I welcome the Minister of State Deputy Allen. We are pleased to have him dealing with the amendments for the remainder of this afternoon's session. I am informed that amendment No. 128a in the name of Deputy Sargent is out of order on the grounds that it involves a potential charge on the Exchequer and, as such, it cannot be accepted. I must point out to Deputy Sargent that he cannot move this amendment.
SECTION 28.
I accept that ruling.
Amendment No. 128a not moved.
Acting Chairman
Amendment No. 128b, also in the name of Deputy Sargent, has already been discussed with amendment 91a.
Amendment No. 128b not moved.
Acting Chairman
Amendment No. 128c is out of order on the grounds that it involves a potential charge on the Revenue.
Can an amendment ever be accepted even if by inference it involves a charge on the revenue? Does an amendment have to involve a direct charge to be ruled out of order or can it be so ruled if it involves a charge in any form or fashion? Many amendments would affect Revenue by involving charges or perhaps savings.
Acting Chairman
Under Dáil Standing Order 124 (3) any amendment which would incur a charge on the Revenue is automatically deemed out of order.
I understand this but I want to know what are the limitations of the standing order.
Acting Chairman
This is a matter which could be queried in another forum.
Would the Minister like to comment?
The query should not be put to me. I do not have a function in this matter.
Acting Chairman
This is the kind of information which should be sought from the Whip's Office or from some other forum.
Amendment No. 128c not moved.
Acting Chairman
It is with much relief that I hand the Chair back to Deputy Jim Mitchell.
I am only taking over temporarily because I must go to another meeting but I will wait until my appointed replacement arrives.
Amendment No. 138 is consequential on amendment No. 129 and both may be taken together.
I move amendment No. 129:
In page 33, between lines 32 and 33, to insert the following subsection:
"(2) (a) A person who carries on any activity of an agricultural, commercial or industrial nature (including the manufacture of any product) shall have due regard to the need to prevent or minimise the production of waste from that activity and, as the case may be, from any product manufactured by him or her as a result of such an activity, and shall take all such reasonable steps as are necessary for the purposes of such prevention or minimisation (including, where appropriate, steps as respects the design of any product aforesaid).
(b) The Minister may by regulations specify steps, as respects any particular activity aforesaid, that shall be regarded as reasonable steps necessary to be taken for the purposes of the prevention or, as the case may be, minimisation of the production of waste referred to in paragraph (a), and a person who carries on such an activity shall take those steps accordingly.".
We have brought forward amendment No. 129 in response to comments made by various parties at the evidence hearings in relation to waste minimisation. The purpose of the amendment is to strengthen the provisions of the Bill with regard to waste minimisation. Section 28 deals with measures which may be taken to promote, support or facilitate waste prevention and minimisation. Subsection (2) empowers the Minister to make regulations for the purpose of preventing, minimising or limiting the production of waste and outlines the kind of requirements which may be imposed in relation to specified persons, products and activities. However, waste prevention and minimisation should be a basic consideration in all business activities. I accept this should be reflected by way of a general obligation on appropriate persons to have regard to the need to prevent or minimise waste in their activities. This may be regarded as an equivalent of the general duty under section 32 to avoid environmental pollution from the handling of waste once it arises.
Paragraph (2) (a) of the amendment will oblige any person carrying out an agricultural, commercial or industrial activity, including the manufacture of any product, to have regard to the need to prevent or minimise waste from both the activity and any product manufactured and to take all reasonable steps to this end, including taking appropriate steps relating to product design. This general obligation cannot necessarily be given concrete expression in the form of specific obligations.
Paragraph (2) (b) empowers the Minister to prescribe appropriate steps which should be taken by relevant persons as respects any particular activity for the purposes of paragraph (2) (a). Section 28 (5) provides for offences under the section. Amendment No. 138 arises out of amendment No. 129. It provides that a person who contravenes paragraph (2) (b) of amendment No. 129, that is, does not comply with a requirement or regulations to take specified steps for the purpose of the prevention or minimisation of waste from an activity, will be guilty of an offence.
I proposed amendment No. 7 to section 4 which sought to give clearer guidance on what is meant by waste prevention. Waste prevention is at the core of our efforts to formulate a more ecological way of managing our economic activities. Waste Prevention is the title of a publication by the Environmental Protection Agency but I do not think this would be of enormous help to producers and manufacturers as it is almost a leisurely read in a cartoon type format. I hope the Minister will give more attention to making a serious attempt to define, by regulation or amendment, what is meant by waste prevention. In amendment No. 7 I proposed that it should include:
. . . activities in production, which consist of the substitution and the reduction of the use of raw materials, the change of the performance of existing and the design of new processes and products, resulting in the non-generation or the reduction of waste and/or its pollution potential, in the materials life cycle;
The Minister outlined life cycle assessment as being one of the disciplines which would be part of the enactment of this Bill. I ask the Minister to formulate the good ideas contained in the Bill in such a way that members of IBEC can do exactly what the Department requires of them in the knowledge that they will receive every assistance given that the Minister has said there will be a voluntary code for compliance with the Bill. There is still a gulf between the fears of IBEC, which is representative of most industrial manufacturers, and the Department; unfortunantly, there are fears rather than expectations. There is still a bridge to be built. Are there any regulations or further amendments proposed to try to span the gap between the thrust of what the Department is seeking and the practical implementation of this?
