With regard to section 58, amendment No. 32, Deputy Smith is not present to move the amendment.
SECTION 58.
I will move the amendment on his behalf.
No, the Deputy has to be authorised by Deputy Smith to move the amendment and I have not been notified to that effect.
Deputy Smith has asked me to move the amendment on his behalf.
I made the position on that quite clear at the last meeting. Members who cannot be at a meeting should notify me that another Member has been authorised to move an amendment in his name according to section 48 of Standing Orders.
I was authorised, Deputy Smith asked me to attend the meeting.
Are you putting it on record that you have been authorised?
Yes. I move amendment No. 32:
In page 31, between lines 3 and 4 , to insert the following subsection:
"(2) Notwithstanding any other provision of this Part, a person shall have the right of appeal on any decision of the Minister or the Board to the High Court.".
In future I expect, out of courtesy, Members would notify me in advance of such matters.
It was an oversight on our part.
I will not accept this amendment. Section 58 provides that the board may refer questions of law to the High Court. This section allows the appeals board to seek a ruling from the court on any point of law which arises during consideration of an appeal by the board and is based on section 82(3) of the Local Government Planning and Development Act, 1963.
Deputy Smith's amendment seeks to make a provision for a person to have the right of appeal on any decision of the Minister or the board to the High Court. An application to the High Court for judicial review is the mechanism used in the planning acts and I do not intend to depart from this general principle in this case. My object is to ensure the same principles of certainty and fair play which apply in planning appeals are applied equally in aquaculture licence appeals. Provision is made for judicial review in section 73 of the Bill.
Is the amendment being pressed?
The question of making an appeal to the High Court is something people feel very strongly about. If people feel decisions have been made on complex issues without an oral hearing, judicial review brings with it all the difficulties pointed out by Deputy Molloy. I ask the Minister to consider that.
We are providing for an appeals mechanism which does not necessarily involve somebody in the cost of going to the High Court. If Deputy Smith's amendment and Deputy Ó Cuív's point were accepted that each individual case having been heard by the appeals board, would then be heard all over again by the High Court the authority of the appeals board would be undermined and those who were well resourced would be in a better position to pursue their appeals. This would give rise to a degree of inequity. An assumption might be made that this right could always be exercised by somebody appealing against a licence decision, for example somebody with a community or environmental interest. Suppose the appeals board decided not to grant a licence in a case and the licence applicant pursued the case to the High Court, there might well be a different point of view taken. If we are to maintain the strength, authority and independence of the appeals board, it is important the procedure followed is analogous to the situation which prevails in the planning area where decisions are made on an appeal and where a judicial review may be sought if there are grounds for it. Where issues of law arise, the board will have the right to go to the High Court to seek a judgment on those.
It should be a citizen's right to challenge any decision in the courts but that is being denied them in this case as recourse to the courts is being confined to cases of judicial review only. If the Minister, supported by the board, makes a decision to award a license the development proceeds at that point. If there are strong objections from other legitimate interests these have no recourse to preventing a development going ahead. Am I correct in saying a judicial review in the courts would not prevent the operation commencing?
It would be a matter for the courts to decide how to deal with that. I want to knock on the head this idea that people are being prevented from exercising their rights in the courts. That is clearly not the case. We are setting up an independent appeals board which is open to everybody. There is provision for anybody to seek a judicial review on the matters covered by this legislation. That is the same procedure as applies in the planning area. It is generally agreed and accepted that the procedure is one which has worked well and which is exercised quite regularly. We all know of a number of high profile cases where the procedure has been invoked recently. It is entirely a matter for the courts how they deal with individual situations.
In the case of judicial review, the courts will merely adjudicate on whether a decision is valid or invalid; they will not adjudicate on the justice of a case.
That point has been well made.
It has not been well made.
We are just going back over——
The Chairman seems to have a different agenda to the Members; there are only two of us on the Opposition side. Why is it that every lawyer who has consulted me about this has told me that the right to go to the High Court is being withdrawn in this Bill? The Minister says it is not and seeks to get around the problem in some way; he has given us contrary information to what has been received from the senior counsel who have looked at this Bill and who are of the opinion that a fundamental change has been made in regard to an applicant's right to have his case brought before a judge in the High Court if he is not satisfied with the decision. That right should be available to each citizen.
I am not responsible for the advice given by people outside of this Committee.
I did not say the Chairman was responsible.
I am responsible for what is contained in the amendment and I ask Deputy Ó Cuív if he is pressing it.
I may press the amendment but I want to ask some questions first.
I am quite happy to take questions.
