree of expertise and access to specialised facilities which it might not be economic for an individual local authority to provide. In such a suituation it may be conventient to arrange that certain specialised functions be carried out on behalf of local authorities by a body operating at national level — for example, An Foras Forbartha.
It seems to me that this takes quite a substantial amount of the power from local authorities. It has the potential to do so. Quite frankly, I would be happier if this were deleted from the Bill. It seems that it is left to the discretion of a Minister to decide, by regulations, what functions he would confer on local authorities and what functions he would not confer on a local authority. I am not sure I would be happy that a Minister might decide, from the point of view of cost, that an operation would be too costly for a local authority. Surely in these circumstances a local authority might make application to a Minister rather than a Minister initially coming to that conclusion? I am unhappy with this provision. Have the provisions of the 1971 Act been implemented on many occasions? Depending on the answer to that we could come to a conclusion as to whether they would be implemented with regard to this Bill in the future. Perhaps the Minister has that information available.
I support Senator Fitzsimons in this regard. I should like the Minister to spell out the circumstances. I understand it would be only in the event of a local authority failing to carry out their functions that it would revert to the Minister to ensure that there was a proper level of control in force in a particular area. If for some reason a local authority did not carry out their functions naturally the Government would have overall responsibility. I take it that in all cases of which we are aware, the local authority would be the appropriate body to carry out the function and as in a previous section would seek the assistance of some other people in carrying out that function. I should like it written into the Bill that, at any given time, at the discretion of the Minister, he would have power to decide to transfer all the functions under this section to a body other than what we would consider to be the responsible body in an area in which members would have an input. I hope this would obtain in specialised cases only as a result of the neglect of the local authority to perform their functions.
What does the transfer of functions to "such other persons" mean? Also, as contained in subsection (2) — a body established under the Local Government Services (Corporate Bodies) Act 1971 — what circumstances would demand a transfer of functions or at what time would the Minister decide on a transfer of functions from a local authority?
No specific functions are in mind at this point nor indeed is there any specific body in mind. This is an enabling provision, should it be deemed more expedient by this Minister, or any future Minister, to have any function or functions related to this Bill carried out centrally, for example, perhaps by An Foras Forbartha for a group of local authorities. Or it could be done regionally, or by the IIRS or even, as happened in Dublin recently, where the Warren Spring Laboratories were called in to do monitoring and surveys in relation to air quality and standards. There are precedents in relation to the handling of the computer services for local authorities, or for road safety. Generally it applies to specialist areas where the economics and practicalities would dictate that it would be done under central direction rather than by each individual local authority. We are not talking about any particular function or any particular corporate body or individual. It is enabling legislation to allow it to be done as exists in other legislation, if in the future the Minister should deem it worthy.
I do not think it is as innocuous as the Minister contends. Subsection (1) states:
The Minister may, by regulations provide that any function conferred on a local authority under this Act shall, in addition to or in lieu of, being performed by a local authority, be performed by such other person (including the Minister or another local authority) or body of persons as may be specified.
In reality there is great power conferred on a local authority under the provisions of this Bill.
We have just amended a section to delete "Act" and insert "section". It is to this section that the Minister's amendment relates.
Is the Minister's amendment not in relation to subsection (3)?
Senator Fitzsimons is correct in his assumption.
Therefore, this Bill, when it becomes law, will confer great power on local authorities. The 1971 Local Government Services (Corporate Bodies) Act is a short Act. But is gives a Minister power to confer power on persons, power that should be exercised by a local authority. Under this section the Minister may, by regulations, provide that any of the functions conferred on a local authority, shall be carried out by private individuals. That does not answer the question posed by Senator Ferris. For example, would it apply only where a local authority did not fulfil their obligations under this Bill? The Minister did not reply to my question. Perhaps the information is not available at such short notice. Would she say whether and on how many occasions in the past a Minister has implemented the provisions of the 1971 Act in relation to some function of a local authority?
As Senator Ferris said, the elected representatives are the people who should come to a decision bearing in mind in particular section 18 and the other two sections relating to the reserved functions of local authorities. It is very important that the elected representatives be enabled to exercise their functions and power in regard to this Bill. But as it stands the subsection says that the Minister may, by regulations, take these functions away from the elected representatives. I would be happier if this section were excluded from the Bill. The Minister might reassure the House by informing us of the number of times in the past — and I hope they were minimal — the provisions of the 1971 Act were invoked.
