I welcome the Minister of State at the Department of the Environment and Local Government, Deputy Molloy, and his officials.
Local Government (Planning and Development) Bill, 1997: Committee Stage.
Amendment No. 22 in the name of the Minister proposes to amend the Title. This would appear to suggest that he considers the Title is not wide enough to allow him to do all the things he has decided to do and that he needs to change it to allow some of his amendments to be properly considered.
A number of amendments in my name and, I understand, in the name of Deputy Howlin, have been ruled out of order on the grounds that they fell outside the scope of the Bill as it was first proposed, the Title of which allows the Minster "to appoint additional ordinary members of An Bord Pleanála." Amendment No. 22 would amend the Title to allow the Minister "provide for certain matters relating to An Bord Pleanála", in other words, to allow for certain things other than the addition of members to the board.
I support this amendment and I believe Deputy Howlin would also support it. Would this mean that amendments Nos. 4, 15, 20 and 21 in my name and Nos. 1, 2 and 3 in the name of Deputy Howlin could then properly be considered by the committee? If so I would thank the Minister for his amendment, which I would enthusiastically support.
I support the view expressed by Deputy Dukes. The Long Title seeks to provide for certain matters relating to An Bord Pleanála. While I have no difficulty if the amendments in question cannot be accepted for whatever reason, many of them will make sense to the Minister if we are allowed to debate them. Some have become necessary because of a recent court case brought to my attention. I would like to put the case to the Minister. Even if he is not in a position to accept them today perhaps he would accept them on Report Stage. I would be concerned if they were ruled out of order simply because of the narrow nature of the Bill, which was to provide for an additional two members of An Bord Pleanála. The Minister proposes to expand the scope of the Bill with his own amendments and he is consequently proposing a change of Title. What is good for the Minister should be good for the committee.
I propose we adjourn at 4 p.m. for the Order of Business in the Dáil. I require to be in attendance. Two new Members will be introduced today and there will also be tributes to a revered former Member.
Without commenting at this stage on the matter on which the Chairman must adjudicate, I agree with the suggestion that we adjourn at 4 p.m. for the introduction of two new Members and a vote of sympathy in respect of a Member who was a dear friend to us all.
I agree that we should adjourn the meeting at 4 p.m.
Deputies Dukes and Howlin made an interesting point on the Minister's amendment. They can raise any points on amendments which are ruled out of order in the debate under the relevant sections. It may be helpful if the Minister was given the opportunity to explain his thinking with regard to amendment No. 22.
The point relates to a number of amendments that are out of order. The only matters the committee is entitled to consider are those set out in the Long Title which relate to the appointment of additional ordinary members of An Bord Pleanála and extending indemnification to the staff. This issue was raised by Deputy Howlin during the Second Stage debate. In deference to him, I introduced an amendment.
The House, in instructing the Select Committee to consider the Bill, extended the Long Title to enable that matter only to be discussed. The Minister for the Environment and Local Government, Deputy Dempsey, moved in the House that the Select Committee on the Environment and Local Government be instructed in the case of the Local Government (Planning and Development) Bill, 1997, that it has power to make provision in the Bill to indemnify such member, employee or person connected with An Bord Pleanála against all actions or claims, however arising, in respect of the discharge by such persons of their duties in relation to the functions of An Bord Pleanála and to amend the Long Title of the Bill accordingly. The committee has an instruction allowing it to amend the Bill to cover that point. The amendment of the Long Title is only for the purpose of providing for indemnification. It has not been amended to allow for any other matter.
I thank the Minister for outlining the position. The order of the House specifies what the committee can do in relation to amendments. It cannot do anything else and that is the position.
I appreciate the Minister's point and the instruction from the House is clear. However, I do not consider that the House in giving that instruction wished to close off discussion on any other legitimate items. With regard to the Long Title, the committee can observe the instruction of the House on the basis of the Minister's amendment No. 22 and also benefit from the wider expression of certain matters relating to An Bord Pleanála by discussing the other amendments which have been ruled out of order. All the amendments relate to An Bord Pleanála and the committee would not do any violence to the contents of the Long Title by discussing them.
I appreciate that the Minister accepted the suggestion I made on Second Stage that the indemnity enjoyed by employees of other State boards should be extended to An Bord Pleanála. I thank the Minister for facilitating that move.
Under Standing Orders this is a sovereign committee of the House with the same powers as the House as a whole sitting in committee. I understand that if the committee accepts amendment No. 22, it could then accept for discussion purposes the amendments relating to the broadened Long Title. Is that the case? It would be a narrowing procedure if the order of the House related only to the amendment of the Long Title for a particular purpose. None of the amendments tabled will cause great difficulty for the Minister. Members only wish to make a case on which the Minister may wish to reflect in relation to improving planning laws.
The committee is dealing with a Bill and the two members who raised this issue are senior Deputies who held senior positions in the past. They are well acquainted with the procedures of the House and they are aware that their suggestion is entirely out of place. The amendments they tabled have been ruled out of order and it appears there is an attempt to circumvent the rules of the House to allow a discussion on these matters.