We will get through this much faster if we do not keep arguing. One issue of concern to me is that when the Minister raises the issue of judicial review he is talking about a two month period. In other cases it is six months. This relates to section 73 but the Minister mentioned that a judicial review was a substitute for it. Will he provide for a six month period?
Deputy Ó Cuív is asking me a question about section 73——
The Minister introduced that section to the debate.
I do not know whether he has an amendment suggesting a longer period.
No.
If Members have an opinion about the period in which a judicial review may be sought, I am happy to hear the case on its merits. There is an impression that an automatic right of appeal lies to the High Court in respect of individual licensing decisions but that is not the case. A right of appeal currently exists in respect of decisions made about the designation of areas suitable for aquaculture. This Bill sets up a different method of licensing aquaculture based on individual applications for definable sites, an appeals mechanism and a method for judicial review. This is analogous to the planning process. One reason I decided to make the processes as similar as possible is that the public knows, and has a considerable degree of confidence in, the planning process. Rather than having a separate set of rules for aquaculture I felt it desirable, in the interests of making it as user-friendly as possible, to make it similar to the planning system. The process we are debating is the same type of process as applies to planning application, decision, appeal to an independent board and a right of judicial review.
How many more times will the Minister have to say that? This is repetitive. Is the amendment being pressed?
No.
Amendment, by leave, withdrawn.
Sections 58 and 59 agreed to.
NEW SECTION.
Amendment No. 32a was listed with the amendment which was not moved but that was not Deputy Molloy's fault so he may move his amendment if he wishes.
I move amendment No. 32a:
In page 31, before section 60, to insert the following new section:
"60.—All documents relating to the decision of the Aquaculture Licence Appeals Board shall be made available to the public within three days of any decision, including Inspector's Reports and Board Directions.".
The Minister said he sought to comply as closely as possible with the procedures laid down in the Planning Acts. Under Statutory Instrument No. 75 of 1995 this is a requirement under the Planning Acts. I suggest it should also be a requirement under the Fisheries Bill in relation to decisions of the Aquaculture Licence Appeals Board. Bearing in mind the stance of the Government and the Oireachtas on freedom of information, there should be access to these documents. The Minister told Deputy Ó Cuív that he intended under regulations to introduce a requirement that documents be made available. It is neither adequate nor satisfactory that this may be done in regulations made subsequent to the Bill becoming an Act. It is of such fundamental importance that it should be included in the Bill, which is what I propose.
As Deputy Molloy said, I referred to this when responding to Deputy Ó Cuív. It is intended that the appeals board, which closely follows the Bord Pleanála model, will also apply that board's standards on transparency and availability of documents. It is my intention that the appeal regulations will reflect such standards and, as Deputy Molloy stated, in the planning sector that is done by way of statutory instrument. I am prepared to broaden the matters for which the Minister can regulate in this area to include the availability of documents to the public. It is, therefore, my intention to give further consideration to Deputy Molloy's amendment before Report Stage.
Unfortunately I was not au faitwith the procedure as regards moving the earlier amendment and the need for an official substitute. In the regulations mentioned by the Minister, will all the Department’s documentation on the initial decision be available, as would be the case in a planning permission application? In other words, once the application was made, will a person have access to the file and then be able to make an observation which would be available to the applicant? Any appeal can then be based on the file and one will not have to guess what it contains and the basis on which the decision was made.
Heretofore, certain documentation on planning matters was not available but one of the greatest developments in that area has been the availability of all the documentation on the files, which has created much more public confidence in the system. People have a far better understanding of how and why decisions are made and, therefore, are much more ready to accept them. The number of appeals are reduced when people see that the recommendations made have been considered and can read the reasons they were felt to be valid or invalid. Will all the documentation from the beginning of this process be available at each stage to anyone with an interest in the case?
It is my strong view that documentation on licence applications should be available to the public. As Deputy Ó Cuív knows, the Freedom of Information Bill is being considered. In responding to Deputy Molloy's amendment I indicated my intention to widen the scope of the matters for which regulations can be made to ensure the broadest possible availability of information. We are entering an era in which, through the availability of information technology, it may be easier to make information of this kind available to the public and I envisage using such technology to the full for that purpose. In the past there were problems relating to the practical and administrative difficulties of making files available at particular times. The principle Deputy Ó Cuív is raising as to the availability of information is one I accept and I hope to reflect it on Report Stage.
This should be incorporated in the Bill but if the Minister will consider the matter before Report Stage I will withdraw the amendment.
I will.
Amendment, by leave, withdrawn.
Section 60 agreed to.