I will take the last point first: the number of times the provisions of Local Government Services (Corporate Bodies) Act has been invoked. There were several occasions — the Fire Services Prevention Council is one that was formed under this Act; the Local Government Staff Negotiations Board is another, all very bona fide corporate bodies, set up specifically with something particular in mind.
Another reason this section is necessary in relation to a Minister transferring any function or functions from a local authority in relation to this Bill is that there are certain national requirements demanded of us now by EC law in relation to environmental standards and pollution prevention measures. In some instances it might be more prudent for the Government to carry out an overall national survey, or a regional survey, monitored and controlled centrally, or by a specialist authority, rather than leave it to the devices and resources, or lack of same, of individual local authorities to compile necessary data for the EC. That is another reason the Minister may need certain co-ordination and some central direction, or indeed a specialist body to assume some of the authority or some of these functions on different occasions.
The Minister is very convincing. Taking all circumstances into account I do not think the provisions would be as innocuous as that. The Minister has power here to take whatever functions he or she wants from local authorities.
Under this Bill? There are no other functions under this Bill.
He can invoke the provisions of the 1971 Act to make individuals responsible for something that should be carried out by a local authority. That is the position as I see it. It does not relate to what Senator Ferris mentioned where a local authority might fail to fulfil their obligations under this Bill.
No. Perhaps I did not make myself especially clear. I reiterate that the provision and the reference here to the Local Government Services (Corporate Bodies) Act, 1971, is purely that the Minister may refer to a body set up under the Act any of the functions of this Bill, as they relate to a particular local authority, for the reasons I have already given: that it may be better or more prudent to direct a specific function centrally. It might be necessary to comply with certain EC directives that we had a national survey rather than depend on the resources and abilities of individual local authorities.
But is that not the same thing — a body set up under this 1971 Act?
It could not be an equivalent body to An Foras Forbartha or the IIRS. For example, the Fire Prevention Council was set up. We have in mind a specialist body with a particular function. We have no particular body in mind, I hasten to add. We are not trying to be clever here in any way. This is enabling legislation, an enabling provision for the future for the Minister, as has existed in other environmental legislation and has worked very well.
I feel less convinced now that this should be included in the Bill when the Minister refers to EC regulations, where these surveys are not being carried out by a local authority.
To have a uniform approach throughout country, for example.
Whatever the reason, the Minister has the power to take some of the functions from local authorities.
The functions as conferred by the provisions of this Bill. I am not talking about the broad functions of local authorities.
I take it for granted that we are dealing solely with this Bill. We are dealing with air pollution and the obligations under this Bill on local authorities. If a Minister comes to the conclusion that a local authority is not moving fast enough, that they are not conforming to the regulations that we must observe as members of the EC, then the Minister can take from that local authority whatever functions he decides and gives them to a body set up under the provisions of the Local Government Services (Corporate Bodies) Act, 1971.
— among others. That is just one example of who may get the function. It could be another person, including the Minister, or another local authority. Perhaps the single local authority unit might not be sufficiently big to service the control of quality air pollution, or whatever. That is just an example; it is not the sole possibility.
Yes, but what I am objecting to is that the Minister would have power to take from elected representatives an important function conferred under this Bill. In circumstances in which a local authority would be attempting to perform these functions properly I do not think it proper that a Minister could take a unilateral decision that he would take those functions from a local authority and hand them over to a body. I do not want to labour the point but I am unhappy with that situation.
I might refer to the Minister's functions in this regard specifically concerning regulations. My understanding is that the power given to the Minister here is for the purposes of uniformity. I agree that uniformity is necessary rather than have different local authorities acting in a higgledy-piggledy fashion. What I would like to know is: where a Minister would make regulations in this regard would a local authority have any power to vary those regulations in given instances?
Section 22 provides for power to make charges for emissions in accordance with regulations made by the Minister. I might ask: what regulations? The charges are not specified in the Bill. Will they have to be paid by the Minister? I wonder would the Minister elaborate on that. The regulations are not outlined in the Bill and the charges are not specified. Would the Minister elaborate on that section?
In answer to Senator Fitzsimons' query as to what discretion would be left to the local authorities to impose different charges, for example, if the Minister made certain regulations, I would draw his attention to subsection (2) (d), where it says:
(2) Without prejudice to the generality of subsection (1) regulations under this section may make provisions for all or any of the following matters...