The issues covered in the Deputies' amendments are properly part of the review of the planning laws and regulations which the Minister is in the process of carrying out. The matters will correctly be the subject of future planning legislation. This Bill was specifically introduced to deal with an emergency. There has been a huge rise in the number of planning applications because of the great increase in construction activity throughout the country. This has led to an increase in the number of appeals and the delays in decisions on such appeals has been highlighted as one of the factors that is adding to costs in the building and housing industry.
The Government introduced this Bill to assist the industry and expedite the manner in which planning appeals are decided and comply with the requirements of earlier legislation that all planning appeals should, if possible, be decided within four months. The Bill is not the general review of planning laws which is ongoing at present and to which the amendments are relevant. I must comply with the rules and procedures of the House. It would not be proper or correct to discuss matters which have been ruled out of order.
I regret I cannot allow the Deputies to move their amendments without a further instruction to the committee. The amendments to the Long Title are a direct consequence of amendment No. 13 in the Minister's name and I cannot allow them to be moved without a further instruction to the committee.
SECTION 1.
Amendments Nos. 1 to 4, inclusive, are out of order as they are outside the scope of the Bill.
Amendments Nos. 1 to 4, inclusive, not moved.
Amendments Nos. 5 and 16 are related and may be discussed together.
I move amendment No. 5:
In page 3, paragraph (a), line 18, to delete "chairman" and substitute "chairperson".
This is a technical amendment. I presume when the committee is discussing the section, it can deal with issues of substance arising from my amendments Nos. 1 to 3, inclusive. The purpose of amendments Nos. 5 and 16 is to make the Bill gender neutral by changing the term "chairman" to "chairperson". I doubt the Minister will have difficulty accepting these technical changes. It appears they will be the only amendments that will be discussed at length today.
I saw a bumper sticker on a car recently in Dublin which stated "Being politically correct means always having to say you're sorry". Will Deputy Howlin define what type of being or creature is gender neutral? I and most members of the committee are not gender neutral.
It has been the practice of successive Governments to have gender neutral legislation. The strong practice of the Government of which Deputy Dukes and I were part was to ensure that there were no references to "chairman". It can cause offence to some people and the term "Cathaoirleach" is more often used now because it does not imply gender. The practice is to have gender neutral legislation and the term "chairperson" is commonly accepted. The person who chairs a board will not necessarily always be a man.
The term "Cathaoirleach" is not gender neutral.
Deputy Howlin's amendment would have the effect of replacing "chairman" with "chairperson" by its insertion into the 1983 Act and in the planning Acts generally. The reason the word "chairman" is used in this instance is because the 1983 Act uses the term and this Bill amends that Act. We are, therefore, keeping the wording of the 1983 Act internally consistent.
I agree it is necessary to gender proof legislation by using neutral language wherever possible when referring to persons or positions. However, this amendment is more appropriate for the consolidation Bill which the Government proposes to introduce following the substantial legislative changes it intends to make this year. I ask the Deputy to withdraw the amendment.
I am disappointed the Minister of State cannot take this step towards signalling the requirement of the Government and the view of the Oireachtas that legislation should not provide that positions such as the chairperson of the national planning board should necessarily be filled by a man. That was the case in the past but, clearly, it is not the case now and the Title of the Bill should reflect that fact. I am not enamoured with promises of good intentions when something can be done now and I do not understand why this cannot be done. Is there a legislative difficulty?
It would be done in a piecemeal fashion if it were done in just one Bill. I agree with the principle outlined by the Deputy which has been accepted by all sides of the House for some time. The proper way to amend legislation in this fashion is to do so when a consolidation Bill is introduced. Otherwise the legislation would be inconsistent. Legally, it does not matter what term is used because either gender ismeant by the words. A chairman can be male or female.
Or, as the parliamentary draftsman used to say, the female is comprehended by the male.
There is no disagreement between us.
I am disappointed but there is no point in dividing the committee on it. It is a pity this modest advance could not be accepted.
It is really nothing.
If it is nothing the Minister of State should accept it.
The right way to do these things is the best way. It should not be done in bits and pieces. It is better to have the proper reference of chairperson in all the planning Acts, which will happen when the legislation is consolidated.
I will withdraw the amendment on the basis that the Minister will table an amendment on Report Stage which will insert "chairperson" in all legislation where the word "chairman" occurs in reference to An Bord Pleanála.
There is no point saying I will put forward an amendment on Report Stage. The issue will be dealt with in consolidation legislation.
The Minister of State is rejecting the amendment and that is disappointing.
I am not rejecting the principle. I am simply outlining the right way to do it.
Amendment, by leave, withdrawn.
Amendments Nos. 7, 8 and 9 are alternatives to amendment No. 6 and it is proposed that amendments Nos. 6 to 9, inclusive, be discussed together. Is that agreed? Agreed.
I move amendment No. 6:
In page 3, paragraph (a), to delete lines 33 to 41 and in page 4, to delete lines 1 to 9.
