I move amendment No. 31a:
In page 26, subsection (1), line 9, after "Chapter" to insert "except in the case of a request for such hearing by the Central Fisheries Board, a Regional Fisheries Board, the Environmental Protection Agency or any Local Authority".
Under the Bill, the holding of an oral hearing is at the absolute discretion of the board. My amendment proposes that an oral hearing be granted if the bodies named in the amendment request it.
I am not disposed to accepting the amendment. The provisions of the Bill regarding the appeals board follows planning law and is modelled on the An Board Pleanála precedent. There is no provision in planning law for a single party to have the power to demand an oral hearing. The decision regarding the holding of oral hearings on appeals in the case of planning is a matter which is at the discretion of An Bord Pleanála and it is intended that the holding of oral hearings on appeals under the Bill will be at the discretion of the appeals board.
The suggestion by Deputy Molloy that, for example, the Central Fisheries Board or a regional fisheries board should have an automatic right to an oral hearing could give rise to inequity because, with regard to operations which are for stocking or restocking purposes, such boards may be or are engaged in what is defined as aquaculture and may be applicants for licences under the Bill. It would be inequitable, therefore, to afford to an agency of the State which would be an applicant for a licence, a right which is not available to other parties or interests.
In the interests of the independence of the appeals board, the decision regarding the holding of an oral hearing should be left to the discretion of the board. We have provided for a board the composition of which commands the cross party support of the committee.
The Minister of State's decision is regrettable. It is not identical to those seeking decisions with An Bord Pleanála, which adjudicates on the decisions of local authorities. In this case, the appeals board will adjudicate on the decisions of the Minister.
It has been shown in practice that where an oral hearing is granted, the issues are teased out in greater detail and to the satisfaction of the objecting parties. There is an opportunity to respond to objections. If the appeals board were to adopt a closed policy on oral hearings, applications and their appeals would be decided on the submission of documents, despite the fact that it has often been shown that when witnesses present their case, what looks good on documents does not stand up to cross examination.
If the appeals board were to grant oral hearings in a liberal way and not require extraordinary circumstances to exist before agreeing to them it would not be necessary to press the amendment. However, one cannot be sure what attitude the board will adopt. The provisions do not allow for changes until such time as the legislation can be amended.
We are seeking to win the confidence and trust of the various interested parties, including the different environmental organisations, the freshwater fishery interests and the local communities who we know from experience have taken a keen interest in the development of this industry and have strong views. Permitting them to express those views on paper within four weeks of the Minister making a decision is inadequate to winning their trust and confidence.
I am surprised the Minister of State is not amenable to granting these statutory bodies the right to ask for an oral hearing. Even if a fisheries board were the applicant, there is nothing wrong with it having the power to request that an oral hearing be granted. It is merely a matter of deciding the format the appeal will take rather than confining it to a consideration of documents that must be lodged. No additions can be added to such documentation.
Deputy Molloy speaks as if there was no provision for an oral hearing. However, the Bill provides that there may be oral hearings.
One does not know what policy the board will adopt with regard to the granting of oral hearings. If it adopts a strict approach, such hearings will be rare.
The approach of the board is set down in the Bill. It will have discretion and must exercise it on the occasions when the request for an oral hearing is made. The Bill provides that any person may make an application for an oral hearing and the board will then have to consider that request. Deputy Molloy refers to a policy by the board regarding oral hearings. It must decide in each case whether to grant one and will have to determine that on the basis of submissions made.
Any of the bodies referred to by Deputy Molloy — the Central Fisheries Board, a regional fisheries board, the Environmental Protection Agency, a local authority, a community group, the development agencies or an individual applicant — can make a request and a case to the board for the holding of an oral hearing. While the Deputy does not suggest that an oral hearing be held in each and every case, he suggests that it must be held in each and every case where it is requested by the Central Fisheries Board, a regional fisheries board, a local authority or by the Environmental Protection Agency.
A reasonable request.
Why should one confine the organisations that may have an automatic right to an oral hearing to those defined by the Deputy? Why should BIM or Údarás na Gaeltachta as the development agencies which are statutory bodies, not have an automatic right to an oral hearing? Why not the Marine Institute?
The Minister of State has excluded all of them.
