Amendments Nos. 45 and 46 form a composite proposal and amendment No. 47 is related and with the agreement of the committee all may be taken together.
SECTION 15.
I move amendment No. 45:
In page 21, subsection (1) (a), line 33, to delete "as it considers to be necessary".
This amendment is a fairly simple proposal to delete the phrase "as it considers to be necessary" and amendment No. 46 inserts "as shall be necessary".
During the last day's discussions I tried to accept as many amendments as possible but, unfortunately, I must start today on a bad note. The amendment would remove what I regard as the legitimate discretion of the agency and the local authorities to decide on an appropriate level of monitoring or inspection and replace it with an obligation to carry out such monitoring "as shall be necessary".
The thrust of this, which impacts on a number of other amendments, is to have an agency with expertise and competence to decide on matters in this area. I want to give them as much discretion as I can. As the competent authority it will ultimately decide whether it is necessary. The phrase currently in the section gives it discretion and scope to carry out the functions we would give it under this section. I ask the Deputy not to press the amendments.
The phrase, "as it considers necessary," is subject to a qualification and is rather vague.
The Deputy's subsitute wording is more vague. He seeks to insert the phrase "as shall be necessary" but there is no mechanism to determine who shall decide what is necessary. If it is the agency which decides, what is the difference between that and what is already in the Bill?
I could argue that point but I will not press the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 46 and 47 not moved.
Amendment No. 48 is in the name of Deputy Sargent but he is not present. We will adjourn debate on it.
Amendment No. 49 is in Deputy Ryan's name; amendment No. 50 is an alternative and amendments Nos. 51, 52, 56, 57 and 58 are related and all may be discussed together, by agreement.
I move amendment No. 49:
In page 21, subsection (2), lines 43 to 45, to delete all words from and including "such records" in line 43 down to and including line 45 and substitute "a public record of all monitoring and or inspections carried out by it under subsection (1).".
Keeping a register of the results of the monitoring and inspection carried out by the local authorities and the agency is a good idea and essential. However, this register is not being made available to the public for inspection. This should be changed as one of the principles which should run through the Bill is transparency.
I agree entirely with the Deputy and it is my intention that this transparency and public access would be a hallmark of the Bill. I support his intention but his amendments are not necessary to achieve it. The register which will be established under section 19 will include details of all monitoring carried out by local authorities and the agencies and these will be public documents available for inspection, as already defined in the regulations on access to environmental information, which is the current law under the Environmental Protection Agency Act. Rather than restating all that, it will come within the compass of the existing regulations.
If the information will be available I will withdraw my amendment.
If what the Minister is saying is correct, it will not be necessary to press my amendment. Is he giving an absolute and categorical assurance that all records compiled or kept by the agency and by local authorities will be available for public inspection?
All the data comes under the existing regulations which specify the normal provisions for business confidentiality, etc. but any regulation introduced would have to encompass that. All the data comes into the public domain, as it does currently under the Environmental Protection Agency Act, so the intention to have public access to this information will be enshrined and achieved.
I do not wish to rush beyond this point as it is a cornerstone and a fundamental principle of the Bill, as the Minister said. We all speak of openness, transparency and accountability——
An overused phrase.
Perhaps so but we know who started it.
I have expressed my opinion on all these issues, as Deputy Dempsey is aware.
I do not like the use or abuse of the phrase "within the constrains of normal commercial activities". We have often heard at meetings of committees, such as the Joint Committee on State-sponsored Bodies, the excuse for not giving information or not attending to answer questions from Members, which is that sensitive commercial information might be contained in the reply. If that qualification exists I will press these amendments, if not on this Stage on Report Stage. On the basis of the Minister offering further clarification, not necessarily at this meeting but in a subsequent briefing note, I am prepared to withdraw the amendments with liberty to re-enter, but there should be no exceptions. The information should be there and people should be able to make up their minds about it.
I assure the Deputy that his intention is my intention. To avoid any doubt I will circulate the current regulations. He retains the right to re-enter them on Report Stage but I think he will be satisfied.
In a sense all Opposition Deputies are approaching this issue from the same point. The argument has been well made by Deputies Dempsey and Ryan as to the necessity of having all transactions under this Bill and the records thereof made available to the public. It is an absolute requirement in law that that be done and I would also like written into the Bill provision to ensure that.
The public is well-informed, which is a basic advantage of this society as we enact this legislation. There are also small and determined groups who are well-briefed and want to act as watchdogs of these processes, whether carried out by the Environmental Protection Agency, local authorities or the Department. The last impression we would want to give is that some section of the record was not being made available for one reason or another. That would undermine the confidence of every section of the community in this Bill, particularly environmental activists.
For that reason I ask the Minister to accept amendment No. 51 and include those words in section 4, in which there are already a number of essential guarantees of confidentiality. It states that any local authority or agency shall, if so required by the Minister — who has certain final discretion on these matters — supply to the Minister or any person specified by the Minister records of any monitoring.