Where the Minister believes that an expansion in the membership of the board is required, this provision enables the Minister, if he or she wishes to expand it quickly, to appoint one, or more than one person, from among the officers of the Minister's Department who is an established civil servant to fill the extra positions the Minister intends to create. No person appointed on the basis of this provision would be a member of the board for a term in excess of nine months.
This provision was discussed at length on Second Stage. The Minister said he wanted to have this facility to ensure that when an emergency or urgency arose and it was necessary to appoint extra members to the board, he could do so quickly. The ability to appoint civil servants would get the board through the time that would be required for consultation with the various bodies which are defined in the legislation as nominating bodies for the purpose of appointments to An Bord Pleanála.
That sounds plausible and reasonable. However, I am not sure this provision is necessary. The Bill is being introduced on the basis that an emergency has arisen and that the membership of An Bord Pleanála must be expanded. We agree with that expansion. However, it cannot be presented as a red hot emergency in so far as we have anticipated this situation for some time. The reports of the board over the past few years have shown that difficulties have been building up in terms of the speed with which appeals are dealt with.
This problem did not appear out of the blue. There are other ways of dealing with it. A number of bodies are recognised in the legislation as nominating bodies. They are invited by the Minister to put forward a number of names so the Government, in making appointments to the board, will have a selection of potential appointees. This practice is designed to allow organisations that have standing in a particular area to give the Government a number of options so the Government is not obliged to appoint the single nominee put forward by An Taisce or other groups. The procedure is also partly designed to allow the Government to have regard to gender balance in making appointments. It is common in these cases that bodies are asked to suggest three names for consideration of whom at least one shall be a man or a woman.
I do not like the idea of appointing civil servants to boards under the circumstances the Minister proposes. I have nothing against civil servants, but the nature of their functions is different from the nature of the functions of a member of a board such as this. Civil servants are part of the permanent administration of the State and they have a certain type of job. Members of An Bord Pleanála are not part of the permanent administration of the State. They have a different job. They are appointed for a specific period and have a specific mandate. They also know that when they are appointed they will not remain on the board for the rest of their careers and, in most cases, that is not their intention. They have a different function, they bring a different viewpoint to the job and they have a different status.
There is a way the Minister can deal with this if he finds himself in extremis and must appoint people to the board for a period to give him the opportunity to carry out consultations. The bodies put forward the required number of names, usually three, from which one person is selected. If the Minister needs a crash extension of the membership of the board, he or she could choose from the people who were not selected from the original lists, select one of them on a temporary basis and go through the consultation procedure again with the relevant organisations. That would maintain continuity in the method of appointment and in the types of people appointed to the board instead of disrupting the Civil Service by appointing some of its members.
We are discussing a number of amendments. My amendment simply seeks to delete the provision. In other amendments, such as No. 8, a different method is proposed. Among the amendments there is a way by which the Minister can respect the spirit of the legislation, provide for an emergency such as is envisaged in the Bill but which I do not think should ever arise and avoid the necessity to be appointing civil servants to such boards. I urge the Minister to accept one or other of these amendments as being a better way of doing the job he proposes than is provided for in the Bill.
Amendment No. 7 is different from that tabled by Deputy Dukes. Deputy Howlin referred to gender proofing. I am a member of the SMI committee and we must also SMI proof all aspects of legislation. It is not good practice to allow only a pool of civil servants from the Minister's office to become temporary members of An Bord Pleanála. There is a vast amount of experience and knowledge of planning and development issues in the Office of Public Works, the building section of the Department of Education and Science and in other Departments. If the Minister decides to appoint civil servants as temporary members of An Bord Pleanála, he should open it to civil servants in all Departments. Why is he proposing to appoint only civil servants from his own office?
Surely if we are trying to encourage flexibility in the Civil Service we should not include such a rigid principle in this legislation. Flexibility is the key to SMI. The Minister should consider this amendment which seeks to ensure that civil servants with professional qualifications and vast amounts of planning experience in Departments other than his own are appointed. I agree with the points made by Deputy Dukes on the general issue of temporary appointees.
I strongly agree with the points made by Deputy Dukes. It has long been recognised that because of the booming construction industry there is pressure on An Bord Pleanála in terms of the volume of applications with which it must deal. This is not because of a greater proportion of appeals but because the volume of planning applications is increasing.
We accepted on Second Stage the requirement for additional members of An Bord Pleanála. The Minister said two new members should be appointed as a matter of urgency. Because there is an elaborate process of consultation through the nominating bodies, he wanted the power to put civil servants from his Department in place in the interim. However, there are a number of difficulties with that proposal. The basis for introducing legislation for An Bord Pleanála was dissatisfaction with direct ministerial control over planning appeals. The model established for An Bord Pleanála has been replicated in a number of other subsequent legislative measures, such as the legislation governing the Environmental Protection Agency. It means a range of interested bodies in planning and construction have a right to make nominations and the Minister is obligated to pick members of An Bord Pleanála from among those eminently competent and qualified people. They are acting in a quasi judicial role and they have the status of a District Court judge with commensurate pay. It is important that these principles are not lost even in an interim arrangement.