(d) enable a local authority to make different charges under this section in respect of different emissions and in different circumstances;
This section generally empowers local authorities, in accordance with regulations made by the Minister, to make charges in relation to emissions. Comparable provision is contained in the Water Pollution Act, 1977, for making charges in relation to the discharge of effluent for which there is a well-tried and practised precedent. Economists have argued that pollution arises from market failure in that producers tend to ignore the external cost caused by their activities and that this can be corrected by the use of emission charges. As yet, there has been only limited use in other countries — for example, France — of charges in the air pollution area. The concept has not been espoused by the EC. However, it is considered prudent to allow for the possibility of such charges as they may yet have an important role to play in environmental control. I reiterate that there is a well-tried precedent under the Water Pollution Act, 1977. Local authorities already have many specific powers of charging for services and, in general, powers provided in the Local Government (Financial Provisions No. 2) Act, 1983. This section is not about charging for a local authority service. Its charges are rather intended as a deliberate penalisation of emissions in accordance with "the pollution pays" principle, so as to discourage and reduce the more environmentally harmful emissions.
I appreciate that a local authority have power to make different charges under this section in respect of different emissions and in different circumstances. It seemed to me that that would be set out in the regulations made by a Minister. In other words, my understanding is that a Minister would make regulations with regard to emissions in different circumstances. The question I asked, and which I hoped the Minister would answer — perhaps it is not all that relevant — is this: have a local authority power to vary an emission under a regulation made by the Minister?
I am advised that a local authority will only have the type of discretion as outlined by the Senator if the regulation makes provision for a range of charges. Only in those circumstances could the local authority have discretion in relation to the actual regulation.
This is the only section under which I have been able to discover a reference to a nuisance. In reply to an earlier question of mine the Minister did say that, in this instance, "nuisance" would be taken in its ordinary meaning. With regard to problems which may be encountered by way of nuisance — which are dealt with under the Health Act, 1898, is there not a case for a re-definition of the word "nuisance" as it is to be understood in relation to the provisions of the Bill? The main problem with regard to the 1898 Health Act is that the penalties are too small. In many cases, the problems arising cannot be dealt with properly because of inadequate penalties. Here the word "nuisance" might very well be defined, so it could in some way be incorporated into the grounds for penalty. The penalties in this Bill are very substantial. In one instance before — while I contended that perhaps they were somewhat on the high side — here a case could be made for a legal definition of the word "nuisance" as it will be construed in accordance with the provisions of this Bill.
Unlike the section we tried to amend, the Minister has omitted the "private dwelling" from this one. This section requires the occupiers of all premises except private dwellings, as defined in section 7, to procure the best practical means to limit and, if possible, prevent emissions from the premises. This is something I cannot understand. There is nothing wrong with emissions from a "private dwelling" under this section. But the Minister was very concerned with getting her agent into the privacy of "private dwelling" under an earlier section. Here there appears to be nothing wrong with emissions from a "private dwelling". I cannot see any sense in the Minister omitting private dwellings here when she was concerned in an earlier section with gaining access to those premises. That is something I cannot understand. That is why we have been very vocal in trying to push our amendment. It appears that under this section it is all right for private dwellers to pollute by way of emissions from private dwellings. I cannot follow the logic of that. I go along with my colleague Senator Fitzsimons when the mentions a "nuisance". I should like the Minister to tell us why, in this section, she is not concerned with the private dweller while in in earlier one she wanted her agent to encroach on the privacy of the "private dwelling".
This section imposes a general obligation on the occupiers of all premises, other than "private dwellings", to use the best practical means to limit and, if possible, to prevent air pollution. I might say to Senator O'Toole that emissions arising from any premises, including "private dwellings", should not be made in such a manner or in such quantity as to be a "nuisance" to any person. "Private dwellings" are included where "nuisance" is involved. The section also sets out a number of good defences to a charge of contravening the section.
Subsection (1) imposes the obligation on the occupier of any premises, other than a "private dwelling" to use the best practical means to limit and, if possible, to prevent an emission from the premises. The term "best practical means" is defined in detail in section 5 — we spent some time with that this afternoon — and embodies the concept of reasonableness, account being taken of environmental as well as financial and technical considerations. "Private dwellings" are excluded from the general obligation under this subsection because emissions from them are individually small and most significantly relate to smoke.
