Amendment No. 105 has already been discussed with amendment No. 99.
Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).
SECTION 27.
I move amendment No. 105:
In page 24, subsection (7), to delete all words after "Minister" in line 4 down to and including "selected" in line 7 and substitute "nominate one person for appointment by the Minister".
This is an important amendment. If it is not accepted the implication is that the Minister de facto can select his own people and I would appeal to the Minister to accept this amendment.
I am sorry I am not in a position to accept this amendment. I think it would be far too restrictive if we were to simply restrict the number of people an organisation could put forward for nomination to one. As I said on the last occasion, it is important that the advisory committee, which is a relatively small one consisting of 11 people and the director general, should be a balanced one representing all the various interests that can have an imput into this Environmental Protection Agency. Therefore, I think there might be a tendency to nominate the same kind of people — planners, engineers or perhaps architects, professional people of that kind.
In order to give the Minister the maximum flexibility to appoint a wide cross-section of people and to give organisations the possibility of putting forward for consideration the widest possible range of people, I am not in a position to limit that to one and I do not think that would be desirable. I think there would be an inference, if each nominating body were to nominate simply one, that all the nominees of nominating bodies would be on the advisory committee. Of course, there may be more bodies than there will be places available on the advisory committee. It is a question of trying to decide as between the various interests so that we have a balanced and appropriate advisory committee, which is going to form a very important part of the operation of the agency. As I said the last day, is going to be fully integrated into the operation of the agency. I am afraid, therefore, that I am not in a position to accept this amendment.
May I speak on amendment No. 105?
No, we have already concluded the debate on it. Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendment No. 106 not moved.
I move amendment No. 107:
In page 24, subsection (11), line 41, after "reappointment" to insert "subject to the agreement of the organisation which selected him in the first place".
There is no need for this amendment. For somebody to be reappointed they would have to be nominated by the organisation, so I do not think the Senator's amendment is necessary. If they are not nominated by the organisation they could only be considered for the ministerial selection, that is, for the four positions the Minister has to select. That is clear in subsection (11), subject to subsection (8). If the Senator reflects on that he will see there is no need to put that amendment if it is to serve the purpose that I believe it is to serve, which is that organisations cannot be ignored when the committee is being reappointed.
Amendment No. 108 can be discussed with amendment No. 107.
Senator Hederman asked me to move any of her amendments that came up.
It can only be discussed; it cannot be moved at this point.
I see. All I would point out is that it is virtually identical to Senator Ross' amendment. However, the difference is that it puts "him or her" which I think would appeal to the Minister in the light of our discussion the last day about sexist language.
Amendment, by leave, withdrawn.
Amendment No. 108 has already been discussed with amendment No. 107.
Amendment No. 108 not moved.
I move amendment No. 109:
In page 25, subsection (15), lines 6 and 7, to delete paragraph (b).
I am sorry I am not in a position to accept this amendment. I believe it would be far too restrictive. It may well be necessary for the Minister to set by way of regulations notices that organisations will have to give before they call meetings to select a nominee and so on. It may also be required from time to time to change the organisations that can nominate persons for consideration to the advisory committee. Therefore, I think that to delete paragraph (b) in section 25 (15) would place a Minister in a very difficult and restricted position. This is not desirable. The wording here is exactly the same wording that is used in relation to An Bord Pleanála and I think it is appropriate in this legislation that a similar facility would be given to the Minister.
I am not going to keep this House indefinitely on the question of whether the Minister may make regulations, but I have a funny feeling that inside Government Departments, obviously with the support of Ministers, there are people who keep on imagining that they must put into legislation a catch-all phrase which covers every possible eventuality whether imagined or real, hypothetical or factual, and that you have to have this phrase "any other matter which the Minister considers expedient."
Quite truthfully, this whole matter of conveying powers on a Minister — however specific an area — to do whatever he or she wishes to do at some stage in the future because it is "expedient for the purpose of this section" is, in my view, a relic of Stalinism, which has been buried all over eastern Europe; and we should forget about it, too. Agencies like this should be left to conduct their own business. Bodies like this advisory group should be left to conduct their own business. It is this fascinating belief that the centre holds in its possession a fund of wisdom that nobody else has which is, first of all, nonsense and, secondly, clearly unnecessary. No responsible body is going to refuse to do anything or decline to do anything which that body perceives to be useful or necessary. To give to the Minister the power, which I am quite sure will not be abused most of the time, creates a philosophical set of priorities about the wisdom of the centre, the wisdom of high office, which, in my view, has been proven to be untrue by the bureaucratic mess this country is in because of centralisation. This is just a symptom of it. I fully agree that the amendment is perfectly reasonable.
Obviously, when one is doing various things of this kind by way of regulations, first of all, they are the more minor aspects of the Bill and, as I said previously it would be impossible for us to put all housekeeping matters into the primary legislation. That is why regulations are used so frequently to attend to basic housekeeping functions. There will be whole host of organisations involved in submitting names for consideration for appointment to the advisory committee and it would be wrong of us to have legislation that is so restrictive that problem could arise in sending those nominations forward. This provision is there to give the maximum flexibility in the event of unforeseen problems arising so that one does not have to come back with amending legislation to the primary legislation. This is a relatively minor aspect of this legislation and it would not be right to totally tie our hands and not give flexibility to introduce whatever procedures might be necessary to make this workable.
Many organisations will be sending names forward. It will be a question of trying to balance one organisation against the other and select a group of people who make up a good balance for this advisory committee. It may well be expedient for the purposes of this section for the Minister to make regulations in relation to the methods of the organisations selected to nominate a body, who they consult or the time they give to their members. These things may well be relevant. It is not necessary that they would be used but in the event of problems arising it is appropriate that a provision of this kind should exist.
I take the opposite view to Senator Brendan Ryan. Subsection (15) (b) is necessary because we looked years ago at An Bord Pleanála and thought that mistakes could not be made by that body. We found that was not the case.
It appears to be a very wide power but I do not really think it is. This is the kind of phrase that occurs in a great deal of legislation. It does not particularly worry me. I would like to say how glad I was to hear criticism of An Bord Pleanála in Senator Honan's contribution. We all agree with that. It is richly deserved.
Amendment, by leave, withdrawn.
Amendment Nos. 110, 111, 112 and 113 are related and may be discussed together.
I move amendment No. 110:
In page 25, subsection (16) (b), line 12, after "ill-health" to insert "or stated misbehaviour".
With regard to this amendment Senator Hederman suggests the inclusion of "or stated misbehaviour" after "ill-health" but the copy of the Bill I have has a phrase in that paragraph which occurs a couple of lines further on which says: "...has become incapable through ill-health of effectively performing his duties or has committed stated misbehaviour". I assume that the phrase "has committed stated misbehaviour" was added at some intermediary stage and failed to attract the attention of Senator Hederman because it seems to me it has precisely the same effect. It is a slightly ugly phrase, "has committed stated mis-behaviour" but I am not able to suggest a better one so I assume the Minister will say she has already responded to this suggestion.
Yes, we have already responded at an earlier stage and we are going to look at this as I said on the last occasion.
I have an amendment which is separate. It is about the power of the Minister to remove from office a member of the advisory committee. We are not talking about the environmental protection agency now, we are talking about the committee which is set up according to section 28, not to determine policy but to make recommendations to the agency or to the Minister relating to the functions of the agency. It is a body which only has powers to make recommendations. The agency or the Minister, as may be appropriate, shall have regard to any recommendations. If the Minister can give me a definition of "have regard" and what it means I believe they cannot take a decision without considering what is being recommended but do not have to do what is recommended.
This advisory's committee's function is to make recommendations. Those recommendations may well be controversial, they may not be controversial, they may well be based on the priorities of the advisory committee which, if it is as good as an advisory committee should be, there should be questions of challenging the agency to think more and to reflect on issues.
If you have an advisory committee like this the appointments to which are effectively to a large extent controlled by the Minister — we can discuss this again when we come to the section — and then say that if it appears to the Minister to be necessary or desirable for the effective performance by the agency of its functions that any member of that agency or of the advisory committee can be removed from office that seems to me to be tying up the advisory committee to an enormous extent into the Minister's office. This ought to be a vigorous independent advisory body free and able to speak as freely as it wishes, made up, I hope, of independently-minded people who feel free to comment publicly and privately about what they see as the limitations. Otherwise it is nothing more than a token to keep a lot of groups happy by giving them some sort of a nominal representation. If it is going to be allowed to operate independently, then the Minister should devise specific criteria for dismissal or should leave out that last phrase. To say that the Minister should be able to decide because it appears to him or her necessary or desirable for the effective performance by the committee of its functions is to give the Minister excessive power.
It comes back to something that I believe will be a constant theme of both Houses of the Oireachtas for the next few weeks, the extraordinary burden of centralism in this country and its perception that somewhere in the centre of power, not necessarily the centre of the country, there is some extra fund of wisdom over and above what is available to the rest of the community. It does not exist, it is a myth, and to suggest that you have to include these catch-all phrases in case there is a problem is a recipe for sloppy thinking. It is sloppy thinking that is inserted into our legislation over and over again. There is no point in telling me that it is in many pieces of legislation — this country is awash with sloppily drafted legislation. It is no excuse for sloppy legislation. That section is not necessary and should be taken out. That is what my amendment suggests.
I already said when we were discussing the removal of the director general or director that we would look at expanding on the state of mis-behaviour, giving reasons and so. In relation to this, I have given an undertaking at least to look at it for Report Stage. We have to remember the people here are volunteers. They obviously have rights of their own. There may be matters that could be of a confidential or private nature that it may not always be desirable to actually state publicly. Subject to that, I am prepared to look at it — that should be acceptable to the Senators — with a view to coming back to it on Report Stage.
I am very glad to hear what the Minister said because I support strongly what my colleague Senator Ryan has said, particularly the phrase "appears to the Minister necessary or desirable". I suggest there could be almost an illusion of necessity or desirability and it could subsequently transpire that it was neither necessary nor desirable that this person was removed. All that has to happen is the subjective judgment of the Minister that it might appear to her or to him that it was necessary. That is an extraordinarily broad phrase to employ in a section of a Bill like this and I am very glad the Minister has indicated she will look at it again.
In accepting the Minister's assurance that she will look at it again, I want to reiterate her own point which is that we are talking her about volunteers and that in respect of people who volunteer to serve on a committee, where the Minister has the power to throw them out if, in his opinion, they are not doing their job properly is a very unfair way to treat such people. I accept fully that the Minister will look at it again. Will she look a little bit beyond the Attorney General's office where precedent seems to be everything and where commonsense is a scarce commodity in the way legislation is drafted.
Amendment, by leave, withdrawn.
Amendments Nos. 111 to 113, inclusive, not moved.
Question proposed: "That section 27 stand part of the Bill."
I would ask the Minister to re-examine the wording of section 27 (5) which states:
The Minister may prescribe for the purposes of subsection (6)—
(a) organisations which in his opinion are representative of persons whose professions or occupations relate to environmental protection,
(b) organisations, which in his opinion are concerned with environmental protection,
The term "his opinion" is used five times in this subsection. We had this discussion last week and I do intend to dwell on the matter. It is in all our interests to get this Bill through. There are a lot of sections in it. I find the wording unacceptable because, as we all know, we have had female Ministers in the past and I am sure we will have them in the future. The Minister is bringing in this Bill and of all the office holders she is more familiar with this Bill than anyone else. I ask her to consider rephrasing that and to put in "Minister's opinion" rather than "his opinion" for Report Stage.
I would go further than that. I must express some mild surprise at the inconsistency of our zealous advocates to feminism that they do not suggest that at least half of the advisory committee shall be women. I suspect that zeal is selective. It has less to do with concern for the alleged oppression of more than half the human race, than with the fact that more than half the electors in the NUI constituency are women. Senator O'Toole's feminest zeal might be better applied to his own organisation where women notoriously are excluded from top posts.
I will not say anything about what Sentor Murphy said. I want to talk about the section, not about Senator O'Toole, or feminism or anything else. I have this problem perpetually with central Government because it appears to be increasingly a burden on people. Contrary to what the Minister's party say, it is not the taxation part of it that is the burden, it is the bureaucratic delays, the sense of wisdom that is possessed of centralised bodies that the local communities do not have. The best people to pick representatives to go on an advisory committee like this are not the Minister or her advisers but the organisation themselves. You can produce all the "what if" you like; "what if they produce a Marxist-Leninist" or, with my colleagues in the Labour Party in front of me, "a militant"——
Is the Senator going to join us?
I would probably be expelled if I joined up.
(Interruptions.)
Senator Ryan, without interruption.
I do not think anybody is under any illusion where my political affiliations or political loyalties lie, on the left.
(Interruptions.)
If I was not in good humour I would be appealing to you for protection.
In the circumstances, it would be very difficult to offer the Senator any protection.
That is an unnecesasry assault from the right. There is a very serious question here, that is the presumption that the Minister somehow has some sort of special expertise and can pick from organisations or representative persons whose professions or occupations relate to environmental protection. There is the suggestion that the Minister can somehow make a decison about who is most appropriate, that those organisation cannot make or, similarly, about organisations which are concerned with environmental protection, the promotion of economic growth and development.