If we accept, as I do, the requirement for new members as soon as possible, I do not see why we cannot revisit the list of people last nominated and select from them. That is what I propose in amendment No. 8. Rather than appointing officers from the Department of the Environment and Local Government, the Minister should, on an interim basis for a year or whatever length he chooses, appoint people who were selected on a previous occasion by the organisations which, for the time being, stand prescribed for the purposes of section 7(2)(a), (b), (c) and (d) of the 1983 Act. That would preserve the principles that were important in establishing An Bord Pleanála in the first place. I strongly urge the Minister to do that.
I say all this not because I have any difficulty with the people who would be appointed from the Minister's office. I had the privilege of working with them recently and I know how pressurised they are in dealing with compulsory purchase orders and land acquisitions for major projects, such as the construction of roads or the provision of sanitary services. That division in the Department could not lose two senior people to An Bord Pleanála for a year or so.
I hope the Minister accepts amendment No. 8 which seeks to maintain the status quo by giving the nominating bodies the right to nominate suitable people and allowing the Minister to select from them on an interim basis until the proper new procedure is put in place and a long-term permanent appointment is made.
I wish to make a correction to amendment No. 9 - to delete the comma after "1956".
It should be clear to the Deputies that the provision to appoint interim members of the boards is only a temporary measure to assist the board for a few months while the additional members are being recruited. If amendment No. 6 were accepted, it would remove the provision from the Bill which would allow interim appointments to be made to the board. It was agreed by Members in the Dáil during the debate on Second Stage that it is necessary to provide immediate assistance to the board to ensure that appeals can be dealt with quickly and efficiently. Therefore, we have proposed that interim appointments be made to ensure that this assistance can be given immediately following the enactment of this Bill and in a period during which procedures to appoint the full-time additional members are being followed.
The Government amendment will enable the Minister to appoint temporary ordinary members to the board from among the staff of the board as well as the officers of the Department of the Environment and Local Government, as originally provided. This amendment was tabled following representations made to the Minister on this issue. It will allow the Minister greater flexibility in appointing the interim members.
It should be borne in mind that the interim appointment cannot last longer than nine months and will probably last for a much shorter period, such as three to four months. The temporary appointments are merely intended to facilitate the board while the full-time additional members are being recruited. It should be noted that nominating bodies have two months to make nominations. The Minister will then need time to consider the nominations and the people appointed will need time to finalise their arrangements to enable them to take up their positions. There are few people who could leave a job the moment they got another one. It is reasonable to anticipate a delay of three to four months.
The amendment proposed by Deputy Hayes would permit the Minister to appoint interim ordinary members of the board from among the established civil servants of any Department, not just the Department of the Environment and Local Government. The appointments of interim ordinary members is intended as a stop gap measure to give immediate assistance to the board in the period between the passing of this Bill and the making of permanent appointments of extraordinary members to the board. The Department of the Environment and Local Government is the parent Department of the board and its staff has planning and local government expertise which would make them the most suitable for the interim appointments. Moreover, delays might be caused in negotiating with other Departments for transfer of their staff. There is a precedent for the appointment of Department officers to the board under section 12 of the 1983 Act where a vacancy arises due to death or illness. Therefore, it is more appropriate that the appointments are made from among the officials of the Department of the Environment and Local Government. These staff will not be representing the Minister in any way on the board but will be appointed to act as independent members.
Deputy Howlin's amendment would require the interim appointments to be made from among those persons previously selected for nomination by the specialised panels for appointment to the board. The idea behind these temporary appointments, as I have explained, is that they can be made very quickly to provide immediate assistance to the board while the permanent additional members are being recruited. This purpose would be defeated by the suggested amendment as it would take time to allow these persons to be released from their current jobs.
Moreover, these appointments are expressly on a temporary basis for probably only three or four months. Those persons previously appointed may not be interested in taking up this employment for a short period with no guarantee they would be selected when the permanent posts were filled. The procedure set out in the Bill is much more flexible and feasible to implement than those suggested in the amendments.
Amendment put and declared lost.
Amendment No. 7 not moved.
Amendment No. 8 has already been discussed with amendment No. 6.
I am disappointed with the Minister's response. There is a fundamental principle involved in that a structure was put in place to identify particular groups as the nominating bodies which would ultimately serve on An Bord Pleanála. It is extremely important to preserve that principle. I withdraw my amendment on the basis of my intention to resubmit it on Report Stage.
Amendment No. 8 not moved.
I move amendment No. 9:
In page 4, paragraph (a), line 6, after "1956," to insert "and the employees of the Board".
Amendment agreed to.
The textual correction has been noted.
I move amendment No. 10:
In page 4, paragraph (b) line 18, after "section 3(2)" to insert "of this Act".
This is a drafting amendment to correct an ambiguity.
The amendment would clarify that the appointments to the board are being made under section 3(2) of the 1993 Act. I accept the amendment.
Amendment agreed to.