Until now waste plans have contained platitudes about waste prevention, reduction and minimisation. They are always included at the top of such documents but there is seldom further reference to them. Most of the detail of waste plans is taken up with landfill which is at the bottom of the waste hierarchy.
The Deputy's amendment to section 4 relating to the waste hierarchy has already been discussed and rejected.
I am raising it in a different context.
Section 28 allows the Minister to make a whole range of regulations to cater for the points raised by the Deputy. The provisions reflect the priority attached to waste prevention and minimisation in the European hierarchy of waste management principles. They seek to ensure that due regard is given to the principle of waste minimisation from the earliest stages of a design or manufacturing process. Critical decisions made at this stage of the process, including the choice of materials, production technology, easy removal of components for recycling, etc., can have a major bearing on the amount of waste arising from disposal in the long-term.
The Attorney General's Office has advised that the obligations under subsection (2) (a) are too general to create an offence in respect of non-compliance. A person must have some reasonable indication of what action is required on their part to comply with a legal requirement. In the absence of regulations it does not meet this test. Therefore, the provision in paragraph (a) serves to focus attention on the importance of waste prevention and minimisation and, in legal terms, it provides a context for specific regulatory obligations under paragrph (b).
As the Minister said, these are general provisions which require a manufacturer to comply with regulations in the production cycle. This means it will be difficult to create an offence for non-compliance. Is there a need for more detailed guidance for manufacturers who want to know how they will get from where they are to where the Minister wants them to be? What will be done in this regard, apart from stating the aspiration of prevention? Prevention in the area of manufacturing is a well worked out science at this stage. Large international business, for example, have a lot to show us as regards their internal processes. However, members of IBEC and independent manufacturers should not only be given guidelines but an opportunity to discuss what they are doing. Will the Minister include such provisions, otherwise, it will not be possible to enforce the legislation which is too general to create an offence.
Deputy Sargent mentioned international companies but they cannot teach us a lot about clean technology. I am sure the Deputy is aware of the excellent units in some colleges and universities which employ experts in this area; for example, I am aware of the excellent work being done in Cork regional technical college. Section 28 (2) (b) gives the Minister sufficient power to implement the regulations required. Other powers are listed in section 28 (3). The Minister has sufficient power in section 28 (2) (b) to attain the objectives to which the Deputy is referring.
I accept what the Minister said, but I look forward to Report Stage when we may be able to discuss it again.
Amendment agreed to.
Amendments Nos. 129a, 130, 140, 141 and 141a are related and may be discussed together.
I move amendment No. 129a:
In page 33, subsection (2) (b), line 41, to delete "may" and substitute "shall".
I tabled this amendment because I am afraid we will be left with fine aspirations but little guidance in this regard. Perhaps the Minister could tell me if regulations will be introduced to back up what is in the legislation. Is there a timeframe for the introduction of such regulations which would assist producers?
Instead of enabling the Minister to make regulations governing prevention, these amendments would require minimisation and recovery of waste, including regulations for the imposition of producer responsibility obligations. If the proposed disallowances are rejected, further obligations would be similarly imposed on Ministers and local authorities in relation to the provision of relevant financial support. I cannot accept the amendments which I regard as unduly prescriptive and inappropriate.
The purpose of sections 28 and 29 is to empower the Minister to make regulations and to enable any Minister or local authority to provide financial support, if that is what is needed, to implement national waste policy. It remains to be determined whether and to what extent some of these enabling powers will need to be exercised. However, it is appropriate that the options should be available because a Bill such as this should seek to anticipate different circumstances which may arise in the future in a flexible and comprehensive way. I assure the Deputy that if and when regulations and other interventions are needed, they will be made. Some of the regulations as set out may not be required, but any regulations which need to be made will be made.
This is the old story of the difference between "may" and "shall". The word "may" is vague and indeterminate while "shall" seems to suggest a more serious approach to implementing the provisions of the Bill. This section is important because many new procedures, which were not in place, are now being established. This amendment reflects my strong wish that these regulations are fully enforced from the beginning. I accept the difficulties already underlined by the Minister as regards the vocabulary used by the parliamentary draftsman.
Amendment, by leave, withdrawn.
Amendment No. 130 not moved.
Acting Chairman
Amendments Nos. 131 and 132 are related and both may be discussed together.
I move amendment No. 131:
In page 34, subsection (3) (b), line 7, after "persons" to insert "or the publication of specified information".
This amendment responds to concerns expressed in submissions to the committee regarding public access to information, especially regarding measures taken by companies in compliance with the requirements of regulations under this section. The purpose of amendment No. 131 is to extend the scope of section 28 (3) (b) to empower the Minister to impose a requirement on a person to publish information arising from the conduct of a waste audit or on the implementation and operation of a waste reduction programme. Such a requirement, for example, would act as an incentive to businesses to ensure a satisfactory performance on waste reduction. In the light of this amendment, I ask Deputy Dempsey to withdraw amendment No. 132.