Who said and where is the evidence that Government Ministers or their advisors have some sort of extra wisdom which say that they can make a better choice than the organisations themselves? That is what intrigues me about legislation like this and other legislation. What is the catch? Why is it that you cannot say: "Go ahead and pick somebody from your organisation"? It is bad enough that the Minister can designate which organisations are concerned. My view is that it is the same way that the Clerk of the Seanad decides whether organisations or people qualify to various panels. It ought not be the Minister.
The Minister has no fund of limitless wisdom. Why the Minister should claim to herself or himself this wisdom, to pick from three nominees of these organisations, somebody he or she thinks is the best is a mystery to me if I did not think it was all to do with an altogether extraordinary obsessional determination that all power must be retained within the centre of power in this country. It is utterly meaningless. This is another job that will take up more time in a contracting public service and it will not be the Minister. If the Minister had to do everything which legislation says the Minister has to do, the Minister will not escape from her office for one hour 24 hours of the day. A lot of this could be done effectively by middle ranking members of her Department who are accountable to nobody and who will work according to regulations that will stifle creativity. It is not the way to do things. These matters should be left to organisations. What is wrong with this section is the extraordinary belief that the Minister has some sort of wisdom that nobody else has.
The difficulty in relation to this is that at least 50 organisations made submissions in relation to the legislation. It would be impossible, therefore, to expect each of them to be able to nominate one person to an advisory committee. It would be such an enormous advisory committee that it would be virtually valueless. Therefore it is necessary to limit the organisations and put them into different categories and to choose at least one from each category.
Seven come from organisations and four from other ministerial appointments. There may also be people from organisations. Unless we are going to have a limitless committee I cannot see any other way of doing it. It is desirable that the number overall would be small but representative of environmental interest, community interest, people involved in economic development and so on. I cannot think of a better way, given the need to be restrictive in the sense that we want a small effective rather than a large one that rambles on because 50 or 60 are involved on it. If we were to follow Senator Ryan's suggestion of allowing the organisations to designate themselves and nominate themselves I cannot think where we would draw a limit. Somebody has to prescribe the organisations and somebody has to decide who will form the advisory committee. The most appropriate person is the Minister of the day.
Senator Ryan has grounds for concern. I am absolutely with him. I worry deeply at times about giving all power to any Minister. With the greatest respect to the Minister of State, I have had this worry in regard to past Governments and I will have it, if I survive, in respect to future Governments. We are also talking here, as Senator Ryan did, about people who go voluntarily into a situation.
I accept the Minister's explanation about the advisory committee and that it will not be more than 12 places. I can see the worry about ministerial appointments to the 12 places. I accept from the Minister that there will probably be nearly 40 or 50 organisations looking for the 12 places. All elected people worry about a Minister in any Bill holding all power to himself or herself. Here we have the Minister appointing (a), (b), (c), (d) and (e). I would like if the Minister could come in again on this. I have worries with this, too and we had better voice our worries here because it may well be changed in another place.
I fully accept in this case the goodwill of the Minister and we have ample evidence of it. If I argue with her it is not because I want an argument because I think she misunderstood me. There are five categories of organisations here. My first problem is that I do not think it should be the Minister who designates organisations which are covered by each of those categories. The Minister for the Environment does not, for instance, designate what is a political party. I understand the Clerk of the Dáil does that. He interprets the legislation and concludes who is covered by it and who is not. In my view the first problem is who decides which organisations are covered by each of the headings.
My second problem is, who picks the representatives of those organisations? I am not entirely sure that the Minister's intention was that there would be at least one person from each of those five categories. Maybe I am wrong but that was my understanding. I cannot understand if those five categories can be relied upon to pick four people to give the Minister four names of which the Minister will choose one or perhaps two why they cannot be relied upon to pick one of their own choice. That is the critical decision.
I do not want a committee, I am not even arguing for an extension of the committee to have more members, I am saying two simple things; one, why not have the categorisation of groups as being eligible to be classified under one of those five subparagraphs be left independent of the Minister by some body with the expertise and the knowledge and, incidentally the time, to do it? Secondly, if they can be trusted to pick four people from whom the Minister picks one, why not let them pick one? It seems to me the Minister is reserving to herself the right to make sure that these organisations do not make mistakes about the people they pick because the Minister might know better about who is appropriate. The presumption is that if they were left to themselves to pick one person they might make a wrong choice but if they have to pick four then the Minister, presumably because she has some wisdom the rest of us do not have, can overcome a foolish decision they would otherwise have made. That is not true. The Minister has no extra sources of wisdom available to her that are not available to the rest of society.
With regard to subsection (5) the generality of the language prompted me to ask the question. I take the view that the whole area of environmental awareness is a function of education. It is quite clear here that the Minister may prescribe for the purpose organisations which, in his or her opinion, are representative of persons whose professions or occupations relate to environmental protection. I would certainly like to hear the Minister confirm that that would include the teaching profession.
Paragraph (e) states:
organisations which in his opinion are representative of persons concerned with environmental education or research.
Paragraph (e) states:
organisations which in his opinion are representative of persons concerned with environmental education or research.
This is a classic example where "his" could be dropped. It seems to me that the group of professionals most concerned with environmental education are teachers. I said on Second Stage that the whole question of environmental awareness as it is now known began with the introduction of the revised curriculum in primary schools in 1972 with the introduction of environmental studies. We went through a generation before that when we did not know the names of birds or trees or were able to identify one from the other.
That was a long time ago.
It was a long time ago but nevertheless that was the situation. I would like to make the point of the need to have the whole area of environmental education addressed in a formal way. The reason I am raising it is because people are concerned with the environment. It is a cliché at this stage, but there are people who every day and every week have to devise a programme for the pupils under their control with the single objective of increasing awareness and concern for the environment. I am not saying teachers are the only group doing this but it is part of their work on a day-to-day basis of educating people. I would like to hear the Minister's views that they would be one of the groups who might be represented under that heading.
In relation to the teaching profession I can give the Senator the assurance that the teaching profession would be included under subsection (5); I am not certain about 5 (a) because that would probably have more to do with professions whose actual job involved environmental protection but certainly under subsection (5) (e) they would be involved as teachers are in education and so on.
I had better explain what I meant because I think the Minister's first reply suggested a misunderstanding of what I was looking for in the section. Can she explain to me in simple English why she should reserve to herself the right to make the final choice of who represents a group of organisations under any of those sections rather than leaving them to make the choice themselves? If they can be trusted to pick four people and get themselves organised to the extent of doing that I do not understand why they cannot be trusted to pick one who is their representative.
As I explained earlier, every organisation that will have a nominating power to nominate members to the advisory committee will not have their persons selected. There is an inference if you are asking organisations to pick one that you will select that one for the advisory committee. It may well be the case that there be well in excess of 20, 30 or 40 organisations designated under subsection (5) for the purposes of making appointments to the advisory committee. Therefore, if you limit organisations nominee powers to one you are in some way indicating to them that that one person will be selected, which is not the case.
Secondly, organisations do not necessarily always send forward appropriate people. Many of us are involved in activities where we know certain types of people might always dominate for the purpose of being appointed to these kind of committees. Many organisations would welcome the suggestion that they would not be limited to one so that the choice would be made elsewhere because sometimes they may feel compelled to nominate one person because of the position that person holds in the organisation when, in fact, they might want to have a wider choice for consideration to an advisory committee.
Thirdly, because the advisory committee is small and because we cannot facilitate every possible organisation it is important that the committee would be balanced and representative as between people with different disciplines with a different perspective and a different interest in the environment. It is important that the balance would be fair between men and women and between the regions in the country so that the committee would be regionally balanced as well. For all of those reasons it is wiser to have some flexibility given to the Minister when deciding who to appoint to the advisory committee.
To refer to Senator Honan's point, the Minister will not dominate the advisory committee. In fact, there are many advisory committees appointed by Ministers without any consultation with or reference to any organisations. In this situation the Minister will only be able to appoint four out of 12 nominees. That is a small proportion of the overall membership of the advisory committee. The Minister's hands will be tied in relation to the other eight appointments, one being the director general and seven being from the organisations listed under subsection (5). The Minister's powers in this respect are unusually limited and that is desirable.
Under section 27 (5) (a) will four nominations be made by each organisation representating professions and occupations, or four nominations by the group of those organisations?
Four people from the group of organisations.
If they can nominate four why can they not nominate one as their representative? The Minister states that they might pick an inappropriate person. The Irish people pick inappropriate people as their Government but I have to live with that because I believe in democracy. I cannot appeal to a higher authority to pick somebody better for me because that would be undemocratic. I do not see why we should not operate this at all levels of society. If the group choose inappropriately that is their democratic privilege. Higher authorities are not necessarily better, wiser or have more insight, but are different. The Minister's view of who would be appropriate to represent environmental organisations may seem useful to her; it may appear entirely inappropriate to many of the organisations. That is why I disagree. The principle is that organisations should pick their own representative. If we are going to enact revolutionary legislation in terms of administrative procedures, then we should stop having everything land back in the hands of the Minister, however elaborate the process may be by which things get there. Ultimately the Minister will pick the people to represent all these organisations and they will not therefore be legitimate representatives.
Under each of the groups listed under subsection (5) there may be 20 or 30 organisations and we are asking them to send forward at least four names; they could send forward 20 names. It would be extremely restrictive to insist on one name. I cannot think of a better way of doing it than the way suggested.
To follow Senator Ryan's suggestion as many as ten organisations under this subsection would be asked to send forward one name which would be difficult. You would have all kinds of politics between organisations and so on. Would you pick the engineers' representative or the architects' representative or some other professional body's representative? The Senator knows the reality behind that. We are asking them to send forward a minimum of four and they may send forward ten, 12 or more names if they wish. The same principal applies down the list so the Minister will be faced with a minimum of 20 names from which to pick seven and may well have a larger list of 50 or 60. If we wish the advisory committee to be a small, balanced, representative committee composed of various national groups, interests and regions it is desirable to do it this way.
I say without the slightest malice that the Minister's arguments are unconvincing. I will leave it at that. They are a product of a centralist ideology which has ruined this country. There is nothing wrong with politics and there are other ways of doing it. We all practise politics. It is not sacred in here and wrong in other organisations. It is the nature of all organisations. If they have to pick a number there will be political maneouvring anyway. I accept the goodwill of the present Minister on it that it will not be abused but the correct philosophical basis for it bothers me.
Question put and agreed to.
SECTION 28.
Amendments Nos. 114 and 115 are related and may be discussed together.
Government amendment No. 114:
In page 25, subsection (2) (a), between lines 38 and 39,, to insert the following new subparagraph:
"(vii) the organisation and promotion of training conferences and related matters for the purposes of environmental protection,".
My amendment is in response to Senator O'Toole's amendment and I hope it gives effect to what he has in mind. It acknowledges the importance of the agency's functions under sections 54 and 55 in relation to the provision of advice and support to public authorities generally for the purposes of environmental protection, including measures relating to training and awareness exercises for persons involved in environmental protection. The provision of subsection (2) are wide enough to allow the advisory committee to make recommendations in relation to any of the agency's functions. I accept that the raising of the standards of skills in environmental awareness is sufficiently important to merit a separate reference.
I am delighted that the Minister has responded in such a positive way. I phrased the amendment to make it clear that it was an issue that might be responded to rather than an amendment to be accepted in the language given. I am disappointed the amendment does not contain the words "environmental education"; although it is slanted as I requested, to go beyond rules and regulations and into the preventative area to determine how we might increase peoples' understanding of environmental protection. The Minister's amendment says that the advisory committee may make recommendations to the agency in relation to "the organisation and promotion of training conferences and related matters for the purposes of environmental protection."
I am pushing the question of related matters which has to be formal environmental education. The amendment has not stated that environmental education will be a formal requirement. It is a formal part of what will be demanded by the agency. I put this amendment down in the light of what will happened to the Health Advisory Agency which died because somebody decided they would no longer keep it there. The only place I could find health education was in the context of the curriculum of primary education which is a fair place to have it. Similarly, environmental education quite correctly, is an aspect of the curriculum of primary education.
I was one of the people who pushed for it 20 years ago when the environment was a less popular issue than it is today. If there is a need to raise environmental awareness by inculcating love for and knowledge of the environment through education to create an innate sense of environmental protection that has to be set out in the context of aims with a clear objective. This environmental agency would not be determining the curricula for schools at any level but it would be in a position to make certain recommendations for someone else to implement. The formal words of "environmental education" would have been important and teachers would welcome that. When teaching civics and environmental studies teachers may wonder if these subjects are tied into the greater scheme of things or to great national issues. This would be one way of formalising the importance of environmental education, taking it in from the periphery as an answer to those who tell us that education should be about the core issues of reading, writing and arithmetic. This, too, is a core issue.
Amendment agreed to.
Acting Chairman
Is amendment No. 115 being moved?
I am not pressing it. I am not going to make another speech. I ask the Minister to give some consideration to what I said and if it could be developed further on Report Stage perhaps the words "environmental education" would be included under "related matters".
Amendment No. 115 not moved.