Amendments Nos. 11 and 12 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 4, paragraph (b), line 24, after "section" to insert "and where such an appointment occurs the Minister shall submit to each House of the Oireachtas the reason or reason(s) a person, or persons, were appointed".
This amendment seeks to ensure the Minister would inform the Houses of the Oireachtas of the reasons a person or persons were appointed from the four categories of nominating bodies. It would be a good practice for the Minister, who has been given this power to appoint additional board members by the Oireachtas, to inform the Houses of the reasons for such appointments, such as whether the person had a particular expertise or professional qualification in planning or development. It is not a very controversial amendment. It would also tell the other nominating bodies whose candidates were unsuccessful why the successful candidate was selected.
My amendment No. 12 is designed to retain balance among the nominating bodies. For example, if the Minister were appointing two additional members the amendment would require him to ensure they represented different interest groups. It sounds like a complicated mechanism but it is simply to ensure vacancies are not filled by the same nominating cohort, so that industry or the NGOs representing the environment, for example, would not be exclusively represented. I hope the Minister will accept that.
Deputy Hayes' amendment would require the Minister to explain to the Oireachtas his reasons for the appointment of persons as additional ordinary members of the board. Persons of appropriate experience and ability will be appointed for this task from among the nominees of the various specialised panels. There is no need to explain these appointments to the Oireachtas and there is no precedent for such procedure.
It must be remembered the appointments are being made from among nominees who a wide range of organisations consider suitable. Deputy Dukes battled with me on many previous occasions in Opposition on issues of this kind and he will recall I always sought this kind of procedure for the appointment to State boards, although it was not always accepted by the then Government.
Now is the Minister of State's chance.
It is in the Bill that the persons to be appointed will have to be selected from names that have been submitted by the nominating bodies. The bodies make their recommendations under four panels - the planning and development panel, the environment and amenities panel, the economic development and construction industry panel and the social, economic and general interest panel.
A wide range of interests are represented under those headings, such as the construction industry, the Royal Town Planning Institute, the Institute of Engineers, the Society of Chartered Surveyors, the Royal Institute of Architects of Ireland. The environment panel includes An Taisce, Bord Fáilte, Irish Resource Development Trust, the Royal Irish Academy, the County and City Managers Association and the Irish Architectural Archive. The economic development and construction industry panel includes the Construction Industry Federation, the Congress of Trade Unions, Forfás, the Irish Business and Employers Confederation and the Chambers of Commerce of Ireland. The social, economic and general interest panel includes Aontacht Cumann Riartha Aitreabhthóirí, ACRA, the National Association of Tenants Organisations, the National Youth Council, the Irish Farmers Association, the Creamery Milk Suppliers Association, the Council for the Status of Women and the Irish Countrywomen's Association.
Far be it for me to seek to interpret the reasons they were chosen as——
The Minister of State has rightly read out a very impressive list of organisations represented on the panels. Does he agree there must be enough people from all those nominated but not appointed to fill new vacancies on the board for a period of not more than nine months, with all the assurances of quality and consistency he wants? Is the Minister not making the same point which was made earlier?
What choice does the Minister have?
Deputy Dukes is mistaken. The nine month appointments would not be made from the persons nominated by the panels. Those who would be appointed for nine months would be appointed on an interim basis from the Department or An Bord Pleanála.
I urge the Minister not to be quite so disingenuous and obtuse. He read out a very substantial list of organisations, all of which have nominated more than one person and one person has been appointed from each panel. Among the people nominated by these organisations, there is a sufficient number of people who have not been appointed. The Minister has a very wide choice of persons from which he may, under the provisions of this Bill, select two to serve for a maximum period of nine months while he goes through the whole process again. That represents an embarrassment of riches.
I can personally attest to that.
On the passing of the Bill - presuming it is passed in its current form - these organisations will all be approached and asked to make nominations and it is from those nominations that the selection will be made. People have been appointed to panels by the organisations which they represent. The decision to select any of them is a matter for the Minister's discretion and it would be invidious to expect an explanation as to why one person was selected over another. I would not like to be put in that position.
Deputy Howlin's amendment would provide that, in the event of the appointment of up to four additional members to the board, only one would be appointed from each of the specialised panels and, in the event of the appointment of up to eight additional members to the board, no more than two would be appointed from each of those panels. As has already been indicated, the Minister intends to appoint two additional members to the board and it is unlikely that more than three additional members would be appointed. If that were the case, we would need to look at the entire structure of the board and therefore Deputy Howlin's amendment would be unnecessary. However, I will give him an undertaking that a balance will be maintained among the additional members of the board.
It should also be noted that all members of the board serve in an independent capacity and, while they bring the benefit of their experience to it, they do not represent their various nominating organisations. In effect, it is very unlikely that four additional people would be appointed and highly unlikely that eight additional people would. If that were to happen, the entire structure of the board would need to be examined. We are introducing a measure here to meet a situation which has arisen but, if the number of appeals to be decided by the board is maintained at its current high level or if it were to increase substantially so as to require the appointment of four additional members, there might be some merit in the Deputy's suggestion. A more fundamental examination of the board's structure would have to be carried out to elicit whether that would be the proper way to proceed. I am not opposed in principle to the Deputy's suggestion but I do not think it is required in the current circumstances. Should the Deputy wish to press the matter, I will give it further consideration prior to Report Stage. It would be possible, under the Bill as it stands, for the board to appoint four or eight additional members.