Is there a better reason than I have yet to discern why the words I want to insert, which would make this information available to public inspection, cannot be included?
I draw the Minister's attention to a previous amendment where we gave way. He argued that the provision regarding the taking of an action by the agency or local authority should stand, rather than broadening it to allow people in general to take cases. He argued the public could in turn put pressure on or bring a case against the agency or local authority. If that is a realistic option, the public should be made aware of it not by inference, for example, by saying they will get the message if they have the time to read the small print, but by way of advertisements. It is important the words proposed in the amendment or at the Minister's discretion are used. This will ensure the public is not given the impression that only the agency and local authority have expertise and it does not have a role to play. The public would take a great interest in its environment according to the level of information it receives.
I agree with the Opposition Deputies. The intention of the amendment is exactly what I planned to achieve. These registers will be available, specifically under section 19, and open to the public. With regard to Deputy Quill's point about reinserting such sections and words, this is a Waste Bill. The fundamental objective of the waste hierarchy, as we discussed, is minimising waste. Similarly, I am trying to minimise regulations. Some regulations set out the job to be done. The framework of public access to information and an appeals mechanism in cases where people are dissatisfied with the quality or presentation of that information are already set out in regulation under the Environmental Protection Agency Act. It will apply to this Bill in a similar manner. There is no point redevising the same set of regulations for every aspect if this one will suffice. As I promised, I will circulate the regulations to all the Deputies opposite. If they do not fit the bill to their satisfaction I will entertain an amendment on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 50 to 52, inclusive, not moved.
Deputy Sargent was not present earlier. We are still on section 15 and I will allow him to move amendment No. 48.
I move amendment No. 48:
In page 21, between lines 41 and 42, to insert the following subsection:
"(2) The Minister shall draw up within a reasonable time, regulations governing minimum standards for monitoring.".
The purpose of this amendment is to give expression to the Minister's wishes. He must acknowledge that his ability to read the agency's mind is not shared by the wider population. The public needs to be reassured that regulations will be drawn up within a certain time as the Minister's successor in the Department of the Environment may not be as enlightened as him. I am not thinking of anybody in particular in that regard. However, the Minister should vigorously ensure that the regulations are drawn up within as short a period as possible. He should express his belief because it would avoid a situation where much time is spent drawing up important framework legislation which may remain a framework because the next Minister does not consider it urgent to draw up the regulations. I hope the Minister will either accept the amendment or provide for its sentiments.
In the context of Deputy Sargent's contribution, we all put down similar amendments. It was not clear that regulations were in existence. Will the Minister take this into account and include the point in this section that the regulations to which he referred with regard to the Environmental Protection Agency apply?
Deputy Sargent's amendment No. 48 is separate from those just discussed. I have a fundamental difficulty, as I already expressed. I talked broadly at some length about the way I envisage environmental monitoring progressing in this country. The idea behind the Environmental Protection Agency Act and the establishment of the Environmental Protection Agency was to have a specialist agency of technical competence charged with overall monitoring of the environmental quality of all the media. The 1992 Act confers wide powers on the agency in terms of supervision, quality control and environmental monitoring and the amendment would require me or my successor to interfere with the primacy of the Environmental Protection Agency.
If I as Minister were to take powers in this Bill to prescribe the standards to which the Environmental Protection Agency would be subject, it would go against the entire thrust of what I want to achieve. We are getting away from the notion that the Department of the Environment or the Minister is the repository of all wisdom in these matters. In a complex way, we are setting up an expert agency which would have statutory powers which are already defined in the most composite way in the Environmental Protection Agency Act. In any of the provisions of the Bill I do not intend to interfere with the established hierarchy of the Environmental Protection Agency Act, which establishes the Environmental Protection Agency as the expert agency. It is not for me to lay down the standards it should apply.
I understand the Environmental Protection Agency was established to be independent from unhelpful influences.
Unenlightened Ministers perhaps.
I will not be specific. However, I am seriously worried that the Environmental Protection Agency, even though all the people involved are experts, is not as accountable as the Minister in terms of his elected position and his accountability to the Dáil. If an expert agency is to be set up and then cut loose to do what it wishes in terms of its judgment on what should be regulated, how it should be worded and when it should come into effect, we will lose the accountability about which we hear so much. That is totally regressive. This legislation must be handled as democratically as possible, as we are doing at present, and the agency should be accountable. Given the Minister's comments I am worried it will be less accountable than might otherwise be the case if he does not put his foot down and require regulations if they do not exist.
Deputy Sargent's interesting point arises in relation to a number of State bodies which were set up to distance certain decisions from the political process, for example, the Director of Public Prosecutions and An Bord Pleanála. However, under the terms of reference, there is a difference between independence and accountability. For instance, we could summon the chief executive or chairman of An Bord Pleanála to answer general policy questions. This highlights a real difficulty. Taking things out of the political process has some advantages but it also has some disadvantages.