I move amendment No. 116:
In page 26, subsection (5) (a), line 20, after "Part IV" to insert "until the processing or the review is completed".
Will the Minister respond to the amendment?
This record is going to be very long. The purpose of subsection (5) (a) is not to place a total ban on the advisory committee receiving specific information in relation to licence applications and reviews but to empower the agency to withhold information from the committee where it considers it appropriate to do so. Should it be decided to withhold information during the application or review, it would be unwise to then oblige the agency to release the information after the application or review had been dealt with. If there are good reasons not to give the information before a decision is made, the reasons may be just as valid afterwards.
It must be remembered also that members of the advisory committee may also be members of organisations making representations to the agency about particular cases or objecting to licences being given. It would not be appropriate generally that they should have full access to all aspects of the consideration of the case by the agency, including confidential documents, particulars of court proceedings, personal data, etc.
The classic centralised Irish view about confidential information is that for fear we might release something that might be secret we will not release anything. It is simply the words the Minister used that people might find out things that might be of use to them, therefore, we must not let them find out anything. There is an intermediate phase. Senator O'Toole, as a senior trade union bureaucrat, subscribes to the Minister's view on this since they, too, operate a good secrecy law.
Outrageous.
It is perfectly reasonable that certain matters should be confidential but there should be a reason for confidentiality. We have a freedom of information directive which may be implemented by this Act if the Minister sees fit but it does not have to be. That directive specifies categories for confidentiality but the Minister says here that nothing about the processing of a specific application should ever become available to members of the agency for fear it may contain something confidential.
I did not say that. I said it should not automatically become available to them as of right. There is nothing to prevent it becoming available but there may be circumstances where it is not appropriate, particularly if the organisation is involved in lobbying the agency, in making an appeal to the agency or is against a particular application. It would not be appropriate in those cases that because they are involved in the advisory committee that they would have access to information that would not be generally available to other members of the public.
This is more appropriate to section 38 but the words used by the Minister provoked me because it was the classic defence of non-disclosure, that we might let out something that would be troublesome so we let out nothing. We will come back to this at length on section 38.
I am worried because the advisory committee is a responsible body and not to disclose information would require very serious and cogent reasons particularly after the completion of the processing of the review. When it is completed, surely it would be of use to them to have information in almost all circumstances? It is not part of the function of the advisory body to advise in the light of its experience and the information in its possession? To do so, it must have the widest possible access to information.
Amendment by leave, withdrawn.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30.
Acting Chairman
Amendment No. 118 is an alternative to amendment No. 117 and both may be discussed together.
I move amendment No. 117:
In page 26, subsection (1), line 35, to delete "from time to time" and substitute "upon the initiation of the Agency".
This is a very important amendment and I press it as strongly as I can. The difference between my amendment and that in the name of Senator O'Toole is not one of principle. We are agreed about the issue here which is that in the legislation as framed the Minister is taking to herself the very unusual powers of being able to shift people round willy-nilly at any time in the future. If the Minister looks at comparable legislation she will find that this power does not exist but that some phase is used — like the one that I or Senator O'Toole have used — to exercise this power once only and that on the initiation of the agency to be used only on that occasion.
I would like to put on the record one paragraph from a letter I received from the Services Industrial Professional Technical Union (SIPTU). They say:—
In addition, the Bill differs significantly from such similar legislation in that the power of the Minister to transfer stock can be exercised at any time in the future. Other legislation allowed the Minister to exercise his power only on the vesting day of the new organisation. Under this legislation somebody could, in a number of years' time, join the local authority as a chemist and find him or herself transferred some years later to the agency. This power is unprecedented.
I believe that unprecedented measures require special justification by the Minister. This amendment, like some others that we may very well get to today, express the view of an important trade union body whose members will be members of the Environmental Protection Agency. It is very important — I know the Minister will agree with me on this — to have good industrial relations right from the beginning.
I would urge the Minister to consider this amendment carefully and if she is unable to give a commitment on this, at least to indicate her precise reasons so that we can come back to it on Report Stage. I will be urging acceptance of the amendment.
The purpose of my amendment is to ensure that the question of transfer of staff to the agency would be sorted out before a date identified by the Minister; in other words to constrain the powers of the Minister to move professional staff from one area to another which would be unacceptable and unprecedented. The fact that it is unprecedented does not necessarily mean that it is bad. The level of discretion allowed to the Minister at this point would allow her to move a professional working in Government or the public service at any time. Such power would be excessive. Under the amendment a certain time frame would operate so that people would be able to plan. My amendment is reasonable; that the Minister would determine a day before which any transfer of staff would have to take place. Redeployment of staff is always a difficult matter and I would like guidelines on it.
I am concerned about this proposal which marks a significant erosion of the rights of people who work in agencies and who can expect to be transferred into this new agency. I am concerned that they should not suffer deterioration in their terms of employment arising from the provisions of this Bill.
There is a degree of misunderstanding here. Senator O'Toole took one of my better lines when he said that lack of precedent does not mean that it is a bad thing. We are establishing a new agency and many things will be done differently.
I am not one for consistency.
No transfers will take place without the agreement of the trade union representatives. My Department are having discussions with SIPTU and the other trade union representatives in relation to this matter. Section 30 will apply only to employees whose principal functions will be transferred to the agency. If the agency were to be assigned new or particular functions and people now carrying out those functions were in the employment of public authorities it would be sensible in a country with limited resources to transfer those people subject to the agreement of the official trade union representative body and so on.
In subsection (2) a public authority may, with the consent of the Minister and so on, designate staff to be transferred; again one would need the agreement of the staff involved. There is no question of forcing people to do something undesirable either from the national point of view or from the point of view of the functions they carry out. If we were to limit the provisions of the Bill to Senator Norris's amendment then only at the time of the establishment of the agency could we transfer people.
It is intended that the agency's functions would be phased in. The agency will not be able to carry out the wide range of functions being assigned to it under this legislation from day one and it will take perhaps 12 months or more before all the functions can be transferred to the agency. Therefore it would not be possible to transfer all the people on day one.
Senator O'Toole's amendment suggests limiting a time into the future but that would mean predicting the future. Things are constantly changing in relation to the environment and some of the functions now carried out by other bodies may be transferred to the agency and it would be appropriate to transfer the staff with them. The next section contains provisions so that nobody would be worse off and other reasonable matters. There is no question of a heavy hand approach here; on the contrary, it is expected that these matters would all be done with agreement.
I welcome some elements of what the Minister has said. It is very positive because as the legislation stands there would be powers to transfer people without any consultation. That is not in the legislation yet, but perhaps it is indicative that the Minister says that she will consider the substance of a further amendment of mine regarding section 32, amendment No. 129, which would require the Minister to give notification of transfers to the trade unions and to consult with them. It sounds as if the Minister is moving in this direction. I welcome that.
With regard to the amendment No. 117, I use the phrase "upon the initiation of the agency" deliberately because it is vague; it does not say day one. We would have a period of initiation which is unprecedented and would require justification, but is not bound to be wrong; when an unprecedented move is made one is obliged to justify it as the Minister has sought to do. I agree with Senator Upton that it marks an erosion of the rights of the employees.
I draw the Minister's attention to the popular newspaper phrase "disturbance money." The Minister will remember that people received disturbance money for moving as short a distance as 100 yards. People may change the location of their employment under the provisions of this Bill and that could mean difficulties in re-arranging travel. It may be impractical for people to remain living in the same area; a person transferred from a local authority in Wicklow to Dublin would probably have to make new domestic arrangements. This could represent a serious intervention in people's lifestyles. I understand the Minister's argument for rationalisation for avoiding reduplication of professional expertise and so on by concentrating professional expertise within the Environmental Protection Agency but it is a far-reaching power. I am satisfied that the Minister may prefer Senator O'Toole's amendment to mine or may come up with something different; my concern is for the principle.
If the Minister was prepared to include in the Bill that such changes will only take place following agreement with the trade union concerned, there would be no cause for concern.
The Minister identified a weakness in my amendment. None of us can presume that things will not change and that people would not want to be moved. I have no principled difficulty with the reasonable transfer of responsibility from an area of the public service to this agency requiring the movement of staff. The way in which that would be done, however, could create problems. I have had discussions with the Irish Congress of Trade Unions concerning the workers at Eolas and I am sure that they have also raised this issue with the Minister.
Eolas are now operating on a profit-making basis and could develop and take on more staff were they allowed to do so. The introduction of this agency will result in members of the staff of Eolas being transferred to the agency leaving a gap in a profitable operation which will benefit the private sector. Apart from the principle there is a question of efficiency of employment. Eolas are an example of competitiveness within the public services and the organisation should be developed rather than integrated into the agency. Discussions would be worthwhile on this subject.
Consistency and precedent are really poor arguments; Dr. Johnston, 300 years ago, had nasty words to say about both of them but I remind the Minister that she introduced it in this debate during talk about the appointment of the director general and the deputy director general when she reminded us how various people have been appointed under other legislation. I said at the time that because it was done somewhere else does not mean it has to be done in the same way now. I am glad the Minister has taken my argument on board. I wish she had taken the amendment on board with the same alacrity as she took the argument. I would like to hear the Minister re-emphasise that she would be prepared to put into the Bill a sentence to the effect that a change of staff from one part of the public service to the other — the redeployment of professional people — would only take place following agreement with the trade union representative of that profession.
In relation to Senator O'Toole's last comment it is game, set and match. In relation to Senator O'Toole's request, I understand discussions are about to take place — in fact, some discussions have already taken place — between Congress, a number of the unions involved and my officials. Pending the outcome of those discussions and subject to what has already been said here we will come back on Report Stage with some suggestions.
We can dispose of many of the amendments on that basis.
I support the sentiments expressed by the previous Senators in regard to amendments Nos. 117 and 118. Everything that has been said on those amendments is what I intended to say on amendment 119 which states "after consultation with the employee/employees involved" where staff is being transferred. It is only right that consultation should take place with those staff. Some staff may be appointed to a local authority or another public body and be working in that area. I can understand precisely what is implied here, there could be duplication if this section was not in the Bill. It is right that this should be in the Bill but where staff are being transferred it should be done by negotiation. That is extremely important and I support the sentiments expressed.
I am pleased that the Minister seems to be taking a conciliatory line on this and has indicated that negotiations are taking place with the trade unions. However, I am not clear about what the difficulties have been with the precedents which have already been established in relation to this type of practice. I am not clear why they are not working well and why they have not been included in this legislation. I repeat my concern. It is spelled out fairly clearly in a letter from SIPTU which talks in terms of the possibility existing of people being compulsorily transferred from secure pensionable and permanent employment as officers, for example, of a local authority to a new agency as employees without security of tenure. That is a radical shift, a fundamental change in the terms and in the manner in which people who worked in those agencies have been treated. I am concerned that that possibility would remain in existence when this legislation is passed. For that reason I am very worried about the whole matter.
There is a misunderstanding because it is quite clearly said in the next section that no employee will have any less favourable conditions attached to either their tenure, their pension rights or their remuneration and so on. Perhaps we could debate that on the next section.
That really worries me because the next section does all those things with regard to security of tenure and so on, but the question of movement is not dealt with in it. I am specifically talking about movement. I am prepared to withdraw many of the amendments I have down on the basis that the Minister says these things will take place following agreement with the trade union representative of the employees. I do not ask for any more than that.
Amendment No. 129 deals with the situation very clearly and I hope the Minister will come back on that. I would like to correct one thing the Minister said. She said that the legislation as it exists does protect people's rights, including the right of tenure, when it actually does not. There will be a series of amendments put down. I am glad the Minister put that on the record at this point because it indicates she understands what I am talking about. I look forward with the greatest optimism to her accepting amendment No. 125 which makes the point she herself made.
I will read into the record this one brief sentence from a letter of SIPTU dated 13 March which states: "The Bill, unlike previous Acts which provided for the transfer of staff from the Civil Service to new State Agencies specifically excludes guaranteed tenure of office from the conditions of employment retained by transferred staff." That letter was signed by Paul O'Sullivan, the branch secretary of the relevant branch of SIPTU. That encapsulates my primary concern about what is contained in this section.
Because of the extraordinary importance of the letter Senator Upton has just quoted from, will the Minister clearly state if she will take this on board, perhaps not those two amendments as they are, but specifically what Senator Upton has referred to in the letter from SIPTU? As elected representatives we all know that there was trouble on other occasions when people were moved. I am not asking the Minister to specifically accept those amendments in the names of Senators O'Toole and Norris but it concerns me that Senator Upton is quoting from a SIPTU letter. That is very serious for all of us in this House and I would like to hear the Minister's comments on that.
I think we are straying a little because the substance of what is being discussed is dealt with in amendments Nos. 125, 126, 127 and 128. I read one paragraph from the same letter into the record earlier but I specifically did not read that paragraph although I am very grateful that Senator Upton put it on the record and drew such a positive response from Senator Honan. The Minister will have the opportunity to reply when dealing those amendments that relate to the question of tenure because that is not actually what the substance of these amendments is. We we are dealing with here is simply the time at which the movement of troops is made. Perhaps we should dispose of those first and then move on.