I accept the Minister is going some way towards what I want but I am not sure he is going as far as I would like. The Minister's amendment states that he may allow for the publication of specified information. My amendment requires information there as a result of any regulation the Minister draws up requiring the keeping of specified documents, records or other particulars to be open to public inspection. The Minister's amendment does not go as far as I would like. I would prefer it if the Minister would withdraw his amendment and accept mine.
We are back to the question of full disclosure and maximum public information. The Minister and his officials will be aware that the experience of giving maximum disclosure of this type of information in the US has been beneficial. Giving the public access to this kind of ongoing information and records puts pressure on the operator of a facility to keep up his standards and monitoring and ensures that nothing less than the highest standards are observed. Letting the owner know that the public has access to all information he sends in will be beneficial. The US experience of this has been positive. Industry there was initially very much against granting open access to the public. However, it is now one of its strongest advocates because it can see its advantages. It means that everybody works to the same high standards rather than trying to get away with doing the minimum, which is what will happen under the Minister's amendment.
I am not convinced by the Minister and he should reconsider his amendment. We are talking about regulations which the Minister may make on keeping specified documents. If he makes these regulations, they should be open to public scrutiny.
Section 28 (3) (b) refers to "specified persons". Is it wise just to talk about specified persons or does the Minister mean something else? It is vital this type of information is not only made available publicly but is advertised publicly because of its importance.
The prospect of the reduction and prevention of waste depends on public compliance. Taking the business world, one only has to talk to Senator Quinn about the example he came across as a proprietor of a large retail chain. He tried to introduce the practice whereby people would not use plastic bags for their shopping. Although other shops agreed to give the idea a week's trial, the public were irritated and annoyed at even having to pay a penny for the bags. He tried to make a dent into the mountain of plastic waste which is growing each year.
There is a vital aspect to this that cannot be covered by regulations and a voluntary code. Business will not opt for a voluntary code if it is seen to put it at a disadvantage to its competitors. The only alternative, apart from draconian measures which are not conducive to best business practice, whatever about best environmental practice, is to make the public understand why these processes are worth while and should be supported. For instance, it is vital the public understands why a certain type of packaging might not be allowed in the interests of waste prevention or reduction. Unless that information is not only made available — this is a weak way of giving it — but promoted, the public, except for those who were convinced of it at the start because of their great interest in the subject, will be left in the dark.
I want the Minister to accept something like Deputy Dempsey's amendment and make information more widely available not only through public inspection but by launching a public information campaign. I am not talking about spending the level of money being spent on the divorce referendum, but about giving the public information on supporting waste reduction rather than telling them to go to the Environmental Protection Agency office in Wexford for information. There is a huge difference between making information available and getting the message across.
Amendment No. 131 provides for sufficient public access to the activities of private sector companies. It would not be wise to allow all records of companies to be examined by anybody on a whim. Any regulations necessary to ensure the public have access to the relevant information will be made by the Minister.
The flexibility in the regulations allows that. In view of that, and the assurances which have been given, I ask that the amendment be accepted. The necessary regulations will be made.
Nobody is asking for all records of all companies to be made available to the public. The records which we wish to have made available to the public are those which the Minister, by regulation, will specify should be available to him, the agency or a local authority. In 99.99 per cent of cases there will not be any sensitive commercial information involved. We are talking about waste prevention and minimisation. In view of the fact that the Minister has moved in that direction with amendment No. 131, I will accept that amendment and withdraw amendment No. 132. I hope that he will go further on Report Stage.
Amendment agreed to.
Amendment No. 132 not moved.
I move amendment No. 133:
In page 34, subsection (3), between lines 35 and 36, to insert the following:
"(h) requiring the producer of a specified class or classes of product to carry out a life cycle assessment in relation to the product, in such manner or in accordance with such standards or procedures as may be specified,".
Amendment agreed to.
Acting Chairman
Amendments Nos. 133a and 134 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 133a:
In page 34, subsection (3) (h), line 36, after "controlling" to insert "on environmental protection grounds".
The section to which this amendment relates proposes to give the Minister the power to make very wide-ranging regulations in respect of the production, or the use in a production process, of any substance or material and regulations in respect of a range of activities such as the distribution, supply, sale, disposal and advertising of any product or substance. That is very far reaching in its implications. The purpose of this amendment is to specify, in the context of the Act, that these regulations should be based on environmental protection grounds rather than, for example, health grounds. It is a very practical and important amendment which I ask the Minister to consider carefully and to respond to positively.
I will not reiterate what Deputy Quill said. The Minister seems to wish to give the Minister for the Environment the power to stop production without stating that it has to be on environmental grounds. The Minister stated in his speech to IBEC yesterday:
I acknowledge that these powers are wide ranging. I must point out, however, that they are not particularly novel and that corresponding provisions can be found in several enactments which provide for prohibitions and other controls on the importation, production or distribution of various substances in the interest, for example, of public health, fire safety or other public interest. The measures contained in the Bill reflect the high status now afforded to environmental protection in a national and international policy and law.
It is an admission that it is not specifically stated in this legislation that these powers which he is taking unto himself are specifically on environmental protection grounds.