Does the Minister want to deal with the issue now rather than return to it on Report Stage?
I do not see anything wrong in principle with the Deputy's suggestion but I do not think the situation will arise. I will, however, reconsider the amendment prior to Report Stage.
What is the position in regard to amendment No. 11?
I wish to discuss my amendment with the Minister. I take exception to the argument that the Houses of the Oireachtas, which give the Minister power to appoint people, should not have the right to find out why a particular person was appointed. Organisations which continually put people forward are asking questions and are dubious as to why some people are selected over others. The Minister has the power to make the final appointment and should inform these Houses whether particular appointments are made because of candidates' professional expertise, geographical or political location and so on. The kind of Glasnost the Minister preached when in Opposition should now be clearly instilled in this Bill. It is time the Minister got his thinking, in Government and Opposition, in tandem.
I have no difficulty in getting my thinking in tandem. The Deputy will be aware that I have never been in a position to make any such appointments. If the Deputy wishes to know why certain people were appointed and others were not, he might be able to find out much closer to home in his own party.
I have made my position on this matter clear; I believe it would be invidious to oblige the Minister, under legislation, to state his reasons for selecting A over B when both were proposed for the same position. I assume that all of the nominating bodies would only put forward people they considered suitable for appointment and it would then be for the Minister to choose between them. People appointed under the Act might not always wish to make particular decisions but, in order to fulfil their duties and obligations, they would be obliged to do so. I doubt whether anyone who has exercised this power would wish to be put in a position where he or she would be required to explain why a particular person was selected.
I had not intended to comment on this amendment but I want to make it clear that the people appointed to these positions are absolutely above reproach. The general pattern of appointments to An Bord Pleanála has been exemplary and I do not recall anyone ever having any difficulty with the appointments made by successive Ministers. I am seeking to preserve the independent structure which exists, even in regard to interim appointments, as that provides the basis of people's confidence in the planning appeals system. Having made two appointments to An Bord Pleanála during my term as Minister for the Environment, I am aware of the difficulties involved. A Minister must choose from lists of people, many, if not all, of whom are eminently qualified to serve on the board. The fact that some people are chosen while others are not should not reflect badly on those who are unsuccessful.
The Minister is correct in saying that everyone who is nominated is qualified as they come through a nominating system although it might be possible to say that one person was better qualified than another. The system is similar to an interview where merits and demerits could be accorded to contenders for a position. The executive authority ultimately falls to the Minister and I understand the logic of his argument in this instance.
Is Deputy Hayes pressing his amendment?
Yes.
Amendment put and declared lost.
What is the position with regard to amendment No. 12?
The Minister has undertaken to reflect on this between now and Report Stage and, perhaps, introduce his own amendment.
Amendment No. 12 not moved.
Question proposed: "That section 1, as amended, stand part of the Bill."
In a recent case the High Court deemed a very narrow interpretation of the law to be the law. There are only two ways in which an appeal can be served on An Bord Pleanála - in person or by post. Mr. Justice Kelly held that a facsimile appeal was not valid. I understand that in the same case an appeal handed to the doorman was deemed not to be valid because he was not an employee of the board, although he handed over the appeal to an employee.
There is much talk of the information super highway, electronic mail and so on. While we cannot address this issue now I hope this issue will be addressed in the course of a general discussion on planning matters and that we will ensure that those who wish to communicate with An Bord Pleanála may do so other than by restricted, old fashioned methods when modern technology, whether it be facsimile or electronic mail, is available for the purposes of communication with State agencies and semi-State boards.
This section is designed to help An Bord Pleanála get into a position where it can deal more expeditiously with the increasing number of appeals before it. While they are unsatisfactory in their present form we are all agreed on the measures proposed in the Bill although I am disappointed the Minister has not accepted any of the amendments. However, these measures will not be enough——
That is not correct.
——to deal with the situation which faces us. It is clear that other action will be required along the lines of the amendments we have tabled to this section but which have been ruled out of order. For example, it is necessary for An Bord Pleanála to be more forthcoming about the reasons it makes decisions. Like others I have been critical of some of the board's decisions. In some cases, perhaps, criticism has been levelled at decisions by the board by persons who do not have a full appreciation of all of the facts, including myself. The process would gain substantially from the board giving a fuller exposition of the reasons for making decisions.
It would also be useful if the board took a more open approach to the way it deals with requests for oral hearings. Again, there may be solid administrative reasons why it decides to refuse an oral hearing. However, we should be conscious of the fact that these are not always persuasive to those directly involved. Confidence in accepting decisions made by our planning system would be improved if the board were to explain at greater length and with more clarity the reasons in many cases it refused to hold an oral hearing.