I want to reiterate a point I made at the outset. Unlike the establishment of many other bodies it is anticipated that as time goes on more and more functions will perhaps be transferred to this agency. Therefore, it is not possible to limit at the time when the agency is being established or initiated the transfer to just that point in time or to some point in time that we can foresee, like six months or 12 months. It may well be that in two or three years from now it will be generally agreed that it is a good idea to transfer functions X, Y and Z performed by some other body to this agency. Therefore, it would be appropriate, in the interest of economies, the limited resources the country has, and so on, also to transfer the people who work in those areas. That is why it is not possible, unlike the establishment of other bodies, to have a finite limit to when exactly transfers can take place.
Many of the problems Senators are concerned about in relation to people being worse off and so on, are dealt with under section 31 (1). It is certainly the case that nobody will be worse off as a result of being transferred. Their tenure of office, pensions rights or anything of that kind will not be adversely affected and that is appropriate. My officials are having discussions with the trade union movement and I hope to be able to come back on Report Stage with a satisfactory amendment. I anticipate we will be able to have satisfactory discussions on behalf of the staff involved. It is not intended here to use the heavy hand or anything like that. Obviously, it is intended that there will be widespread discussion and consultation before the transfers take place.
On that basis, there is no more to be said on this section; we should wait for Report Stage and withdraw the amendments at this point. I thank the Minister for that commitment. It certainly is very progressive from the trade union point of view.
Acting Chairman
I am grateful to Senator O'Toole but we have to follow procedure.
Amendment, by leave, withdrawn.
Amendment No. 118 not moved.
Acting Chairman
Amendment No. 120 is consequential on amendment No. 119; Amendment Nos. 121, 122 and 129 are related and all may be discussed together.
I move amendment No. 119:
In page 26, subsection (1), line 41, after "request" to insert "after consultation with the employee/employees involved".
I appeal to the Minister to take this amendment on board. It is broadly in line with her comments earlier with regard to this section. It is vital that the rights of employees who are being transferred are protected. The Minister pointed out that they will not be requested to take less favourable conditions than they have already, but the fact that they are being transferred could create major problems and difficulties for employees of other bodies — employees of local authorities or whatever — who are being drafted in the agency for a year, two years or even for a longer period. It is important that full consultation would take place with those employees or employee, as the case may be, and their representatives. Very often decisions are taken without proper consultation with the employees involved in situations which could arise under this section. This could cause major difficulties and problems and could lead to strike action. If the Minister accepts the principle of amendment No. 119 and includes it under section 30, it will alleviate the fears of every individual involved.
I accept that the Minister does not intend to use the heavy hand or, indeed, offer less favourable conditions to employees who have been transferred but the transfer, in itself, could cause major problems, not alone for the employee but for his family as well. That is why I put down this amendment and, unlike Senator Upton, I have not received a letter from any trade union about it. I see this as one difficulty that could arise under this Bill. Therefore, I appeal to the Minister to accept the spirit of amendments Nos. 119 and 120 and introduce them on Report Stage.
Is amendment No. 121 being also taken at the moment?
Acting Chairman
Amendments Nos. 121, 122 and 129 are related.
As far as I am concerned, they all arise out of the last one and I have nothing further to say. I do not want to press those until the Minister comes back on Report Stage because the issues Senator Norris and myself have just raised are precisely the same.
I am very heartened by what the Minister has said. She seems to be indicating that there is a process of negotiation going on at the moment with the trade unions which will lead to the satisfactory framing of such an amendment. Obviously I would consider my own amendment to be the best because it obviates the necessity for a whole series of other small amendments. It puts in a kind of governing clause that no order shall be made under section 30 of this section without the recognised trade union or staff representative being notified in writing and the representations being considered that would govern a whole series of areas so I think it is slightly tidier.
Like Senator O'Toole, I do not intend to waste the afternoon by waffling on. I commend the Minister for the undertaking she has given, that she will be looking at this area very seriously. We will be back on Report Stage and I will leave the amendment in abeyance until Report Stage.
I support the point made by Senator Naughten that the rights of employees being transferred to this new agency be taken into account and that before any such transfer takes place there should be consultation between the relevant trade union and the employees concerned. I ask the Minister to take this into account on Report Stage.
Acting Chairman
If the Minister indicates that she wants to speak, it is her privilege to do so. She can come in at any stage of the debate.
It is with a view to proceeding with matters as quickly as possible that I am coming in again. I want to reiterate what I said during the discussion on the last amendment. It is my intention, following the discussions that are taking place between my officials and the trade union movement, to come back, if it is appropriate, on Report Stage. All these matters were dealt with during the discussion on the last amendment and, therefore, I believe we are being rather repetitive.
I accept the principle of what Senators are saying and it is my intention, too, that there would be maximum consultation, agreement and so on. It is not the intention to use the heavy hand. On the contrary, it is the intention to transfer people as smoothly as possible from existing public authorities to the agency. Subsequent to this discussion I have an amendment which further clarifies the matter in relation to conditions, remuneration, tenure of office and so on, of the people so transferred.
Again, I will not labour the point. I am pleased with the attitude the Minister has adopted but I remain puzzled as to why there is a proposed change in procedures in relation to people being transferred to the Environmental Protection Agency as distinct from what happened when people were transferred to An Post, An Bord Telecom, Coillte and, more recently, the Health and Safety Authority. I do not understand why there is a change. I do not understand why it is now desirable that there should not be included in the Bill a requirement that the trade unions should be consulted, because that requirement appears to have been in the legislation which dealt with the trasfer of people to all those organisations. I remain puzzled by the changes.
It is simply for this reason, with the transfer of staff to those other bodies it was a finite transfer. They were transferred and that was it. There was no intention to further transfer people 12 months or two years later.
This agency's job will be expanding all the time and I cannot say for certain what functions the agency might have transferred to it two or three years from now. It may well be desirable to transfer to this agency responsibility for a number of matters currently in the domain of other public bodies. It would, therefore, be appropriate since we are a small country with limited resources to transfer also the people who currently operate and work in those bodies and have responsibility for those functions. Therefore, it is not desirable to limit the transfer of staff simply to when the agency is being established or to a particular date in the future. It is desirable in the interest of the environment and in the interest of having the best people placed in the appropriate job that we will be able, as we transfer functions, to also transfer the staff. As I said, those transfers will take place following consultation with the public authorities involved and with trade union representatives and so on. I do not envisage that there will be much difficulty and we would be very foolish if we were to tie our hands completely.
The transfers to An Post and all the other bodies were finite transfers and it was not anticipated that other functions and other people would be transferred in the future. I might add that when the Marine Institute were being established those same provisions existed in that legislation. Despite the fact that precedents are not always a good thing and one should not always be tied by them, there is a precedent in the Marine Institute Bill for this kind of provision.
The sentiments the Minister expressed are fine. I cannot see how there would be any difficulty in achieving the objectives and the goals the Minister has spelled out if that was qualified by an obligation to consult the trade unions. My view is that the trade unions are quite sensible people, they are quite realistic and I cannot see how it would create any problem if Senator Norris's amendment was accepted vis-à-vis the trade unions, as they would have to be informed and consulted — and the employers would have to be consulted — before the transfer takes place. I am not arguing that matters have to be, as it were, fixed at some moment in time and that they should never evolve. Obviously they will evolve and I have no doubt in the capacity of the trade unions to put the welfare of the organisation and their own members — as a first priority.
As I explained earlier, it is the intention to come forward on Report Stage with an amendment that I hope will satisfy Senators. Senators O'Toole and Norris are prepared to accept that.
Acting Chairman
Is amendment No. 119 being pressed?
Having listened to the Minister I am satisfied that she is prepared to bring in an amendment on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 120 to 122, inclusive, not moved.
Section 30 agreed to.
SECTION 31.
Acting Chairman
Amendments Nos. 123 and 124 are related, amendments Nos. 125, 126, 127 and 128 are consequential, amendment No. 130 is related and all may be discussed together.
Government amendment No. 123:
In page 27, subsection (1), line 15, after "concerned" to insert "; and if a dispute arises between the Agency and any such person as to terms and conditions prevailing immediately before his acceptance into the employment of the Agency, the matter shall be determined by the Minister for Finance, after consultation with the Minister".
All these amendments relate to the tenure of staff transferred to the agency. My amendment No. 123 is in response to those amendments and I hope it takes account of their intent. Section 31 (1) clearly provides that the terms and conditions relating to the tenure shall not be less favourable than those prevailing on the transfer to the agency from another public authority. In the normal course of events any disputes will be referred to the Minister for the Environment and the Minister for Finance and separate legislative provisions are not strictly required. However, in order to allay any fears the staff interests may have in regard to tenure I am proposing this amendment for the resolution of disputes. If the objective of amendments Nos. 125, 126, 127 and 128 to subsections (1) and (2) is to ensure that the staff transferred will not suffer a deterioration in their conditions relating to tenure save in accordance with the collective bargaining agreement, then the matter is already provided for in section 31 (1). As such the amendments are not necessary.
As the terms and conditions relating to tenure are provided for specifically in subsection (1) there is a need to exclude this matter from subsections (2) and (3) and this is the reason the words which the amendment seeks to delete appear there. If the words were not deleted there could be confusion as to what terms and conditions would apply in so far as tenure is concerned. The wording in this Bill is similar to the wording in other legislative provisions such as the Labour Services Act, 1987 and the Safety, Health and Welfare at Work Act, 1989.
I am grateful to the Minister for the explanation. It arose out of a briefing by SIPTU and they obviously read it as I read it. They put a sinister construction on the phrase in subsections (2) and (3) to exclude the protection of tenure because, it says, that a person "shall not, while in the employment of the agency, receive a lesser scale of pay or be made subject to less beneficial terms and conditions of service other than those relating to tenure." The exclusion of tenure appeared to make the employee vulnerable in the area of tenure. Having being advised by SIPTU that this was the case I tabled my amendments. However, I am reassured by the Minister's explanation that it was a technical exercise in drafting. I will be happy to withdraw the amendments.
I welcome Government amendment No. 123, because it allays many of our fears. It will ease the fears of many Senators and employees who, for one reason or another, had worries about that section. It meets the aspiration expressed in the amendments and I have no difficulty in withdrawing my amendments.
The Minister gave game, set and match to Senator O'Toole a minute ago and we should give game, set and match to the Minister on this one. A number of us misread section 31 and we should not spend our time debating it at this stage. The amendment obviously meets the requirements of those who made representation to us.
Senator O'Toole is not present but I believe he would accept the Minister's amendment which appears to deal with the substance of the Senator's amendment.
Amendment agreed to.
Amendments Nos. 124 to 128, inclusive, not moved.
Section 31, as amended, agreed to.
SECTION 32.
I move amendment No. 129:
In page 28, between lines 15 and 16, to insert the following new subsection:
"(4) No order shall be made under section 30 of this section without the recognised trade union or staff representation being notified in writing and their representations being considered.".
The Minister has said she will come back to us on Report Stage with substance related to this amendment and I will leave the matter until then.
Amendment, by leave, withdrawn.
Section 32 agreed to.
NEW SECTION.
I move amendment No. 130:
In page 28, before section 33, to insert the following new section:
"33.— The conditions in regard to tenure of office which are granted by the Agency in relation to an employer transferred under section 30 or 32 shall not, while he/she is in the service of the Agency be less favourable than those prevailing for the time being in the Civil Service; any alteration in the conditions in regard to tenure of office of any such employee shall not be less favourable to him/her than the prevailing conditions in the Civil Service at the time of such alteration, save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned. If a dispute arises between the Agency and the Civil Service, the matter shall be determined by the Minister for Finance after consultation with the Minister for the Environment."
Acting Chairman
Is the amendment being pressed?
No.
Amendment, by leave, withdrawn.
Section 33 agreed to.
SECTION 34.
Acting Chairman
We now come to amendment No. 131. This amendment and amendment No. 132 are related and may be discussed together. Amendment No. 133 is an amendment to section 35, not section 34.
Government amendment No. 131:
In page 29, subsection (8), line 35, after "Agency" to insert "and, for that purpose, his pensionable service with the Agency shall be aggregated with his previous pensionable service".
It is a well accepted principle that a pensionable service with an existing authority is aggregated with previous pensionable service for the purpose of calculating benefits and a separate legislative provision is not required. However, in the interests of allaying any fears in the matter I have brought forward this amendment which gives effect to the intent of Senator Norris's amendment.
I am glad the Minister has poached the amendment. She is more than welcome to it. However, I am going to insist on my amendment because the Minister quite rightly chided me the other day for inadvertenly referring to a draftman and I conspicuously referred to that particular person as a draftsperson. The only difference between my amendment and the Minister's amendment is that I say "his/her" but the Minister in a regression into sexism has only specified the male. I hope she will not enter the lamentable argument that the male embraces the female in pronoun terms. I am sure the Minister will be gracious enough to accept my amendment.
Acting Chairman
For the sake of proceeding in a normal way we will have to conclude discussion on Government amendment No. 131.