If all of the agencies under the remit of the Minister for the Marine have an automatic right to an oral hearing, why should not the Minister have such a right? It would be absurd. Deputy Molloy argued earlier that rights should not be confined exclusively to statutory bodies. For example, why should a community organisation not have an automatic right to an oral hearing? Such an approach would mean that every case must be decided by an oral hearing where the operation of the board becomes unworkable and where the length of time it takes to process hearings becomes extended.
There is a good precedent in the case of An Bord Planeála. It exercises discretion regarding the granting of oral hearings on a case by case basis. The same principle will apply here. Given the cross party confidence in the composition of the board, such decision should be left to its discretion.
If requests for oral hearing are to be allowed they would have to be allowed to all parties, in which case provision should be made allowing all parties to appeal unless they agree otherwise. Section 49(5) states:
Where the Board is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, it shall serve notice of its decision on the person who requested the hearing, on each other party to the appeal and on each person who, in accordance with section 45, made submissions or observations to the Board in relation to the appeal.
Does the serving of notice of its decision on the person who requested the hearing apply to the decision to hold or not to hold an oral hearing or the decision on an appeal?
That provides for cases where the board will determine an appeal without an oral hearing. In such instances, it is required to serve notice on the person who requested the hearing and on each party.
However, it is not obliged to inform them of the final decision.
Not under this section. The board will be required to notify appellants and respondents of its decision.
My attitude to section 49 depends on a later amendment on the availability of documents after an appeal. It is important that people know how a decision was reached because confidence in the system would be built up as a result. The oral hearings would have greater importance if the An Bord Pleanála model was followed and all documentation was available after the hearings. If inspectors of ports and others were notified, they could judge whether the decisions were arrived at reasonably and comprehensively.
Deputy Ó Cuív referred to another amendment.
I am reluctant to allow discussion on it unless it is relevant at this point.
It is relevant.
We cannot discuss an amendment until it is reached. Perhaps the Minister of State could consider that point and find out a way round it.
Under the Fisheries Acts, interested persons were entitled to an oral hearing in the High Court. However, this legislation removes a person's right to go to the High Court except for a judicial review which only relates to whether correct procedures were followed. A judicial review is not an opportunity for the full hearing of a case in the High Court. The right to a full hearing will be removed in later sections.
I included the statutory organisations in the amendment in an effort to open up the possibility of a greater number of oral hearings. My preferred position is to grant all applicants the right to an oral hearing of their cases. If the Minister of State agreed that was preferable to the list of organisations in the amendment, I would be happy to accept an extension on Report Stage. However, it is important to remember that the opportunity to thrash out these matters at an oral hearing in the High Court will be removed. In those circumstances, there is an obligation on the Minister to give interested parties the opportunity to have matters considered at an oral hearing if that is requested, provided it is not frivolous or vexatious and for the purpose of delaying proceedings.
These complex matters cannot all be thrashed out in documents that must be lodged within four weeks. In many cases people may not see the original application for a few days and it is possible that only two or three weeks will be available. There will be a rushed effort to submit a document which must be comprehensive and cover all aspects of the reason for the objection. Additions cannot be made to it and that is too tight. I would be surprised if the Minister of State does not understand that point because his approach to other points of views has been reasonable in the context of the original Bill which he substantially amended. The legislation requires this further amendment.
It is not as tight as Deputy Molloy suggests. Consideration of appeals is not exclusively confined to written submissions. The board will have the power and the discretion to grant an oral hearing. If a person is aggrieved about a licensing decision, he or she can write to the board, setting out the grounds of their appeal, and request an oral hearing.
A decision must be made within a couple of weeks on the basis of the documents presented. What is the position if an oral hearing is not granted?
If an oral hearing is not granted and the person involved considers that either the licensing authority or the board did not examine all the matters it was required to consider, it would be open to the person to seek a judicial review.
It is very limited.
This undermines the suggestion that there is no access to the courts. The Bill requires the licensing authority and the appeals board to consider a wide range of issues. It sets down procedures which the licensing authority must follow in relation to consultation and which the board must follow in relation to the consideration of an appeal. If the licensing authority or the appeals board does not comply with those requirements or does not consider the matters it is required to consider, it is open to the aggrieved person to pursue the issue by way of judicial review in the courts.