It is important to hear from the Minister if there is anything further than the environmental laws cited in the press release from Europe. I hope that is what he will say in his reply. There is an important commercial aspect to what the Minister may be prohibiting, limiting or controlling. He will be advised by the Department. I understand that the Environmental Protection Agency is undertaking work on waste prevention although I do not know how developed that work is. Will the Minister engage in a level of consultation, in either Ireland or abroad, which will assure people that prohibitions will not be made which could later be found unworkable? This amendment goes some way to provide that reassurance.
It would not be appropriate to single out paragraph (h) and insert a requirement that regulations made under that paragraph must be made on "environmental protection grounds" or on stated environmental grounds. Section 28 (2) (a) already provides that regulations made under this section must be made "for the purpose of preventing, minimising or limiting the production of waste or a specified class or classes of waste". These purposes are environmental protection grounds and a further such general provision within the body of the section would be inappropriate.
Amendment No. 134 proposes that regulations under section 28 (3) (h), which, broadly speaking, provides for the prohibition limitation or control of the production of products or wastes, should be subject to the prior advice of the agency. A proposal to require the Minister to seek the advice of the agency in all cases when making regulations under this section is inappropriate in principle because it would alter in an unacceptable way the relationship between the Minister and the agency. It also conflicts with relevant provisions of the 1992 Act in this regard. Under section 55 of the Act the agency may of its own volition, and shall when requested by a Minister, give advice or make recommendations for the purpose of environmental protection.
In practice, the views of the agency will have an important bearing on measures to be taken under section 28. I intend to consult widely in relation to the proposed measures under this part of the Bill. Every regulation being made is based on environmental protection grounds and any provision or regulation in the Bill made for any other reason — for example, blocking the importation of certain products — would be open to challenge in the courts, which would be successful. That does not have to be specifically stated under this section.
What essential difference would it make to the overall thrust of the Bill if my amendment was accepted?
If that provision was included in this section it would have to be included in every section. Including it in this section would relegate the importance of the other sections.
I understand that but it suggests there ought to be a fulcrum point in this Bill where this principle should be specified.
I am told there was a long debate on the Title yesterday and all these points were made quite effectively. The Title encompasses the points raised by all Deputies.
Acting Chairman
I thank Deputy Quill for confining her second contribution to a question; perhaps other Members could follow suit.
We were told earlier that the Minister would have power to restrict certain types of imports that did not comply with the regulations for locally produced goods. Denmark did something in the case of aluminium beverage cans. It decided glass packaging would be used with the result that one cannot buy aluminium cans there, no matter where they are made. The Minister said this could be open to challenge and he would not be in favour of restricting imports in that way. Are there two different understandings of that point? I noted that earlier, the Minister spoke of restricting imports for this reason if the need existed.
Every regulation made under this Bill will have to be based on environmental grounds but that must not be used in an effort to block the importation of goods when that would not be the real reason if the project was open to scrutiny. I will comment on the suggestion that the provision in subsection 3 (h) for the controls on imports of a substance, material or thing is contrary to the EU law on the free movement of goods. The free movement of goods is a basic tenet of Community law, aimed at the creation between member states of a single market without internal trade barriers. Article 30 of the Treaty of Rome provides that quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states. However the principle of free movement of goods is not absolute and from the outset Article 36 of the treaty sets out a number of grounds on which exception to the free movement of goods may be justified.
In a 1985 ruling the European Court of Justice held that protection of the environment is "one of the Community's essential objectives", which may as such justify certain limitations on the principle of the free movement of goods. This view was confirmed in 1988 when the treaty was amended by the Single European Act, which expressly included objectives relating to the protection of the environment. Subsequently that year the court stated unequivocally that "the protection of the environment is a mandatory requirement which may limit the application of Article 30 of the treaty". In order to be lawful, therefore, a restrictive measure must be necessary to achieve the environmental objective pursued and must then satisfy the tests of proportionality and non-discrimination. That is to say, a given measure must represent the means which least restricts the free movement of goods and must apply equally to imported and domestic goods.
The position with regard to the rules of the World Trade Organisation and GATT is broadly similar. Article 20 of GATT provides that measures may be taken on broad environmental grounds subject to the requirement that they do not constitute a means of arbitrary or unjustifiable discrimination between countries or a disguised restriction on international trade. Reports of GATT panels — which are the closest GATT/WTO equivalent to judgments of the European Court of Justice — have confirmed the rights of members to restrict trade on environmental grounds, subject to conditions as to proportionality and non-discrimination.
This section is a wide-ranging enabling provision. There are no proposals at this time for any controls on imports of goods. However, one could envisage the provisions in question being utilised to prohibit or control the importation of a problematic product or substance either in the context of national measures or in order to give effect to a future EU requirement.
Who is to satisfy and who is to be satisfied that we do not go outside the bounds of that restriction?
In the first instance the Minister makes the regulations and anyone who does not like them may challenge them.
I am speaking about the import clause, as to products which can be restricted on environmental grounds.
Anyone who feels adversely affected by the law can challenge it.
That is an aggrieved party but who must be satisfied that the regulations are being complied with? Is it a court, the Council of Ministers, or the European Commission?
The Minister may make regulations.
When a challenge against them succeeds who has to be satisfied they are not in breach?
I presume the courts.
Under Irish or European law?