Mention was made on Second Stage of the importance in our system of third party rights to an appeal, a right that will come under attack in the not too distant future. If that right is to be maintained, vindicated and properly understood there is a corresponding duty on An Bord Pleanála to explain why it makes decisions in the way it does and why, in specific cases, it does not grant a request for an oral hearing. We will return to these matters when we have the opportunity to debate the planning system more generally.
The matters raised by the Deputies are of legitimate concern and are rightly the subject of the review of planning legislation which is ongoing. The House will have an opportunity to discuss these measures when the Minister introduces the legislative proposals arising out of the review, and following widespread consultations throughout the community with regard to suggested improvements in the planning legislation.
We can pass amendments now allowing for proper access to An Bord Pleanála. This will not devalue the review. However, the Minister of State is aware that comprehensive planning legislation is years away, given the length of time it will take to complete the review, undertake consultations and enact legislation. These significant changes can be made immediately. I do not think we should decide not to do what is good simply because we must wait for the best.
It is planned to have legislative proposals before the House by the end of the year.
It may take another year to debate them.
That depends on Deputies. It may only take weeks.
Some of us try to make meaningful changes to legislation.
Question put and agreed to.
NEW SECTIONS.
Amendments Nos. 13 and 14 are related; amendment No. 22 is consequential on amendment No. 13 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 13:
In page 4, before section 2, to insert the following new section:
2.-Where the Board is satisfied that a member of the Board, an employee of the Board or a person whose services are provided to the Board under sections 10(2), 13(1) and 21(3) of the Local Government (Planning and Development) Act, 1976, has discharged his or her duties in relation to the functions of the Board in a bona fide manner, it shall indemnify such member, employee or person against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.".
On Second Stage Deputy Howlin raised the issue of providing in Statute an indemnification for members and staff of An Bord Pleanála. I indicated in my reply that I would consider the issue in the context of this Bill. I appreciate the actions of Deputy Howlin in advancing his amendment on this issue and accept it is important that the members and employees of the board are indemnified where they perform duties in good faith. It was intended to introduce such a provision in the next planning Bill. However, in view of Deputy Howlin's proposed amendment I have decided to include such a provision in this Bill.
While I accept the spirit of the amendment put forward by Deputy Howlin, some modifications to its wording are necessary. Specifically, it is important to specify that persons working on a contract or part-time basis for the board are indemnified as well as personnel on secondment from my Department. Moreover, my amendment provides an indemnity only where the board is satisfied that the actions of the individual in question are performed in good faith. This is in line with indemnity given to persons working for other agencies under the aegis of my Department, for example, the Environmental Protection Agency and the National Roads Authority. I therefore considered it was more appropriate to advance this alternative wording. This provision will rectify an anomaly in respect of the board and its staff regarding a lack of indemnification in respect of the discharge of their functions.
I am grateful to the Minister of State for his amendment and I accept it is better phrased than mine, which I intend to withdraw.
Will the Minister indicate the meaning of the words "in a bone fide manner"? The Minister said the indemnity applies to the people concerned where the board is satisfied that they have carried out their work in good faith. It would be useful to know what is the concept of "bone fide manner" in this connection.
Is there a similar provision in the legislation under which the Blood Transfusion Service Board operates? It is difficult to imagine but if An Bord Pleanála found itself in a position analogous to that in which the BTSB found itself, what would be the extent of the indemnity? Would it prevent a prosecution being taken against a servant or agent of the board who acted in a manner which the board stated it was satisfied was in accordance with its notion of a bone fide matter but which others might consider negligent or an improper use of power? What is the extent of the indemnification? It appears to hinge on the phrase "in a bone fide manner" and I am not sure what that means. Will the Minister enlighten the committee?
It is a matter for the board to decide whether it considers an officer carried out his duties in good faith and in a bone fide manner. The implication is that the board would not indemnify an official for a criminal act he may have committed as a member of the board. It would be wrong for the board to be authorised to indemnify an official in those circumstances. If the board made a judgment that an officer acted in good faith and granted him indemnity, there could be criminal proceedings but it would be liable for whatever costs arose. The officer would be indemnified in such circumstances. This is similar to provisions in the legislation relating to the Environmental Protection Agency and the National Roads Authority.
Does the Minister have a view or can he give the committee any information on how it compares to provisions in the legislation governing the Blood Transfusion Service Board, if any exist? The Minister may not have that information but in light of the events of the past 18 months, anybody producing a provision, if he is acting in a bone fide manner, should check out the positions and compare them.
The committee will accept that the matter raised by Deputy Dukes is extraneous to the discussion.
I do not accept that. The Bill provides indemnity to members and agents of an important agency that carries out important work on behalf of the State and society. However, another important agency which was required to carry out important work on behalf of society recently got itself into serious difficulty. A number of people were seriously injured and so far it has not proved possible to hold anybody fully accountable. Has the Minister considered whether a similar problem could arise in this case? It would have been common prudence after the experience of the past five years to ensure that this matter was checked out before this provision was produced. I warn the Minister against telling me again that this matter is extraneous to the Bill because that is not the case. We should learn from past difficulties.