In practice, I envisage that the appeals board may, in exercising its discretion in cases where the issues involved are not complex, decide to determine the appeal from the written submissions. However, in other cases involving, for example, a large application in a new area where there is considerable opposition and some of the bodies to which Deputy Molloy referred make the request, the board may decide to hold an oral hearing. The board will exercise its discretion in granting oral hearings.
We reached a considerable degree of agreement yesterday on the composition of the board and the confidence people should have in it. If we have confidence in the board, we should allow it to be independent and exercise its discretion and judgment with regard to when oral hearings should be granted.
Is the amendment being pressed? The discussion is becoming repetitive.
The amendment should not be put at this point because it has not been fully discussed.
There are relevant factors which we should have an opportunity to discuss. I assure the Chairman that what I intended to say would not have been repetitive. He does not know what I intended to say.
The Deputy may continue, on the basis that his points will not be repetitive.
The Minister of State said the provision is modelled on An Bord Pleanála. I accept that but it is not the same. The number of applications for aquaculture licences will be much smaller than the number of planning permission applications. As a logical corollary, the number of appeals against aquaculture licence decisions will be smaller than the likely number of appeals handled by An Bord Pleanála. One is not necessarily comparing like with like. I agree that the provisions should be similar but they do not have to be coincidental.
There is one argument in favour of oral appeals being at the discretion of the appellants or the respondents. At present, neither the appellant nor the applicant have a right of access to the paperwork on the original decision made by the Minister. As a result, it is important that people have a chance to make their views known before a final decision is made. This might clarify what is admissible. As the Bill currently stands I am leaning towards a right of appeal. However, this will change if subsequent alterations are made. We cannot anticipate what will happen on later Stages.
When discussing appeals against a decision, one could be talking about people of limited means. The court is an impossible lottery for such people. Everything possible should be done to make it unnecessary for people to have to endure the delays and costs of court proceedings.
One of the reasons we are establishing an appeals board is to provide a vehicle for citizens, whether they are an applicant or a third party appellant, to appeal a licence decision without recourse to the courts. There is a right to go to court if one feels that there are grounds for a judicial review.
The amendments referred to by Deputy Ó Cúiv have not been taken. If they had been taken I would have stated that the documents the Deputy is referring to should be made available to the public and that it was my intention to provide for this by way of regulations under the Bill in the same way as they are available in the planning process.
That is why I was anxious to get to that amendment but we are not going to achieve that.
I want to return to a person's right to bring these matters before the court. This can only be done in the case of a judicial review. In a situation where the Minister has granted a licence to which people have serious objections, the licence remains operational. The appellants cannot stop the operation commencing by instigating a judicial review. The only way the enterprise can be halted is by an injunction. In that event, the appellants must give a commitment that they will meet the losses, if unsuccessful. That is the new scenario created by the Minister. Under section 54 of the 1980 Act an individual has the right to appeal a matter to the High Court. The operation cannot proceed until the court had made its decision.
This Bill provides an enhanced mechanism for the public and applicants to appeal licensing decisions which does not necessarily involve recourse to the courts. After this mechanism has been used, judicial review remains an option.
Deputy Molloy seems to be suggesting that there is an arrangement whereby someone aggrieved at each and every licence decision has an automatic right to go to court. The provision he refers to in the 1980 Act refers to a High Court appeal on a decision on designation. The 1980 Act provides for cases where entire parts of the coast were designated as suitable for aquaculture and there is a provision to go to the High Court. Having exercised that right there is no further provision in relation to individual decisions. This Bill includes an enhanced provision in that one has the right to go to the appeals board. If one feels that the licensing authority or the appeals board have not done their job, one has the right to seek a judicial review.
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Tá |
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Byrne, Hugh. |
Nolan, M.J. |
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Fox, Mildred. |
Ó Cuív, Éamon |
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Molloy, Robert. |
Power, Sean. |
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Níl |
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Ahearn, Theresa. |
Finucane, Michael. |
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Bell, Michael. |
Fitzgerald, Brian |
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Boylan, Andrew. |
Gilmore, Eamon. |
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Broughan, Tommy. |
Ring, Michael. |
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Byrne, Eric. |
Sheehan, P.J. |
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Crawford, Seymour. |
Walsh, Eamon. |