Irish law. The Minister would make the regulation based on the legislation and if the regulations are not in line the courts may deem them invalid. If there is a conflict between the law formulated here and European law, any individual has the right to go to the European courts.
For instance, if a Portuguese beer manufacturer wants to sell its product in Ireland and the Minister has decided the beer containers will be damaging because of the substance from which they are made——
——or the contents.
——whatever about the contents, and refuses to allow the product to be sold, where does the beer company go if it does not like that decision?
First, it is the Minister's job to ensure the laws are being adhered to and if he feels they are not, a regulation can be introduced. If the Portuguese company feels the regulation is invalid it can challenge it through the Irish courts.
The Irish rather than the European courts?
The Irish courts in the first instance.
I wish to ask a second question. I am interested in the Minister's response to my second amendment, which I did not dwell on at any great length. He said we were putting an imperative on the Minister to consult the agency, which would fundamentally alter the relationship between them. I ask him to elaborate on that point because I do not see that being the case? My amendment would ensure the Minister would not decide to ban a product off his own bat. If the Environmental Protection Agency is the agency set up by the Minister to advise him on environmental matters, he should at least seek their advice beforehand.
Any good Minister making a regulation would seek all advice. I assume that a Minister making a regulation on environmental protection would seek advice as it is good practice.
It would then be logical to state it explicitly.
It would conflict with the provisions of the 1992 Act in this regard in that it would force the Minister to do so. Any good Minister, if he thought the advice was required, would seek it but to insert a condition that he would have to do so would affect the relationship between the Minister and the agency. It would be inappropriate.
We are not worried about good Ministers. However, if a bad one arrives, should it not be explicitly stated in the Bill that he must take advice? The Minister and I are essentially making the same point. It will happen anyway so why not include it in the Bill? The amendment states ". . .having received the advice of the Agency". This can be an elaborate or simple procedure. For example, it could involve a telephone call to the agency and somebody there saying it is bad. If it were included in the Bill, it would ensure that an independent agency made a decision and a recommendation.
The point raised by Deputy Dempsey is not, unfortunately, hypothetical. Questions have been raised in the past, not in relation to a Minister for the Environment but another Minister, about decisions which were taken without advice. I will not go into detail because it could be quite embarrassing for some people here.
Acting Chairman
I will not allow the Deputy to do so anyway because it is not relevant.
It is not particularly relevant to this. However, it is a precedent which is sufficiently close to what we are discussing to necessitate a provision that consultation is required. It could blow up quite seriously in everybody's face if a decision was taken which was not preceded by sufficient consultation. I will not go into detail because the other matter is quite a painful episode for some people.
It goes without saying that any regulation introduced by a Minister involves wide consultation. It would be proscriptive on the Minister to force him to consult. If something is likely to blow up in people's faces, perhaps the agency would not want to be involved. It would leave it to the Minister to face it.
It prevents blow ups.
Amendment, by leave, withdrawn.
Amendment No. 134 not moved.
I move amendment No. 134a.
In page 34, subsection (3), between lines 43 and 44, to insert the following:
"(i) providing for appeal and review procedures in respect of any order made under this section,".
I ask the Minister to consider this amendment seriously. I remind him that under the terms of the Bill, the Minister of the day will be given relatively strong powers. This is correct and I have no quarrel with that point. However, we must make provision for the exercise of these powers and some type of appeals mechanism should be included in the Bill.
This should be done from the start to give protection in law to citizens or groups who have good reasons for being unable to comply with the requirements of the Bill. This would include at the outset an essential system of checks and balances which already exists in respect of planning laws and should be included in this legislation. A stringent law should be put in place with provision for appeals at the outset, rather than a limp law which would only be exercised at the discretion of a particular Minister at a particular time. An appeals mechanism should be put in place as an essential part of the Bill.
Review procedures should also be included in the Bill at this point. The people who must comply with the requirements of the Bill are entering unchartered waters. In a sense that applies to us all with the rapid emergence of new technology. It is important to make provision for review procedures in the Bill in addition to an appeals mechanism.
The amendment proposals that a new paragraph be added to section 28 (3), providing for appeal and reviews procedures in respect of any order made under this section. However, I cannot accept the amendment because I do not anticipate any need for such procedures.
Does the Minister envisage any situation whereby a company or citizen might find themselves in total conflict with the Minister? There would be no fall back point in law if that occurred.
Will the Minister comment on the possibility that, if an appeals mechanism is not put in place, cases could be taken on the grounds of natural justice? This would arise where people are not given an opportunity to appeal.
Any regulations made under common law may be challenged in the courts. This right is available to everybody. I do not anticipate any need for appeal and review procedures in relation to the provisions or regulations under this section. I am not aware of any precedent for such procedures. It is my intention to consult widely with regard to proposed regulations under sections 28 and 29 of the Bill and all other substantive regulations which may be made. Accordingly, I will have an opportunity to gauge the implications of proposed regulations and to take balanced and informed decisions regarding measures to be introduced.
In the event that practical experience with the implementation of regulations indicated some deficiency in the provisions concerned, these could be speedly amended in the normal manner. Any regulations which appear to impinge on anybody's rights and are contrary to common law may be appealed through the courts system. There will be widespread consultation and people's views will be taken into consideration before the regulations are made.