Special regulations on smoke covering all premises may be made under section 25. It would also be excessively complex to enforce the use of the best practical means in relation to the one million or so premises which count as "private dwellings" under the Bill in this instance. As a matter of interest, considerations of this kind exclude single dwellinghouses from the general duty of property holders of fire prevention, under section 19 of the Fire Services Act, 1981. The powers of Part IV of the Bill, dealing with Special Control Areas, will, of course, be available to deal with emissions from houses and any other premises within defined problem areas.
Senator Fitzsimons expressed concern about the lack of definition of the word "nuisance". The meaning of the word "nuisance" is a very well-tried concept in our courts, very well understood by the Judiciary. In fact, it is taken as its dictionary definition when it is not specifically defined in this Bill. It has a very broad definition which applies to far wider concepts than just air pollution, which is one of the difficulties of including it. We covered this ground earlier. I might refer the Senator to my response to that point earlier in the afternoon.
We should have a definition of the word "nuisance". I know that "nuisance" is defined in the Public Health (Ireland) Act, 1878, section 107 (subsections 1 to 7).
That is right.
I do not have to recount them here. Its usage in this Bill is not sufficient in present-day terms. I am sure the Minister will agree with me when I say it hardly could over 100 years later. There is a necessity for a definition. Specifically, in relation to one of our later amendments — a definition of what constitutes a "nuisance" would be helpful. We have an amendment down in relation to the problem of smell. At present there is practically no way of dealing with this problem. I know that first-hand because my local authority in Kells have encountered that problem. In an important Bill of this kind — as far as I have been able to discover — we have a reference to "nuisance" only in subsection (2). From that point of view the Minister is missing an opportunity. Indeed my local authority are not the only one who have encountered this problem. The problem of smell is almost impossible to deal with, that of, say, a container which passes through the town.
With respect, section 4 (3) covers smell. I might refer the Senator to it in terms of definition of air pollution.
I suppose ——
Would the Senator report progress?
May we fininsh off this section; it would be neater? Perhaps the Minister would indulge us.
I was trying to, but I was told earlier on today, that we would adjourn at 11 p.m.
The Oxford Dictionary definition of the word "nuisance" is:
1. Injury, hurt, harm, annoyance.
2. Anything injurious or obnoxious to the community, or to the individual as a member of it (especially as an owner or occupier of property), for which some legal remedy may be found.
(b) In more general use: Anything obnoxious or annoying to the community or individual by offensiveness of smell or appearance, by causing obstruction or damage etc.
(c) Applied to persons.
(d) A highly obnoxious or troublesome practice, institution, state of things etc.
(e) A source of annoyance; something personally unpleasant or disagreeable.
There are more definitions but that is the important part of the explanation of the meaning of "nuisance". With regard to the later amendments relating to the problem of smell and noise, for example, the meaning "a source of annoyance" would cater for that amendment. It would not be stretching credulity too far to deal with airborne sound in that area. One of the reasons Senator O'Toole and I included that amendment earlier was that we could deal at the later stage with noise. We know the various meanings of "nuisance" but to create a nuisance is not an offence under this Bill.
It is under section 24 (2). We passed the definition section earlier in relation to the definition of the word "nuisance".
That is the one I am dealing with. A person who creates a nuisance is not guilty of an offence under the Bill.
Section 11 (1) states:
Any person who contravenes any provision of this Act or any regulation made under this Act or of any notice served under this Act shall be guilty of an offence.
Is the Minister saying that, in relation to the problem created by, say, a vehicle passing through a town which creates a problem of smell, whoever owns the truck or whoever is responsible for it would be guilty of an offence?
This relates to stationary sources such as premises. The vehicle passing through a town would not ——
I do not think there is legislation to cover that.
Not is this Bill but elsewhere.
At present it is possible for a local authority to prepare bylaws to deal with that problem. In that regard the problem is that the penalities are too small.
There are penalties.
The Minister spoke about the Bill having teeth. In regard to this problem the Bill has no teeth. Here is an opportunity to deal with a problem that many towns experience at present and the Bill is not taking that opportunity. It is a problem in relation to air pollution. Whether it is stationary or mobile is immaterial so far as a town, the tourism industry and the people who live in the town are concerned. It is a pity the word "nuisance" has no definition within the meaning of this Bill. As we have a later amendment which incorporates this problem, I will be prepared to leave the matter in abeyance until we reach that amendment.