I do not want to repeat the debate we had on the last occasion but if we were to include "her" in this instance and not throughout the Bill there would be an implication everywhere we had "his" that it did not include "her". As I told the Senator on the last occasion, we discussed this matter, we are looking at the question of making the legislation as non-sexist as possible. I would, therefore, prefer to wait until then if the Senator does not mind.
Amendment agreed to.
Amendment No. 132 not moved.
Section 34, as amended, agreed to.
SECTION 35.
Acting Chairman
Amendments Nos. 133 and 134 are related and may be discussed together.
I move amendment No. 133:
In page 29, subsection (1) (b), line 42, to delete "is nominated as a candidate for election" and substitute "elected to".
It is grossly unfair and interferes with the right of members of the agency that they cannot offer themselves for election without having to surrender their jobs. The same thing happens in regard to some of our semi-State bodies; if a member of the board offers himself for election he is deemed to be no longer a member of the board. That is interfering with the rights of those people. I sincerely ask the Minister to amend this. We all accept that people holding elected office should no longer be members of the board or indeed director general. It is not unfair to ensure that they cannot be members of the board if elected. However, the legislation as it stands prevents them contesting an election. That is unfortunate because it is the right of every citizen to offer themselves for election and, if elected, naturally they would cease to hold these offices. They should, however, have the opportunity of standing for an election if they so wish, although I think it is rather unlikely that somebody of that calibre would be standing for election.
Is that an insult to us or to them?
I am surprised at the Senator — not at all. Their rights are being interfered with due to the fact that they cannot stand for election. I ask the Minister to examine the possibility of putting in an amendment along those lines on Report Stage.
I support Senator Naughten. It seems to me to be a serious infringement of rights. I wonder if it is constitutional because it appears to impinge upon the right to stand for election. I take on board the point Senator Naughten has made to stand for election does not necessarily mean that one will get elected——
As we all know.
Exactly. When elected one should be disbarred because one's primary commitment must be to this House or to the European Parliament or whatever and one will be paid for that. That is a crucial point. I do not think one can be the servant of two masters, particularly when one is receiving a reasonable emolument for it. I am going to oppose section 36 because I think the question of local authorities is quite a different one.
We are not on section 36, Senator.
I am drawing an analogy. I am trying to make a distinction. People should have the right to stand for election. Being nominated and allowing oneself to be a candidate does not automatically mean election, and this legislation as currently drafted would preclude people from taking the option of standing. However, when they are elected they get paid, which is a different situation from that of members of local authorities.
My own amendment is to do with section 35. However, the two amendments are quite clearly related so I will speak to my own first. This is about an employee of the agency. An employee of the agency could be anybody who is not one of the directors or the director general. It could be the person who cleans the offices; it could be the security person who works there at night; it could be anybody who is an employee of the agency. The section specifically says that if a person is even nominated as a candidate for the election they should stand seconded from employment. Let me remind the Minister, because she has not had to go through this yet, that a Seanad election can last three months from the moment of nomination, particularly in the case of the six of us who represent the universities. It may have changed——
We might not be able to get a quorum——
I am not talking at this stage about the directors; I am talking about the employees. The provision in section 35, to which my amendment relates, is that somebody would have to stand seconded for three months in order to participate in a Seanad election. That is a quarter of their annual salary gone for reasons that are not entirely clear. Let us get it sorted out. If conflict of interests were to be an excluding clause then there are many areas where people would not be entitled to participate because they would have conflicting interests. For instance, in private education should people be allowed to run on cultural education panels since there would be a conflict of interest vis-à-vis the public policy as enshrined in the Constitution? I am simply saying that one cannot give conflict of interest as a reason for penalising people in respect of participating in elections.
I am not nearly as enthusiastic about Senator Naughten's amendment as I am about my own because I think there are people in such positions of eminence where a conflict of interest is both visible and apparent and I would be worried about the directors in An Bord Pleanála, as with the directors here, being involved. However, to suggest that somebody who chooses to participate in an election by simply entering a nomination would lose their job on the spot has echoes of certain regimes in eastern Europe that are happily departed. It suggests that the involvement in politics of itself, even the tentative involvement of running for office, for instance, would involve the loss of one's job. There have been optimistic individuals who have run from time to time as Independents on panels other than the enlightened university panel, and have not done particularly well. Nevertheless, they have run as Independents, intending to run as Independents. I think that is in the realms of fair comment, whatever the Chair might think of my comment. However, the director general would have lost his job in such circumstances.
Is the Minister satisfied that a real proportion exists between the minuscule political activity of simply accepting the nomination to run for office and the penalty which is resignation from one's job? I am not entirely convinced that is fair. I think if a director general or a director were to be elected then he or she should make a choice and it should be a definite final choice once and for all, but to suggest that they should not be able to explore the possibility of elective office, using the expertise they have and then clearly, if elected, resign is different from saying that if one as much as puts in a nomination then out one goes, seems to be excessively harsh. What is excessively harsh is the suggestion that there should be a three months gap in earnings simply because for instance, one chooses the Seanad.
Senator Naughten's amendment would allow a director to stand for election to the Houses of the Oireachtas and to the European Parliament while remaining a director of the agency but that if elected the directorship would cease. Let me say generally that, given the nature of the work of the agency and the need for transparency in its objectivity in so far as the public is concerned, I do not think that board members should be actively involved in political electioneering. In addition, if it is considered inappropriate that a person should be a director once elected then there is logic in a person ceasing to be a director once he actively seeks election. The effects of the provisions of this Bill are the same as those for the chairman and members of an Bord Pleanála and I see no reason why the members of the agency should be treated differently.
Senator Ryan's amendment would have the effect of allowing an employee to be elected to the Houses of the Oireachtas or the European Parliament while continuing to be an employee of the agency but if nominated to the Seanad or on becoming a member of the European Parliament through the procedure for filling vacancies, the employee would stand seconded from the agency. I doubt if this is what the Senator had in mind but in any case I feel that we should accept the provisions in the Bill which are the same as those for employees in an Bord Pleanála.
I would stress again that in considering the provisions in this Bill we should have regard to the nature of the work being performed, including the agencies involved in the development process through the integrated pollution control licences, its input to the environmental impact assessment procedures, its supervisory functions and its advisory role to the Ministers and other public authorities. It is vital for the agency's success that its objectivity should not be open to criticism or become a matter for debate because of the political involvement of directors or employees.
First of all, in relation to the director general and directors, I think it would be highly inappropriate that they would seek political office and once they seek it they would have to be seconded from employment. The important thing about the way we are establishing this agency is that we have set out to ensure that, above all else, it is independent. If it is not perceived to be fully independent it will not be successful and will not have the kind of public credibility which is so very important. If any director or director general were to seek office on behalf of a political party of whatever persuasion it would seriously jeopardise that independence. I feel very strongly about that.
In relation to Senator Ryan's comments, it is important that the employees of the agency should not be involved either in political activity of a party political nature. The kind of provisions that exist here exist in the public service generally. Does the Senator think it is desirable that public servants should equally be free to seek nomination and stay in employment while they stand for election to the Houses of the Oireachtas or to the European Parliament? I think on balance the system we have is a good one. It does ensure that there is objectivity and that the public service does not become politicised in any way. Impressions and views of a body are very much formed on the basis of the public persons that are identified with that body, and if a person is identified as having been involved in political party X it does give a view that that body is in some way associated with political party X and so on.
I have some personal sympathy for the case made by Senator Ryan that if somebody is involved in the agency in a low key position it may seem a little unfair. If however, exceptions were to be made the question of where to draw the line would arise. It is better to stick to what we have in the Bill which applies to the staff and personnel and directors of An Bord Pleanála and applies in the public service generally. On balance it is a good system. A person does not lose his job but is simply seconded for the time being once he is nominated to contest an election. We will be going on later to discuss local authority elections. In relation to elections to the Seanad, to the European Parliament or the Dáil, these provisions will apply.
Senator Ryan made an interesting point when he asked if I knew how long a Seanad election goes on. Of course I do. An election campaign can go on forever. One could be a candidate for a year or two, and it would be undesirable that if somebody were campaigning for a long period of time that they would remain and be seen to remain in the employment of a body that, above all else, has always to be perceived to be independent in every sense, to be above reproach and not to be involved in party political activities. There is also the point that if somebody is involved in campaigning, they are being lobbied, and since this agency will have a function in relation to operating an integrated pollution control licence, I think it would beg questions about conflict of interests and objectivity and so on.
On balance, while it may appear to be a little unfair if one takes a particular set of circumstances it is better in the interests of the objectivity of this agency that we stick to the norm for bodies of this kind, and that when people are nominated to stand for elections to the Oirechtas or the European Parliament that they are seconded for the duration of that election and on election that they remain seconded. It also gives the agency an opportunity to fill the vacancy from the earliest date or to take somebody else in to carry out the work for the period of the secondment. If the agency is involved in paying two people at the same time in order to facilitate one to run for election that would place an unnecessary burden on the agency from a financial point of view. It is a more minor point. The main point is objectivity and independence.
One thing that strikes me about the director general and the other directors of the agency having to retire if they accept nominations for politics is that it is highly desirable that those people should be seen to have whatever political colour they have. If they have reached a stage of political development where they are capable of getting a nomination from a political party, I would not like to see any of those people restrained from expressing themselves politically. One of the realities if Irish life is that it is always thrown at us that a certain person is a hack of a certain party. If they are, then it is good——
Mostly one party.
I know. There is the odd exception as well. If that is the situation then it is desirable that the public would know that. In any case they are not prevented from fulfilling far better functions for the party of their choice by way of running campaigns, tossing in money, providing expertise, etc., which would give them, in many ways, far more political influence and involvement than would being an upfront political candidate. Certainly, if a director of this organisation has the capacity to get himself or herself nominated for any of the major parties then what we are talking about is a fairly straightforward and fairly accomplished political animal. If that is the situation, those people should be encouraged to come out with it and let the public know it.
First, the Minister is under a misapprehension about where power lies in this State. If the director general of the environmental protection agency really wants to know where power resides he or she will join certain golf clubs in Dublin — although a female will not be allowed — he or she will join — the chamber of commerce, because power in this State does not necessarily reside within the Houses of the Oireachtas. I wish it did. The truth is that there are ways of exercising influence over the director general of the Environmental Protection Agency that are a lot less obvious than by the political route and which will be used and I am not casting aspersions on whoever the person will be. However, the activities of lobbyists are not by any means either predominantly or exclusively confined to these Houses. They operate in all sorts of other areas where perhaps the environment is more conducive, less transparent — to use the Minister's own phrase — and therefore all the more likely to be successful and perceived to be more likely to be successful.
Second, I know very few people in high public office in semi-State or other bodies in this State whose politics are not, once one gets to know a little bit about them, fairly clear. There are very few genuinely apolitical figures in senior positions in the Irish State sector. Third, the numbers of people involved in the public sector are very large and quite rightly because I believe in a large public sector. If one were to exclude all of them in a consistent way under provisions similar to any of these sections 34, 35 or 36, then a huge section of our society would be excluded from participating in politics except on conditions that would be, to say the least of it, quite draconian.
I am not trying to encourage a campaign on the Minister's part to extend this. In my own case, for instance, I am still an employee of the City of Cork VEC. I am not a secondment. The universities are, in name at least private institutions so they can carry on in their own eccentric ways if they wish. I operate within a section of the public sector which is covered by legislation, the only area of education which is actually covered by legislation drafted in this State. The problem about this is not the Minister's intent, but the inconsistencies, the lack of balance in it. I put down this amendment to raise the issue and to give warning about it. In regard to my own amendment, all I can say is touché, the Minister is quite right; it would have an effect that I did not intend. Therefore, on those grounds alone, I shall have to withdraw my amendment.
I still think it is a bit much to suggest that if we have large agencies — some of which are much larger than this one — with large numbers of employees, everybody who happens to get a job inside the door of the agency is precluded in the fairly draconian terms of later sections from all political activities. All it will do is guarantee a fair amount of covert political activity rather than people operating in the open.
When I put down this amendment I intended it to cover not just the director general or members of the agency but also, of course, the statutory agency. I reiterate the point I made earlier that I believe it is grossly unfair that a group of people are being deprived of the right to stand for an election. That is how I see it. I certainly accept fully that if elected — whether to Dáil, Seanad, European Parliament or indeed a corporation or county council — they could no longer be a member of the agency. That is their choice. If they let their name go forward before the electorate and they are elected, they know the consequences. However, the fact that they have not an opportunity as a citizen to allow their names go forward for election, without putting their job in jeopardy means they are being discriminated against. As I stated earlier, it is not just in this legislation. The Minister pointed to An Bord Pleanála, but the fact that those regulations exist in An Bord Pleanála does not necessarily mean they are right.
I know a semi-State director who wished to run for the Seanad. He had not checked it out and the day he was nominated for the Seanad he ceased to be a director. He did not get elected to the Seanad and he had lost his position as a director of a semi-State agency. That is grossly unfair and is depriving people of the opportunity to go before the electorate and to present themselves for elected office. Whether we like it or not, more people are needed to take an interest in politics. We do not want to put up a barrier depriving people of the right to go for election. That is why I tabled this amendment and that is the spirit of the amendment.
