Amendments Nos. 38 and 39 are related and may be taken together by agreement. Is that agreed? Agreed.
SECTION 11.
I move amendment No. 38:
In page 17, subsection (1), line 30, after "Agency" to insert ", or by any person".
I want to ensure that people are not disempowered from having a sense of responsibility. If the agency does not wish to proceed, perhaps on account of the weight of its work, it is not proper that citizens should be prevented under the terms of the Bill from responding. The section states that "summary proceedings for an offence under this Act may be brought by the local authority in whose functional area the offence is committed or the Agency". Why can "any person" not be included in that? That would send the right signals that people are responsible as the agency and the local authorities for their local environment.
I agree with this amendment. It is becoming increasingly important for people to feel that they can take action if they have grounds for so doing. People often feel frustrated by agencies and bodies and feel fobbed off; sometimes they are correct in that they have been fobbed off and that there was a potential offence. It is important for people to see that the Bill is relevant to them.
The amendments propose that summary proceedings under the Act can be brought by any person and not just the agency or the relevant local authorities, as I propose in subsections (1) and (5). I cannot accept the amendments. We have thought about it and there are a number of difficulties. It would leave individual operators open to unrestricted multiple prosecutions. It could seriously affect a legitimate enterprise if a series of actions were taken against it. It is appropriate that the power should be given to the bodies charged with the enforcement and implementation of the legislation which have the expertise and are in the process of gathering the information, and not every citizen.
Deputy Eoin Ryan's point is important in terms of the rights of the individual. However, under sections 57 and 58, we will enable anybody to apply to the High Court for an order requiring any person or body to take specified action to prevent or remedy environmental pollution. If the agencies are not doing their job, any citizen has the right to insist they act. However, the notion of everybody being in a position to take a prosecution would act against the best interests of the competent authorities we are establishing to decide on the appropriateness of the various actions available to them under this legislation. I think that this is the correct way to go about it.
I am disappointed with the Minister's response. It seems that people will be further dissuaded from taking responsibility for a problem in their area. I do not anticipate a mad rush as people are not generally inclined to take that type of action unless they really feel that nobody is listening to them and they are being fobbed off. Is it not the case that in planning matters people have the right to go it alone and take legal proceedings seeking injunctions and so on? It was my understanding that people could take out injunctions and do a great deal more than simply ask the local authority to do it.
My view is that we should establish a basis of law, a competant authority and a corpus of expertise. The notion that every citizen is an expert and can take action is not the correct way to go. In terms of planning generally, the planning authority is the local authority. Obviously, anyone can make submissions to the planning authority but the decisions in relation to granting or not granting permission is exclusively one for the planning authority. There is an appeal mechanism to another independent agency, An Bord pleanála, and the citizen has the right to voice opinions on that but not to go to court, except on a point of law. Of course, every citizen has the right to go to court on a point of law and seek an injunction. I strongly believe the mechanism for taking prosecutions should be vested in the competent authorities we are establishing under this Bill. There will be an onus on them to act and the citizen will have a right to go to the High Court to direct that action be taken, if they prove to be in any way negligent or tardy in carrying out their functions.
I can see the Minister's point to a large extent in relation to this issue, but High Court actions are expensive, there is a later section in the Bill dealing with this. If it were possible to go to the courts it might make the Minister's argument more reasonable, but it is difficult for an ordinary citizen to get someone to represent them in the High Court unless they put money up front. I believe the trend, from an EU point of view, is that the citizen would have a right to more direct action in areas such as this, particularly where European Union law is involved. I can accept the Minister's point, but I do not personally see many people starting actions except where operators of facilities are not complying with various regulations. The Minister should have another look at this.
I will correct myself. Section 58 refers to the appropriate court, not specifically the High Court.
I urge the Minister to maintain as democratic a framework as possible in this aspect of the legislation and I withdraw the amendment hoping that he will.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Section 11 agreed to.
Sections 12 and 13 agreed to.