I am satisfied that the Bill's provisions make sense. They were introduced at the instigation of Deputy Howlin and they are the right way to proceed. The position with regard to the Blood Transfusion Service Board and events there is not part of the committee's discussions. Any queries the Deputy may have in relation to that matter should be referred to the Minister with responsibility for the area who would be pleased to give him whatever information he wants. I am dealing with a planning Bill and the proposals I put forward in response to suggestions from an Opposition Deputy are as comprehensive as possible. They are based on legislation which provided for the establishment of similar boards under the aegis of the Department of the Environment and Local Government. The staff will appreciate the safeguard of the possibility of indemnity in cases where they acted in good faith.
I appreciate the genuine point made by Deputy Dukes. The reason for my amendment is that employees of An Bord Pleanála want the same protection when they are dealing with planning matters as employees of the Environmental Protection Agency have when they are dealing with planning issues from the environmental perspective in relation to access to land, injury and other matters for which they may find themselves liable.
The issue of culpable negligence is completely different. If people act outside their powers or are proved to have been negligent, such events would remain actionable. People would not be indemnified under the Minister's proposals for actions which may be proved negligent in due course. It is important to strike that balance. We must learn from the experience of the past. However, everybody who works in the State sector should not be denied proper indemnity in carrying out their normal duties in a bode fide manner, as envisaged by the Minister's amendment because of mistakes made by others in the past.
Deputy Howlin is aware that was not my intention. I understand and do not contest the need for the provision because employees and members of the board are entitled to this type of indemnity. However, I interpret the Minister's response as meaning specifically that in the preparation of the provision, the only comparisons made and only experience drawn on was the experience of the National Roads Authority and the Environmental Protection Agency, both of which come within the ambit of the Department of the Environment and Local Government. At no point in the preparation of the provision was any reference made to the experience of the State or boards in any other area where there were major difficulties. This shows a certain deficiency in the preparation of the provision.
Amendment agreed to.
Amendment No. 14 not moved.
Amendment No. 15 is out of order.
Amendments Nos. 15 and 16 not moved.
I move amendment No. 17:
In page 4, before section 2, to insert the following new section:
"2.-Any member of the Board in office immediately prior to the passing of this Act shall continue in office as if this Act had not been enacted.".
The amendment seeks to insert a transitional provision for existing board members.
Deputy Howlin's amendment would clarify that the provisions in this Bill apply only to the proposed new members of the board and that existing members would continue in their current positions as at present. The amendment is unnecessary. The Bill provides for the appointment of new members. It does not attempt to reconstitute the board, which continues in existence as before. The position of existing members is unaffected.
I asked my party's legal advisers to examine the Bill and I am advised that it would be better if this amendment were made, unless there is a good reason why it should not be made and for the avoidance of doubt. Is there a legal reason why it should not be made?
If the Deputy gives me the basis of his legal opinion, I will be happy to have the matter examined before Report Stage.
A humble Opposition Deputy does not have the resources of the Office of the Attorney General. Our legal advice is available.
I will have it examined to see if there is reason for confusion. I am assured it is unnecessary.
It is a widely held view that amendments are looked at by departmental officials in order to find a reason not to accept them rather than to see if they will improve the Bill.
That is not my approach, as the Deputy has seen.
On that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 18 to 20, inclusive, not moved.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill".
I apologise for not having the gift of bilocation and for arriving late to the meeting. Why were amendments Nos. 15 and 20 ruled out of order? I intended to support them.
As this Bill provides for changes in the membership of An Bord Pleanála, these amendments are adjudged to be outside the scope of the Bill as read a Second Time and have been ruled out of order accordingly. Does that answer the Deputy's question?
No. However, as the ruling has been accepted by my colleagues, perhaps the Chairman would furnish me with a copy of it.
That was the subject of our discussion for 20 minutes.
It will be forwarded to the Deputy.
Thank you. I am sorry I missed the discussion.
There will be an opportunity to discuss all matters regarding planning when, as a result of the ongoing general review of planning legislation, legislation will be introduced at the end of the year.
This Bill provides for increasing the membership of An Bord Pleanála for a specific purpose because of a situation that has arisen. We have been authorised to amend the Long Title of the Bill to introduce indemnification for the staff. That is what we were discussing. That is the narrow purpose of the Bill. Other matters can be discussed later in the context of the proposed Bill.
Question put and agreed to.
Amendment No. 21 not moved.
TITLE
I move amendment No. 22:
In page 3, to delete all words from and including "THE" in line 7 down to and including line 12 and substitute the following:
"AND EXTEND THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963 TO 1993, TO PROVIDE FOR CERTAIN MATTERS RELATING TO AN BORD PLEANÁLA.".
It is necessary to amend the Long Title to facilitate the proposed amendment on indemnification. The previous draft of the Long Title is not formulated in broad enough terms to allow for the inclusion of the amendment, as it was limited to amending the 1983 Act only and to permitthe appointment of additional members of the board.
Amendment agreed to.
Title, as amended, agreed to.