I would like to support what Senator Ryan said. It seems to me to be a very swingeing exclusion of people, particularly people a little bit further down the pipeline. I understand there might be an argument simply in practical terms that the director general of an agency of this kind will have his or her time so fully occupied by the responsibilities of that post that it would be impractical for him or her to take a principal interest in a political career. That seems to be perfectly clear. I do not see, for one second, how somebody could be director general of the Environmental Protection Agency——
I said earlier it would be unlikely.
——if he were in Strasbourg. It is not feasible or tenable. It would be an absolute nonsense. On the other hand, I do not see why somebody lower down the pipeline should not. Surely this would be a useful thing, to have somebody who was environmentally concerned, especially in the Seanad. After all, this is opposed to be the area of the Oireachtas to which persons with particular and special expertise come to bring that expertise to bear upon legislation. I remember, as many will, when Éamon de Buitléar was a Member of the Seanad and brought a very considerable expertise in that area. I would very much welcome somebody like that who was a member of part of the functioning organisms of the agency if they stood for election to the Seanad.
A very practical point that Senator Ryan made is that Seanad elections cover a long period. They take a couple of months. It seems an unnecessary penalty to have somebody removed from the payroll simply because they dared place themselves before the electorate. I would say, again, that I think this is so serious an infringement of the citizen's rights that I wonder if it is constitutional. Perhaps the Minister could address that point. Has the Minister looked into this? It is a right of every citizen to stand for election. Can this kind of legislation arbitrarily do away with the right to stand for election? I do not believe it can.
Obviously, as to whether or not it is constitutional, I do not know if this provision in which there is a precedent in relation to An Bord Pleanála and the employment of public servants and so on, has ever been challenged in the Supreme Court. I am not certain if that is the case, but obviously it is considered constitutional or we would not be doing it. Sometimes things that are often considered to be constitutional do not stand the test of time when they are challenged. I do not know if it has ever been challenged. I am not aware of whether it has or not. Certainly there is a long list of precedents relating to it.
When we talk about the need for the agency to be independent there is widespread agreement about that on all sides of the House and generally among all the groups that I have met. What kind of independence are we talking about? Surely one of the most important areas where the agency has to be independent is in the whole area of politics. Certainly if the director general or directors were to involve themselves with political parties and to seek election, that would seriously jeopardise not just the perception of the independence but the independence itself. In relation to issues of this kind there are differences between political parties of a policy nature and matters regarding the jurisdiction of the agency. It would jeopardise the agency to have their director general or director involved in active party political activity.
There is also the question of course which we discussed on a previous occasion about quorums and getting people to meetings and being able to make decisions. If we were to delete these provisions, three or more directors could run for election to the Seanad at the same time. I know the Senator will tell me it is highly unlikely, but as I said earlier, legislation has to cover all possibilities. If three or four directors were all to run and be involved in a Seanad election for three months, and the agency was to make a decision within two months on a licence application, there would be a difficulty. Whilst there may be problems with individuals who are in low key positions with the agency by way of employment, on balance this legislation which applies to the public service generally and to the staff of An Bord Pleanála and so on, is the correct approach.
In relation to State bodies, Senator Naughten said that perhaps there is too much emphasis on party political types. Senator Naughten almost advocates it as an advantage and as something that should be pursued. I think that anybody taking employment with this agency will be aware from the outset that they are precluded from seeking nomination for election if they wish to stay in employment. If they want to seek nomination, they are not prevented from so doing but they have to take secondment from their employment. I know in other areas of activity where people virtually have to give up their jobs and are unable to return to them.
The provisions here are reasonable in all the circumstances. In particular, the need for objectivity and independence and the reality that that has to be the case, but also the perception that that has to be the case, is very important for the credibility of this agency in the public mind. Bodies are associated with those with a high profile in the organisations and if a particular person is associated with a political party, it will be assumed in the public mind that that body in general is in some way associated with a particular political party. I do not think that is a good thing.
Senator Ryan said that he knew the politics of virtually every senior State employee. I cannot say I share his knowledge because certainly in relation to the public service those whose politics might be identifiable are the exception rather than the rule. The fact that it is the exception is a good thing. It means that public servants can work freely and easily with Ministers of all persuasions; their objectivity and sense of purpose about what they are doing is never questioned and their advice is much more readily accepted as being objective. That would be seriously jeopardised if political alliances were to be readily identifiable, particularly publicly identifiable. That would make the relationship very difficult. Therefore, I think the same applies to this agency and, on balance, it is correct that on nomination for election the person would have to take secondment from employment.
I think the Minister has made a very impressive case and I agree with the position she is taking. We cannot have it both ways. If we want the agency to be independent, and be seen to be independent, it must be independent also of party political leanings, I would suggest. It is very doubtful if the kind of person we want as director general, or as a director, would be the kind of political animal that is implied in a person who has political party affiliations. Therefore I do not think there is any deprivation there of civil liberties or anything of that kind. The logic of Senator Upton's intervention would be that ideally all candidates of this kind for the directorship of an agency should declare his or her party political interest, or whether she or he has one, which is absurd.
Finally, I must say I doubt very much — I cannot claim Senator Ryan's widespread acquaintance with all these personalities in the semi-State sector, but I have known quite a number of them over the years and I can honestly say that the best of them kept their party political affiliations very close indeed to their chests. You might glean their political philosophy perhaps, but that is a very different thing. I think on the whole the Minister has made a very reasonable case.
Having listened to the Minister's very detailed reply, I am sure there is a certain merit in what the Minister states. My reason for putting down the amendments was simply to protect the rights of individuals, whether employed or members of the agency. I believe that it is a right of every citizen to have the opportunity to seek election. I can see, as the Minister pointed out, the difficulty with the director general; but, as I said earlier to Senator Norris, I do not believe that a person of that calibre, receiving the sort of salary he would be on, would be in a big hurry to rush into the Oireachtas.
Taking up another point that the Minister made with regard to my reference to members of semi-State boards, I did not comment one way or the other on the system of appointment; although, let me say, I do not think there is all that much wrong with it. I think the people who were appointed to those boards over the last 60 years in very many cases did a very good job. There were, of course, problems in certain areas; but in what walk of life is there not the odd black sheep? The point I was making was the right of a citizen to stand for election.
Amendment, by leave, withdrawn.
I move amendment No. 134:
In page 30, subsection (2), lines 3 and 4, to delete paragraph (b).
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 135 is out of order.
Amendment No. 135 not moved.
Section 35 agreed to.
SECTION 36.
Acting Chairman
Amendment No. 136 is out of order.
Amendment No. 136 not moved.
Question proposed "That section 36 stand part of the Bill."
May I ask the Minister a question? Given what we have said on a couple of earlier sections, particularly on the conditions of service of the staff of the agency and particularly those who could be transferred from, say, a local authority to the agency, is section 36 not perhaps a unilateral change in their conditions of service, because many local authority employees are actually allowed to run for office in their own local authorities? I am not sure how the distinction is made, but I know that below a certain level of office they are entitled to run for office. If they are transferred into the staff of the agency that right to participate in local authority elections is taken from them by section 36 without any consultation, without any prior discussion with the trade union and without any agreement by a union or staff association. That is an enjoyable little dilemma I want to put to the Minister, but it is not one that will necessarily take us too long. However, it does appear to me to be a problem.
I really think that suggesting that no employee of the agency ought to be allowed run for office for the town commissioners of the small town in which he or she happens to live, which perhaps has no function, or the local urban council, which might have no function in the area of the issuing of significant environmental licences, is using the proverbial mallet to crack a nut. It seems to me that there is a middle way here somewhere. I would accept that there would be a certain incongruity if the agency happened to be based in Dublin, which I hope it will not, and the director general was a member of Dublin Corporation. That is one thing, but to suggest that somebody who happens to work as a clerical officer or on the ancillary or support staff in many areas of an agency like this, cannot even run for his or her local authority is carrying the precaution much too far.
In case there were any worries about it, it appears to me that the way to deal with the problem of transparency is, when we come to section 38, to make sure that the agency is transparent in terms of public access to its documentation and information rather than by imposing what is a fairly draconian provision on people. I would be interested to know — I suspect there always are in the public service — if there are precedents for this exclusion of people who are not direct public servants from membership of local authorities. It is a bit much to suggest that they are only going to have to go on secondment. Given that local authorities do not pay very well, to say the least, secondment effectively means unemployment for the period of four or five years. I would be intrigued as to the view the Department of Social Welfare would take of somebody who signed on and claimed to be unemployed because they had lost their job with this Employment Protection Agency because they happened to be a member of a local authority. The Department of Social Welfare would have an absolute ball with a matter like that. I really think that this is a section which should be looked at again to make a distinction between the directors and perhaps people of a certain level of seniority involved in decision making and the rest of the staff. Otherwise, it is out of proportion.
I would have to concur with what Senator Ryan said and I presume that he would join me in opposing this section. I oppose the section because I think it is a real intrusion. Surely at local authority level the kind of people who are environmentally concerned and who have expertise are precisely the people that one would like to see involved in issues concerning the environment. I cannot think of anything more appropriate than that people who were employees of an environmental protection agency should run for their local authority. Not only do I not think that they should be precluded from it, I actually think they should be encouraged. May I return to make the point I hinted at earlier in the afternoon, when we were discussing another section, members of local authorities are not paid. I think there is a very significant difference between membership of the Oireachtas and membership of a local authority. Membership of a local authority is a function which is done in the interests of the community and voluntarily. It is an extremely valuable service, in my opinion. To remove the possibility from somebody of running for election to a local council or town commissioners or urban district council or whatever it is, simply because they were the employees of the Environmental Protection Agency just does not seem to me to make sense. I think it is most unfair. I think it is grossly unjust. I must say I had to smile a little when several people committed the spoonerism of calling it the "Employment Protection Agency." That is one thing it sure as hell ain't, if I may use the American expression. It is not an employment protection agency, quite the reverse.
It is to ensure that we have clean, green jobs. Senator Ryan felt this was an infringement on people's existing rights and that it was in some way lessening their rights on transfer to the agency. I am advised that local authority staff can run for office in a local authority that is not their own or adjacent to their own. Perhaps we could have a look at it for some classes of local authority staff, if that would satisfy Senators. Generally, the same arguments apply in relation to the director general, the directors and so on and those in senior positions in the agency. Local authorities have a development role and in that context they will be seeking to have as much economic development as possible in their area. The agency will be adjudicating on integrated licences and so on. There is a conflict very often between the interests of a particular local authority and the agency's need to be objective in deciding on licence applications and so on. Conflicts could certainly arise. If Senators wish, I could look for certain classes of local authority staff, perhaps opening the position somewhat.
Question put and agreed to.
SECTION 37.
Acting Chairman
Amendment No. 138 is consequential on amendment No. 137 and both may be discussed together.
I move amendment No. 137:
In page 31, subsection (1) (d), line 10, to delete "take no part in" and substitute "absent himself from".
These amendments are quite simple and hardly need much argument. The view is that, if people have an interest which they are required to declare, the logic of that is that they should not be at the discussion. My own view is that, if you have the director general sitting in front of his directors and if he is the sort of forceful personality one would think he or she should be, and he suddenly says "I have an interest in this which I am now declaring and I am taking no further part in the discussion" he sits back, folds his arms and watches his other four directors discuss something in which he has an interest, that is not rational, sensible or logical. The sensible thing is for him to absent himself and let them take a decision without having the however slight inhibition of his knowledge and awareness of what they say about a proposal in which he or she has an interest. That seems to me to be logical and reasonable, apart altogether from the question of whether it should be legitimate that a director general of the Environmental Protection Agency should ever have the sort of involvement that would result in these conflicts of interest.
By definition, and in the light of the perhaps quite justified draconian provisions of earlier sections that they have at the same time accepted the possibility that the director general of the environmental protection agency would be the sort of person who might have a finger in the pie of a development over which the agency had a say, that seems to me to suggest a little about the director general which would suggest he was not the appropriate person to appoint to that office in the first place. That lack of sensitivity about the possibilities of perceptions of conflicts of interest would be the sort of quality we could do without in a director general in such a sensitive post. If the person manages to walk himself or herself into that situation where he or she has an interest, the logical conclusion is not only should he or she take no part in the discussion but it should be clearly written into the legislation that "take no part" means absent himself. That is the precise implication of the two amendments.
I would be happy to come back on Report Stage and take on board what the Senator has just suggested by way of amendment No. 137 — in other words, that the person shall absent themselves from the meeting, although I have to say that the fact that somebody does not attend a meeting does not mean that those who want to seek to influence cannot do it through other means. I accept the points made by the Senator and I will come back on Report Stage with an amendment along these lines.
I am very grateful to the Minister, as she has been throughout this legislation, for being most patient and forthcoming. Her patience is even more deserving of praise than her forthcoming attitude at this stage. I would suggest, in the light of the Minister's acceptance of the principle of these amendments and also the general issue, that it ought to be written down somewhere, by regulation, guidelines or something, that the director general should be advised that it is not regarded as a good thing that he or she should be involved in areas where there might be a conflict of interest and that clear and specific guidelines to persons in those positions, and perhaps to senior people in other areas of the public sector, that a situation of conflict of interest, however carefully and sensitively handled, is not good for the image of any agency.