It is a pity if there is no outlet other than the courts in this type of new law. Litigation is expensive by any standard. It is a fundamental weakness of the Bill that some type of appeals mechanism is not included which relates to the overall implementation of the Bill and its procedures. I will withdraw the amendment but I reserve my right to re-enter it on Report Stage. I will put some more thought into the matter because it is essential that something of this nature is included in the Bill. I will withdraw the amendment on condition that I may re-enter it on Report Stage.
The Minister said any citizen may take a case if he or she disagrees with a regulation. How difficult is it to do so? Which court is involved? Most people are aware of the cost of taking court cases.
If somebody feels the regulations are unfair, discriminatory or prejudicial to their interests, they can initiate proceedings in any court. There can also be free informal procedures of debate on it through the Office of the Ombudsman if necessary.
That is new information and it must be formalised.
If the Minister is not to allow people to appeal, it is important that they know their rights.
The 1994 report of the Ombudsman addresses this area in detail. Having gone through that process, the matter can be taken up in court on the grounds that the regulation is discriminatory, prejudicial or unfair.
More money for the lawyers.
The essential point is that this is specifically in relation to a decision the Minister makes about a ban. In an individual case the Minister could be sued.
We are not talking about individuals here. We are talking mainly about big companies and multinationals which will have the resources, knowledge and ability to professionally examine these regulations.
We are talking about small firms.
There are provisions available to small companies and individuals. I have outlined them.
Could the Minister be sued under this legislation?
Amendment, by leave, withdrawn.
I move amendment No. 135:
In page 35, subsection (3), between lines 2 and 3, to insert the following:
"(j) requiring products to be designed, manufactured or constructed in a specified manner or in accordance with such standards as may be prescribed in accordance with regulations under paragraph (k),
(k) enabling a specified person or persons to prescribe standards for the purposes of regulations under paragraph (j),".
Subsection (3) provides for making regulations to promote waste prevention and minimisation. Amendment No. 135 would enable regulations to be made requiring products to be designed, manufactured or constructed in a specified manner or to prescribe standards and enabling a specified person to be designated to prescribe such standards. This amendment responds to views expressed in submissions to the committee urging more extensive measures in order to bring the issues of waste prevention and minimisation into focus in the design stage of products and manufacturing processes. The amendment would complement other provisions relating to the design, composition and production of packaging for the purpose of promoting waste prevention and minimisation. For example, paragraph (i) refers to product design and manufacture for the purpose of waste recovery.
This amendment meets some of the aspirations I expressed in the context of previous amendments which were rejected. I was not told at the time that this was why they were rejected but I understand now.
Amendment agreed to.
Acting Chairman
Amendments Nos. 136, 137, 148 and 149 are related and will be taken together by agreement.
I move amendment No. 136:
In page 35, subsection (3), between lines 2 and 3, to insert the following:
"(I) requiring a producer to prepare and publish, at a specified frequency and in a specified manner——
(i) a plan specifying the steps proposed to be taken by him or her to prevent or minimise the production of waste from any activity of production carried on by him or her or from a product manufactured by him or her, or any component of, or packaging related to, such a product, and
(ii) a report on the steps taken by him or her in pursuance of such a plan and the results of those steps,".
These four amendments serve to strengthen the provisions of sections 28 and 29 which can be used to require the publication by a waste producer of waste management reports and information. Amendments Nos. 136 and 148 propose the addition of possible stand alone requirements on producers to publish information on their plans to achieve waste prevention and minimisation or improved waste recovery. The purpose of amendment No. 136 is to empower the Minister under subsection 28 (3) to require a producer to publish a plan specifying steps proposed to be taken to prevent or minimise the production of waste from a relevant activity or product or from a component or packaging relating to such product or a report on the implementation and outcome of that plan.
Amendment No. 148 relates to section 29 (4) and is equivalent to amendment No. 136. The requirement applies to a plan to be published by producers or distributors specifying steps proposed to be taken by them to promote, support or facilitate, the recovery of any product or substance made, distributed or sold by them or other component or packaging relating to such product or substance and a report on the implementation and outcome of that plan. Requirements of this nature would serve to focus the attention of producers and distributors on the issues of waste prevention as well as minimisation and recovery, would facilitate greater public awareness of the environmental performance of companies and would help to make informed consumers make informed choices in purchasing goods and services.
The remaining two amendments, Nos. 137 and 149, are complementary and propose to amend existing provisions in section 28 (3) (j) and section 29 (4) (v) on a similar basis. Section 28 (3) (j) and section 29 (4) (v) provide for the publication by a person who is already subject to a requirement imposed by regulations under the respective section of a report on the measures take to comply with that requirement. The proposed amendments Nos. 137 and 149 would extend the scope of these obligations so that regulations under either section may also require the publication of a plan specifying the steps to be taken by the person concerned to comply with the relevant requirement.
I welcome this amendment. It strengthens the Bill and is fairly detailed.
It strengthens the Bill. The legislation may well be unused unless there is a plan to change the "may" to "shall" in the minds of the Minister, the Government and the Department. On frequency of preparation and publication, will there be a more detailed outline of what that might involve? Anybody reading that could either be comforted at the thought that it could be very infrequent or alternatively fear the frequency. Will there be a regulation to follow this and if so, will it be one of the priority regulations?