What power do we have?
I accept what is a fair point on the Environmental Protection Agency but I do not want this measure to be seen in isolation. I described it the last day as a brick in a comprehensive environmental wall. It dovetails into the provisions of the Environmental Protection Agency Act from which I repeatedly quote. Section 65 of the Environmental Protection Act, 1992 sets out in clear terms that the agency shall, after consultation with such persons or bodies if any as may be prescribed, prepare programmes for monitoring the quality of the environment and a copy of each such programme shall, as soon as may be, be sent by the agency to the Minister and published by the agency. There follows a very long subsection detailing the programme and what is in included in it. In primary legislation enacted by the Oireachtas there is already a mechanism whereby the agency can establish standards of monitoring. Accountability is also enshrined in that legislation. This provision simply dovetails into the existing law of the land.
Amendment, by leave, withdrawn.
I move amendment No. 53:
In page 22, subsection (6), line 17, to delete "may" and substitute "shall".
I have listened to the Minister's reasons for using the word "may" rather than "shall". He said it ties people's hands but I do not think that applies in this case. There are probably hundreds of Acts which are not enforced and I do not want this legislation to fall into that category but it will unless we insert the word "shall" in place of "may". The implementation of this Bill will cost the local authorities money. They will not implement it if they do not have the power to charge under this and other sections.
It is not good enough that the Minister "may" make regulations requiring payments to the agency or local authority. The Minister should not tell local authorities they must implement this Act and then tie their hands by not allowing them to impose charges. It is an imperative on the Minister that he allow for the imposition of charges. The Bill will impose huge costs on local authorities. We listened to people being very diplomatic about costs but the message that came across was that there will be costs. I have a grave fear that unless local authorities are immediately given the right to impose charges this legislation will just lie in the Statute Book and collect dust.
I concur with the sentiments expressed by Deputy Dempsey in this regard. I am a member of a local authority which is extremely strapped for cash and is now preparing estimates. We are trying to find £2,000 here and £2,000 there — a fairly soul destroying exercise. As local authority representatives we call for devolution of power and of course with power comes responsibility. Unfortunately, many of the powers devolved impose a financial burden on the council which it has no means to recoup, either from the Department or through earning money at local level.
I agree with the sentiment that power must be mandatory rather than discretionary and local authorities must be able to raise the money to cover the expenses that will undoubtedly arise. If not, this will be a futile exercise. We will just have more legislation which they cannot implement because they will not have the necessary resources.
I understand from previous exchanges with the Minister that it is limiting to use the word "shall" rather than "may". However in this context I cannot see any reason this would not be a good amendment. My experience on a local authority has shown me that the method of least resistance is adopted and there will not be too much pressure from some quarters to maintain these records until something goes wrong. Maintenance of records could be cost saving if it avoided legal conflict and cases that could arise from not having proper records. I ask the Minister to be far sighted enough to accept this amendment.
I also support this amendment. There is an onus on us to put an absolute requirement on local authorities to keep records of this nature. It is in the nature of local authorities to let things drift if other priorities emerge. Unless records are kept from the outset we will not be able to monitor the implementation of this legislation or ascertain whether each local authority implements it with equal vigour. Some local authorities may do so but others may not. This issue is central to the success of this Bill. Local authorities are largely demoralised after years of being stripped of finance and function and may not take to this task with the zeal of new crusaders. In the interests of the objectives of this Bill the word "may" should be deleted and something more definite substituted.
I am mindful of the number of times I proposed similar amendments to legislation and I am minded to repeat the response I got at the time. We have to look at the context. I take a genuine look at each amendment and if it is positive in any way, I will accept it. My difficulty in relation to an amendment like this is twofold.
The normal advice one gets from those charged with drafting regulations is that the use of the word "shall" means one can comply with it in a minimalist way or one can give the scope to do a good job. I intend drafting these regulations. The normal standard provision that draftsmen prefer includes "shall" rather than "may" because it allows scope to be exact and take some care in drafting. I am not totally convinced by that argument. My fear would be that if I accepted the amendment in this context, every "may" in the Bill would suddenly be subject to amendment and they do not all readily fit into that. We dealt with one previously which would have limited the scope of the Bill. One must read it in context.
With regard to Deputy Penrose's comments, I have to inform him that I am also drawing up my Department's Estimate at present. I will be involved in a bilateral meeting with the Minister for Finance.
We all wish him well.
I can assure the Deputy that the process is no less torturous than the one he is enduring. I know Members wish me well in that. The Deputy's own estimate process in County Westmeath has no doubt been aided by the good news that area has had on so many fronts from my Department in the past year. I know that will be acknowledged in due course.
Regarding the funding of this legislation, the principle is that the polluter will pay. Provisions will be introduced incrementally to ensure that those who cause environmental damage will be required to contribute towards the remedy. That is what I intend to do. Without giving any hostages to fortune, I accept the amendment.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 and 17 agreed to.