As well as making it clear that in the case of a perceived conflict of interest a certain procedure should be operated, the circumstances under which that could happen should be minimised and the person who gets that job should be the right person. There may well be problems with technical services — consultative groups, a consultant adviser or other person. A consultant may have a number of briefs going at the same time. A consultant engineer doing a job for the agency may well be working for a body the agency are investigating or considering giving a licence. That is one thing. However, to suggest that the director general or a director of the agency would be involved in either the ownership of land or connected with the company — the family is different: you cannot be responsible for your family — that they would be directly involved and had an interest in a decision of the agency is not the way a person in that position should conduct himself or herself. Therefore, as well as the most welcome agreement by the Minister to amend this section, I ask her to have a look at the whole idea of warning people like that, before they take on these jobs, about the need for a high level of ethics both in practice and also in perception.
Amendment, by leave, withdrawn.
Amendment No. 138 not moved.
Question proposed: "That section 37 stand part of the Bill."
Where disclosure of interests arise — I intended to put in an amendment to this effect but forgot — where a conflict of interest is declared, it ought to be a matter of public record; it should not be something to be kept secret or in private. If the director general of the environmental protection agency or any of the other directors or bodies mentioned in subsection (1) have a pecuniary or other beneficial interest and if they are prepared to continue on with both that conflict of interest and their other work, the public should know about it. It seems to me there is a case for publishing that.
I think I already gave a commitment to the Senator in relation to the register of interest, that it would be made public when we come back on Report Stage. That should cover the points raised in relation to this matter.
Question put and agreed to.
NEW SECTION.
Acting Chairman
Amendments Nos. 139, 140, 141, 142, 143, 144, 163 and 164 are related and may be discussed together.
I move amendment No. 139:
In page 31, before section 38, to insert the following new section:
"38.—(1) All information other than confidential information obtained by the Agency shall be made available to the public.
(2) All environmental information in the possession of public authorities, other than confidential information as defined in this section shall be available to the public.
(3) All documents, other than documents or parts of documents containing confidential information, held by the Agency, shall be indexed and made available to the public."
Amendments Nos. 138 and 142 in my name are attempts to get around the extraordinary draconian wording of section 38. There are two sections of this Bill which specifically relate to access to information. One is section 107 which says:
The Minister may, following consultations with any other Minister of the Government concerned...by regulations provide for the making available by public authorities of information relating to the environment or to any person or persons upon request.
It uses the word "may" not "shall". Let us not get ourselves confused between "may" and "shall". There are specific provisions in this legislation where the Minister is obliged to make regulations. On the question of freedom of access to environmental information the Minister is accepting no such obligation. It is something he or she is permitted to do on a timescale he or she wishes.
At the same time section 38 simply says:
A person shall not disclose confidential information obtained by him in his capacity as Director General, other director, an employee of the Agency, a member of the Advisory Committee or of a committee or consultative group established by the Agency, a consultant, adviser or other person engaged by the Agency, or a person whose services are availed of..
Uncle Tom Cobleigh and all effectively are covered by the obligation not to disclose confidential information. What does "confidential information" mean? Subection (2) says:
... "confidential information" includes information that is expressed by the Agency to be confidential ...
It is a case of words mean what I say they mean. "Confidential information" means anything the agency says is confidential. It would be literally the menu the director general has in his private canteen. It could be anything, if the group decides it is confidential. It is limitless, it is endless and open-ended as far as the definition of "confidential information" is concerned.
What I have endeavoured to do — I will be interested in the Minister's reply — is to say that all information held by the agency other than confidential information should be made available to the public. In other words, that everything is public except what has to be kept private, not the other way around: everything is private except what has to be made public. There is a fundamental difference. On one hand you can say everything must be kept private except what we let out. The Minister can read the painful correspondence between Cork County Council and various environmental agencies about access to information, where they refused to even give a photocopy of an environmental impact study on the grounds that it would be to troublesome or that there might be a problem of confidentiality or of copyright, that really you must ask the person who drew it up, which is the applicant for a planning appeal, where Cork County Council said they will disclose nothing except what they are told to disclose. You realise that good intentions are not enough here. Unless we give the public specific rights in regard to access to information, local authorities and other agencies will hold onto absolutely everything until they are forced to disclose it. It is safer that way.
The Minister knows more about the European directive on freedom of environmental information than I do. There are a number of principles involved in freedom of information. One is the acceptance of the principle that the public have the right to know everything unless there are good reasons not to tell them.
The reason for exceptions — and this is where my second amendment arises — is national security. The mind boggles at the possibility of the environmental protection agency having information which would be genuinely a risk to national security. There might well be a problem if the Department of Defence wanted to do something and was seeking environmental clearance for it, so we will accept that. The major cases are those where there are reasons of confidentiality, privacy of the individual, trade secrets etc.
Bigger countries than ours, with bigger companies, involving more secrets, more information and more trade secrecy, have far more sweeping freedom of information legislation than we have. My own amendments are effectively taken from the United States Freedom of Information Act — Act, not Bill. It works with a limited effectiveness, but it works quite well. We have had ludicrous cases in this country of information connected with certain matters being refused by State agencies here and being obtained by the same body that was refused the information here via the United States Freedom of Information Act in the United States.
That is the sort of philosophical background against which these amendments should be viewed. My first amendment simply says:
(1) All information other than confidential information obtained by the Agency should be made available to the public.
Arising directly from that is the necessity to make sure that it is not just information in the possession of the environmental protection agency, so paragraph (2) says:
All environmental information in the possession of public authorities, other than confidential information as defined as this section should be available to the public.
That is only logical and reasonable. Unless there is a reason to keep it private, it should be made public.
All documents other than documents or parts of documents containing confidential information, held by the Agency shall be indexed and made available to the public.
It is simply the requirement to keep documents organised. If the Minister is surprised as to why I put in the reference to indexation, it is because it is the classic reason given by Governments and public services around the world as to why they cannot guarantee access to information is that the cost of indexing information to make it accessible to the public would be excessive. The logic of that is, of course, is that there are mountains of information in Government Departments that are not indexed and nobody knows what is in them. How they can decide information is confidential in the first place is beyond me; but, just to make it clear, obviously it must be indexed and must be made available.
The first amendment is to simply make all the information that is in possession of the agency available to the public together with information in the possession of public authorities. What is critical to this is the definition of "confidential information." I accept there are areas of environmental information that need to be kept private. The information I would accept as being necessarily kept confidential would be as follows: information the disclosure of which would constitute a serious breach of the privacy of an individual. I do not want us to get involved in a situation where the privacy of an individual would be breached by the disclosure of information, or information which contains trade secrets, or information the disclosure which is likely to cause substantial harm to the competitive position of an individual. People have to supply information which can often be extremely commercially sensitive but not nearly as often as many local authorities or public authorities in this country believe. The Minister probably knows more about Toxnet than I do at this stage, but when the Toxnet data base was set up in the United States many people squealed about the possibilities of commercial sensitivity. However, only a minuscule number of companies actually used the commercial secrecy escape in order to avoid making data available to the Toxnet data base, which gives people access to information about potentially toxic consequences of various substances.
As regard the definition of "confidentiality", if the Minister wants to talk about national security as in the directive, I am not going to argue with her about that. If she wants to talk about the area of quasi-judicial activities and internal memoranda related to quasi-judicial activity, I am not going to argue about that. The terms of the EC directive on freedom of environmental information would do me fine, subject to this: that it should not be the agency which has the final right of interpretation of what those words means.
The Bill as it stands says that confidential information includes information that is said by the agency to be confidential. I am perfectly happy to have the agency the first body to interpret this legislation, but it cannot be the final body to interpret it. We cannot leave the interpretation of what is confidential information to the body that holds the confidential information — in other words, if there is a dispute, it must be resolved in the courts, not by the agency having the final say.
That is where one of the great distinctions in freedom of information legislation around the world. In the United States Freedom of Information Act it is the courts that resolve disputes between public bodies and the public about the meanings of words. In the Australian Freedom of Information Act it is the government which says what is meant by national security, not the courts. As far as I am concerned, if you leave the body which has the information with the final right to decide what the legislation means without any independent scrutiny, then they have carte blanche to keep everything under control that they do not fancy disclosing, whereas if somebody believes the legislation is being operated improperly and people have the clear right to have the courts adjudicate on the information by seeing the information, then we are in an entirely different situation.
I do not want to get into a long argument with the Minister about the details of my amendments. What I want is a very clear acceptance, that we are all on the same wavelength, that everything should be made public except where there is a reason to keep it private. Secondly, the reasons for confidentiality should be only those that are envisaged in the European directive on freedom of information; and, thirdly, the interpretation of what is meant cannot be kept within the framework of those who hold the information. There must be an element of independence in adjudicating on what they mean and that must mean we cannot leave the agency as the final arbiter. It must be the courts. There are provisions in Canada in relation to occupational health and safety legislation where, if there is a dispute between employer and employees about the possible toxic hazards of a certain substance and the employer says: "I cannot tell you all about this because it is a commercially sensitive subject," there is an independent agency of three people who actually adjudicate on that information and give the employee a reasonable picture without breach of confidentiality.
It must be clear that where there is a dispute about disclosure of information the interpretation of confidentiality cannot rest with the agency or with the State. It must be outside the brief of those who hold the information, otherwise the information would be defined according to their own criteria which are not necessarily in the public interest. The truth is that the more the public sector says it would not be in the public interest to say something the more they are talking about something the public will desperately want to know about.
Do I deal with my amendment next?
Acting Chairman
All these amendments may be discussed together.
I want to deal with my amendment No. 143 which proposes to add the phrase "but does not include any scientific or factual information relating to the environment or any information protected by section 107" which, as Senator Ryan pointed out, provides for the possibility rather than the obligation of acess to public information.
The purpose of my amendment is to narrow the offence of disclosure of confidential information. It is much more general than Senator Ryan's amendment and I am fully in agreement with his amendment. I am coming at it in a very broad way to make the simple distinction between the kind of confidential information which any sensible person would define as such and the whole area of knowledge which is the public's right to know and, particularly, in all the matters that this agency will be dealing with. Here is a broad distinction between the need for discretion in the transactions of the agency on the one hand and the need for the public to have absolute access to information on the other.
I agree with the spirit and detail of Senator Ryan's amendment which he has admirably argued. As he has done on previous amendments, he points out again and again the dead hand of inertia and caution, not the intention to cover up things that are going on — frequently there is nothing of that kind going on — but the natural instinct to tell very little and only what you have to. As a minimum, the Minister should take on board the broad distinction between the need to be discreet in transaction on the one hand and the absolute right of the public, especially in this area where we talk about openness. To have access to information on the other.
All of these amendments are related to the matter of confidential information. In order to accommodate some of the concerns underlying the Senators amendments I have introduced an amendment to section 38 which makes clear that the agency's power to declare information confidential will be subject to the provisions of regulations made under section 107.
These regulations will have to comply with the requirements of the European Community directive providing for greater access by the public to information on the environment. It is intended that section 107 will provide the statutory basis for the implementation of that directive. Regulations to be made under section 107 will place obligations on public authorities to make environmental data available to the public, subject to a limited number of grounds on which such access may be refused and which are provided for in the directive.
I fully appreciate the Senator's desire to delimit the scope of the agency's power to classify information as confidential and I understand the intent underlying these amendments. As I have already stated, my amendment to section 38 clearly eliminates the possibility that the agency can evade the provisions of regulations under section 107. I consider that the ministerial amendment will adequately meet their concerns.
Section 107 provides a comprehensive framework for the introduction of a general requirement on public authorities to provide environmental data to the public. The European Community directive, which must be implemented by 31 December 1992, imposes certain obligations on member states but also allows for a number of safeguards and is, therefore, a reasonable basis for introducing new arrangements in this area.
I would like to bring to the attention of Senators the grounds set out in the directive on which requests for information may be refused. The grounds include information where it affects the confidentiality of the proceedings of public authorities, international relations and national defence, public security, matters which are or have been sub judice or are under inquiry including disciplinary inquiries, or which are the subject of prelimeniary investigative proceedings, commercial and industrial confidentiality, including intellectual property, the confidentiality of personal data and of files, material supplied by a third party without that party being under a legal obligation to do so, material, the disclosure of which would make it more likely that the environment to which such material related would be damaged. The directive also provides that information may be refused where it would involve the supply of infinished draft documents or data or internal communications or where the request is manifestly unreasonable or formulated in a general manner.
Senators will appreciate, therefore, that there are much wider issues involved here and I would be anxious to avoid any further amendments to this section which would prejudice the implementation of the criteria mentioned above and which would have general application throughout the Community. I would stress here that not all the types of information to which I have referred would be declared confidential. The decision will be one for the agency, to decide whether information falls into one of these categories and, if it does, in some cases they may still release it. If it refuses to make it available there will be a system for review of such decisions.
In principle I would not disagree with much of what was said by the Senators and I have looked at the provisions that exist in other countries, particularly in the United States. Even where confidential information is limited to information that would infringe on the privacy of the individual or personal data, or where trade secrets have to be protected, that can often be used as a huge excuse to withhold a lot of information, so it is not possible always to get a definition that meets all the needs.