I welcome this provision. It is a good amendment which strengthens the legislation. Will it cover retailers as well? One gets many complaints about retailers and fast food operators producing waste.
The existence of this legislation will raise the public awareness of waste management and prevention. The regulations are already specified in the legislation. The Minister has the flexibility to make further regulations if he wishes. A Minister is as strong as his will and commitment.
Amendment agreed to.
I move amendment No. 137:
In page 35, lines 3 to 8, to delete paragraph (j) and substitute the following:
"(j) requiring the preparation and publication, at a specified frequency and in a specified manner, by a person who is the subject of any specified requirement of regulations under this section (other than a requirement imposed by regulations under paragraph (l)) of—
(i) a plan specifying the steps to be taken by him or her to comply with such a requirement, and
(ii) a report on the steps taken by him or her to comply with such a requirement and the results of those steps,".
Amendment agreed to.
Amendment No. 138 has already been discussed with amendment No. 129.
I move amendment No. 138:
In page 35, subsection (5), line 26, after "contravenes" to insert "subsection (2) (b) or".
Amendment put and agreed to.
I move amendment No. 139:
In page 35, lines 28 to 32, to delete subsection (6).
The Minister of State was not present yesterday or this morning so he may not be aware that we have had an ongoing discussion with the Minister about the parliamentary draftsman. At present the Bill states: "In a prosecution for a contravention of regulations under this section . . .it shall be a good defence to prove that the accused took all reasonable steps to achieve the said target". If all reasonable steps were taken to achieve the targets they would be achieved. Deputy Sargent may put the point more strongly but no Minister would make unreasonable regulations in relation to any aspects of this Bill.
I do not see any need to tell a judge what he or she can or cannot take into account in relation to cases taken in this context. We have enough clever lawyers to be able to make up defences without providing one for them in the Bill. I suggest the section should be deleted. Let them fight their cases on the merits of what they have or have not done.
I agree with Deputy Dempsey to the extent that it is strange to give the Judiciary pointers as to how they might let somebody off the hook which seems to be the import of this section. It also puts the Bill in a poor light if we are to say we have thought out regulations, consulted widely but, when all is said and done, they are not attainable. That is the implication of this section. If the targets are not met it is not the end of the world; somebody can simply say: "I did my best and I am terribly sorry but I could not come up to the standard". If that is the case, we are setting unrealistic standards and we should be in showbusiness, not the business of legislation. We are creating a fantasy land and that is not our function.
Although the Minister resisted the amendments to consult the agency, he gave an undertaking that there would be widespread consultation. I do not know whom he intends to consult but if it is people who will give him outlandish standards and targets that cannot be met, he should review the matter.
I also ask that this section be deleted. If it is to be retained it could undermine everything the Bill stands for. We should set achievable and reasonable targets and we should review them periodically to ensure they continue to be reasonable and attainable. Having done so we should not leave this "out" clause whereby lawyers could occupy themselves forever deciding what constitutes "reasonable steps" and make more money doing so. It is a loose impractical provision which would undermine the objectives of the Bill.
I am amazed this provision is in the Bill because it undermines many of the regulations. I could see people in the Four Courts having a field day with it.
It would be even better than "living apart" or "irretrievable breakdown". This would be the "irretrievable breakdown" of the Bill.
This amendment proposes to remove subsection (6) which provides that in a prosecution for failure to achieve a target specified in regulations under the section it shall be a good defence to show that all reasonable steps were taken to achieve the said target. I cannot accept the amendment, on the basis of legal advice. It may well that compliance with a target is not solely in the hands of the person concerned and that the actions of others may influence the extent to which a target can be met.
It would be wrong, therefore, to hold a person liable for failure to meet his specified waste reduction target if, for example, industrial relations problems prevented essential changes in production processes or genuine problems arose in sourcing alternative raw materials, resulting in target implementation dates not being met. A similar situation could arise in relation to a requirement under section 29 to operate a deposit and refund scheme to meet specified targets for the return of products. In such as situation the producer is dependent on the actions of others, consumers in the case of returns, in order to return the goods to enable him or her to meet the targets.
I am advised it would not be legally possible to hold a person liable in all instances for achieving a prescribed performance target if that person does not have total control over its attainment. If there were no good defence provision available on the basis of having taken all reasonable steps the powers to set targets under under sections 28 and 29 would have to be deleted. It would be a matter for the courts to decide on a case by case basis as to the reasonableness of efforts to comply with target requirements. As we know good defence clauses are common in modern environmental legislation and there are various precedents in the water and air pollution Acts.
The Minister has taken sound legal advice; obviously, the course to take is to delete the section and let people argue all these points in a court of law, and let the judge decide whether the targets should have been met. As Deputy Sargent says, if somebody agrees targets and fails to meet them they should be prosecuted. They should put their case to the courts and it should be decided there on an individual basis. The Minister's legal advice indicates that even the person who gave the advice has already come up with four or five reasons for somebody failing to meet a target. I am sure any judge worth his salt would listen to those and decide it is not reasonable to prosecute and fine the person for failure to meet targets. The Minister makes my case for me.