I believe the agency is the appropriate body to decide in all the circumstances whether or not something is confidential. It may well be argued by commercial interests that lots of information falls into the category of trade secret when by no stretch of the imagination could it. Therefore, on balance, an independent agency such as the one being established by this Bill is the appropriate body to adjudicate on matters relating to confidentiality.
Obviously we are keen that the provisions of the EC access to information directive will not be in any way evaded by the agency and that is why I have introduced amendment No. 140. In relation to that directive we can obviously discuss it further on section 107. Senator Ryan made some comments in relation to that. It will make environmental information that is in the hands of public authorities widely available to the public. That is appropriate. I believe information should be made as available as possible. I accept that there are often costs involved and that they should be met by the person seeking the information. We have to have some control in relation to security-related matters, although that might not be a major issue in relation to this agency, but matters that relates to commercial or trade secrets or matters that relates to personal data.
It would only be desirable that this agency would supply information that relates to the environment and not all information held by public authorities. There are many documents that would be in the possession of the agency in relation to proceedings they may be contemplating taking against somebody where they may feel they are in breach of the law in relation to environmental matters; the agency may be considering taking legal proceedings and may have to get information of various types from professional people in the field and while they are at an early stage, if that information were released to the public it could have serious effects on subsequent legal action. There are times when it would be important that information would not be made available.
The gist of what Senators Ryan and Murphy have said relates to environmental data. Throughout this Bill we have many provisions to ensure that information would be made available, for example, section 64, in relation to monitoring, section 66 in relation to environmental data base and section 86 in relation to the register of licences and so on, and I have given a commitment in relation to the register of interests and making those public. It is certainly the intention that the maximum amount of environmental data would be made available to the public.
I believe, in all the circumstances, it is appropriate that the agency would be the body that would adjudicate on matters relating to confidentiality. In relation to the public not being satisfied that information they sought was made available, under the regulations in section 107, there will be provision for an appeals procedure for people who are dissatisfied. Perhaps we could discuss that when we discuss section 107.
For a Minister who has been able to defend difficult situations that is among the poorest defence I have heard. I am really disappointed. I do not know what the problem is with Irish Governments. We have a directive of the EC Council saying very specific things that have to be done and the best an Irish Government can do is put into a Bill the enabling provision that they may do it. Why is there this resistance to giving rights to the public? Why could we not at least have "shall" instead of "may" in section 107? Even that would make an enormous difference. It is not because of some sort of legal precedent because there are subsections referring to regulations in this Bill which say the Minister shall, but specifically in section 107 on the right of access to information the word used is "may".
The record of Irish Governments in terms of speedy implementation of EC directives is far from good, as is the record of local authorities. I have before me copies of correspondence with Cork County Council about various matters to do with what could reasonably be regarded as environmental information, for instance, a copy of an environmental impact study which they said they would not supply. Effectively, what they said, was they could not make copies because it would be too much trouble, that if they had to copy it for one person they would have to copy it for everybody. A student of mine went to Eolas and he was told he could not have a copy of an environmental impact study because it was a private document. We were trying to do some perfectly legitimate academic work on something to do with environmental effect studies and he was refused permission. It may have been the individual in Eolas dismissing a student because he did not have time to talk to him but the philosophy of privacy secrecy runs through all of our attitude to information.
For instance, I do not know why the technical report of a Bord Pleanala inspector on a planning appeal is not a matter of public record. If Bord Pleanala choose to ignore or overrule the recommendation of an inspector they ought at least in the interests of proper accountability, have to say in public why they disagree with their own technical experts. I believe that about all State agencies, including the environmental protection agency, where the similar provision for an oral hearing is heard. That sort of a report done by a competent professional, which makes one recommendation, should be a matter of public record and the decision of the agency in respect of that should also be a matter of public record. Otherwise you will not have trust.
I have found the United States Freedom to Information Act in my fairly considerable research in the area of freedom of information over the years to be perhaps the best in the world. That Act provides for documents to be provided with what are regarded as confidential matters and matters covered by the exception clauses of freedom of information legislation taken out of those documents. The problem with the Bill as it stands is that while there are provisions for disclosure of certain matters, monitoring data, etc, and one hopes that they will be as successful as we hope they are, there is still no fundamental and necessary change in the philosophical view about disclosure of information. The most specific statement and the most far-reaching is in section 38 which says you cannot disclose confidential information. I agree that confidential information should be properly preserved and what is genuinely confidential should be kept confidential. The penalties for disclosure of information which is confidential for the reasons we all agree are valid should be quite severe. I have no problems with that.
When you leave a body to decide what is meant by the legislation and allow it to interpret the legislation you will have problems. Anything that is sticky for the agency will become confidential. If the agency has made a mess of something, why not classify it as confidential? If the agency itself has information at its disposal which suggests that an earlier decision was incomplete or inadequate, why not keep it confidential? Environmental information as classified and as defined under section 107 may not necessarily carry into all sorts of other areas.
I am disappointed that the willingness to appreciate the public view on many of these issues that the Minister has shown all through this is not evident in her response to these amendments. I do not expect her to accept my amendments but the very least I expected was a commitment that there would be an obligation on the Minister to make regulations under section 107 and even that is not there. Perhaps when we come to it we can talk about it.
I am extremely disappointed with the Minister's response. It does not meet any of the criteria. To suggest that we are bound in some way not to go beyond the EC directive is a very new idea of EC directives because I have a fairly strong view that some of our partner countries in the EC, particularly Denmark, would have regulations about disclosure of information on the environment that would be well in excess of these requirements. I know some of the countries that are considering applying for membership of the EC, such as Sweden, would have regulations about freedom of information that would be revolutionary even by the standards of this directive. If they join will they have to tighten up and make information confidential that is now public simply to meet the conditions of this directive or will they be free to exceed them?
Let us remember what we are trying to do. The Minister's stated view is not to make this country as good as anywhere in Europe in terms of environmental protection. Our view and our intent, and one I share with the Minister, is that this country should be the greenest country in Europe with the best protected environment, the best quality of environmental information, the best quality water, the best quality air. Part of achieving that is the best informed public, who know more than anybody else in Europe about the quality of their environment.
If we have these blanket provisions of secrecy, as we have in section 38, only partially balanced by a milk and water section 107 and by the provisions for disclosure the Minister has identified, then we will still have a situation where large public bodies will keep information secret until they see fit to change it or until circumstances suit them. The Minister is aware that many of the bodies lobbying on the issue of environmental protection find the provisions of section 37 quite unacceptable. My view is that failure to amend section 38 to enshrine the principle of access to information will completely undermine the confidence of the public in this agency. It will be seen to be yet another large body keeping information from the public rather than making information available to them. I am very disappointed with the Minister's reply.
There is a misunderstanding between myself and Senator Ryan. While I do not mind having a misunderstanding if it is appropriate, in this case it is not. If it would satisfy Senator Ryan I have no problem in giving a commitment to put "shall" instead of "may" in section 107. I believe we are talking about a technical matter there. If Senator Ryan is of the view that we are trying to avoid giving out legitimate environmental information, then he is wrong. That is not the intention.
Throughout this Bill in a number of areas there is provision to give information, to do precisely what Senator Ryan asks us to do. I believe, and it is generally the view of the Government, that the maximum amount of information should be given to the public. In my experience in the past year and a half or so it is where groups and communities do not give information that problems arise rather than when they do. Far fewer problems arise when information is given than when information is withheld. Therefore, it is the intention to implement fully the provision of the European Community Directive on Access to Environmental Information which requires that all environmental information held by public authorities, subject to the restrictions that I mentioned ealier about security, trade secrets and matters relating to personal data and so on, will be made available to the public.
In relation to much of what Senator Ryan has had to say, if he believes that substituting the world "shall" instead of "may" in section 107 will meet some of the requirements and difficulties he has I have no problem giving a commitment to come in with an amendment of that kind before we get to section 107.
It may well be that I am putting more weight on "shall" then "may" but I know the Minister's goodwill on the issue is bona fides so I will not get involved in a long argument with her. There are two other issues connected here, one of which I hope will be covered by section 107. The other is the agency's right to be the final arbiter of what in its possession is confidential. The wording of the section — I accept the Minister's amendment subject to the provisions of section 107 — even with the Minister's amendment, means that subject to the provisions of section 107 "confidential information, includes information that is expressed by the agency to be confidential." That is the sort of phrase that leaves everything that is not covered by section 107 open. There may be areas to do with the work of the agency that are not confidential by any sense in terms of the EC freedom of information directive that the agency will be free to classify as confidential. It seems to me that the reverse ought to be the case. The case ought to be that the public should have the right of access to everything except where there is a reason not to let them know. It seems to me the agency will be free to operate.
The agency are not alone in this. Virtually all legislation to do with a State agency that has gone through this House in which I have had a hand, has a draconian provision about the disclosure of confidential information. The penalties are usually quite hair raising. The Minister will make some progress by putting in "shall" instead of "may" and putting an obligation on the Minister to make these regulations. I still think — I am saying this to the Minister more in sorrow than in anger — that the tone of section 38 as well as the content of section 38 will come back to haunt the State in terms of the protection of the environment.
I know, as far as the area of the country that I live in is concerned, that the environmental lobby will not go away. If this agency does not manage to convince people in Cork city and county, where I know a little bit about the problems that have arisen, that they are in earnest and on their side then public trust will be lost very quickly. Public trust will be never to be regained if we get any sort of nonsense from the agency, like the nonsense that Cork County Council come out with when they say that they cannot copy a document, from a file for instance on an air pollution licence, and lumps have been taken out of it, because "there is nothing in the regulations which says we have to show you what we said to An Bord Pleanala about Penchemicals and their pollution licence". They take all of that out and say they will not show it to you.
There are local communities who have received one impression from a company about what they were going to do with an air pollution licence and then discover that something entirely different has been done. They do not know who did it to them whether it was Cork County Council or the company. Cork County Council, who are supposed to be defending those people and protecting their environment, will not tell them what they said to An Bord Pleanala about a particular air pollution licence because they say it is confidential. What are people supposed to believe? That is not the sort of information that is commercially sensitive. It is sensitive because Cork County Council do not want people to know what was going on. That is the only conclusion that people can draw. That sort of wording in a section in a Bill which is about openness and disclosure will confirm suspicions. With that, because I may come back to these at a later stage, I want to withdraw my two amendments.
Amendment, by leave, withdrawn.
SECTION 38.
Government amendment No. 140:
In page 32, subsection (2), line 9, after "confidential information' " to insert", without prejudice to the provisions of section 107.".
Amendment agreed to.
Amendment Nos. 141 to 144, inclusive, not moved.
Question proposed: "That section 38, as amended, stand part of the Bill."
Can the Minister tell me what constraints she thinks exist on the agency subject to section 107? What other constraints exist on the agency not to classify all their business as confidential? Subject to what is covered by section 107 and there are specific provisions in sections 64,66 and 86, what is to prevent the agency saying, "Everything else we do is confidential."?
As I said earlier, the agency will be obliged — and this is why I brought in this amendment — to honour the spirit and law of the EC directive on access to information which requires environmental information to be made readily available to the public. We have just passed an amendment the effect of which will be that the agency cannot use the confidential clauses as an excuse for not implementing fully the provisions of section 107.
Will a person who discloses information within the agency, because he feels it is covered by section 107, have protection? They have, for instance, in the United States legislation to protect what they call "whistle blowers", people who work in the public sector and who disclose information that is being withheld and the person can justify it on the grounds of the public interest. Such people are protected from disciplinary action by legislation in the United States.
Obviously, if an employee of the agency discloses information that is regarded legitimately by the agency as confidential, subject to the fact that they have to implement the European Community directive, then that employee is subject to an offence under the Act. Just like any other offence under the Act, the same penalties apply.
I am extremely unhappy about the position of members of the advisory committee. Given the constraints that already exist, and what can be told to the advisory committee, to suggest in addition to that that members of the advisory cannot even discuss what they are giving advice about with the bodies that nominated them without the permission of the agency, seems to me to be pushing confidentiality much too far. The wording is "A person shall not disclose confidential information obtained by him in his capacity as.....a member of the Advisory Committee.....unless he is duly authorised to do so." The agency, in other words, which is supposed to be taking advice from this independent advisory committee will be able to say, "You may feel you want to talk to your nominating group about this but we will not let you because it is confidential information". If there is a very little information that the agency have that will be confidential, that will not be covered by section 107, then we do not need section 38.
This is one of the catch-all phrases that turns up in all sorts of legislation. It is the inability to think through and the unwillingness to write down in precise detail what is intended. Catch-all phrases are thrown in and it means that everything the agency says is confidential and, therefore, there is no problem. I do not like the idea of people who are supposed to be bringing their own individual talents or, more particularly, the individual talents or skills of a group, on to a committee, having to get the permission of the agency before they can discuss the views they should take on issues that come before the advisory committee. That would make their position extremely difficult.
Progress reported; Committee to sit again.
Sitting suspended at 6 p.m. and resumed at 6.30 p.m.