The Minister should reflect on what he said. The courts will deal with this on a case by case basis and the Judiciary is charged with the responsibility to weigh up all sides of an argument. I imagine a judge would take into account extraneous circumstances—that is what judges are trained to do. Does the Minister feel that by including this as a section in legislation he may find the section framed and hung in the offices of the most notorious "loophole merchants" who may see it as an answer to all their prayers? Whatever about the waste paper created in the publication of the legislation, this would provide them with some comfort in that as long as they can argue reasonable steps, they would be able to circumvent, to a great extent, the targets set. We should not give ammunition to people who set about circumventing the legislation. It is bad enough that they go to court, and have the money to hire the best of legal expertise to get them the lightest possible conviction or even an acquittal, but to begin by providing legislation that helps them to get an acquittal appears to me to be back pedalling rather than going forward.
It would be totally improper to proceed with legislation against good legal advice, and it would be very quickly brought to our attention in the Dáil if the legislation being introduced was legally or constitutionally defective. What we have here is something that is in the Air Pollution Act, 1987 and in water pollution legislation. The target objectives provide a good defence and I cannot see what revolutionary changes in attitude will take place among those who are trying to evade good practise in industry. I do not see anything new in it.
There is something new in it.
It would not be legally possible to hold a person liable in all instances with regard to achieving a prescribed performance target.
After much consultation with manufacturers or others, targets are agreed for minimisation or reduction of waste. The manufacturer can then take whatever steps he can to try to achieve them. However, if he is a cowboy operator he does not bother. He takes some small action, says he has take the required steps and then gets off with this good defence.
While I would not wish to see industrial disputes or other negative consequences arise, we are trying to protect the responsible producer who sets targets but discovers they are not achievable, for any of the good reasons outlined by the Minister. All he has to do is to advise the responsible authority, agency and so on that he will not be able to achieve the targets for reasons outlined. The targets can then be reset for that individual and there is nothing to prevent this.
Given the way the section is worded, it will probably facilitate such responsible people, but it will also faciliate the cowboys. We will, therefore, have to press this. I ask the Minister to at least go back to his legal advisers and suggest the targets be agreed by negotiation, and that a person failing, or likely to fail to reach those targets can have them reset, without him having to be automatically prosecuted. Leaving this provision stand will allow the cowboys away. That is not the intention, and I am sure it is not the Minister's intention.
There is one problem in this. One cannot make a law and then differentiate between one individual and another because of specific circumstances, nor can one differentiate between one company and another. For example, if two companies undertake the same process and if one, because of technical or other reasons can achieve its targets and comply with the law, and the other, which could be a rival company, cannot achieve the same targets because of internal difficulties, then the situation cannot arise where the law can be applied to one and not the other.
We cannot proceed with legislation against legal advice, and the legal advice here is that this is the situation. In the interests of harmony and progress, we will look at this matter again. I have listened to the arguments put forward and will consider them and deal with the matter again on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 139a not moved.
Section 28, as amended, agreed to.
SECTION 29.
Acting Chairman
Amendment No. 139b. is out of order as it involves a potential charge on the Revenue.
Amendments Nos. 139b., 139c., 140, 141 and 141a. not moved.
I move amendment No. 142:
In page 36, subsection (4) (f), line 46, to delete "made, distributed or sold by him or her" and substitute the following:
"of a type or brand made, distributed or sold by him or her, or any component of, or packaging related to, such product or substance".
The purpose of amending paragraph (f) is to make it more consistent with that of paragraph (h). This more comprehensive form of words is the same as that in paragraph (h) of this subsection, providing for regulations governing compulsory take-back schemes. Given the more explicit reference to components and packaging in paragraph (h), the wording in paragraph (f) could be open to the interpretation that it deliberately does not apply to "components and packaging". This is certainly not the intent of this provision. For example packaging, such as bottles and cans, would be an obvious target of a deposit and refund scheme. The amendment will put the matter beyond doubt.
I am not sure in what sense the Minister used the word "target". The Minister talked about certain activities being a target of this provision. The word "target" has a number of different meanings. Is the Minister saying there will be targets for the percentage of compliance in the same way as there are targets under the packaging directive whereby this country has a target of certain percentages, low as they may be? Is the type of activity covered by this provision and the amendment to be the subject of similar minimum recovery and recycling percentage rate targets or was the Minister using the word "target" in that context?
The word "target" does not apply in this section at all.
The Minister used it in his explanation.
That was a descriptive term. If the Deputy wishes me to read into the record what exactly we are about I will do so.
I understand what the Minister is doing.
Targets are not in the provision but they could be set by regulation.
Amendment agreed to.
Acting Chairman
Amendments Nos. 143 and 143a are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 143:
In page 37, subsection (4) (h) lines 12 and 13, after "conducted" to insert "and where the Minister is satisfied that no adequate recovery of recycling facility exists".
This proposal would provide scope for introducing a take back or recycling scheme for this category of packaging. The amendment states that because it is not stated in the Bill.
I support the amendment. It provides a degree of flexibility in respect of product that might be recycled under circumstances where, perhaps, a supermarket owner would deal with packaging made of material that was already recycled. The amendment makes provision for such an eventuality. It is important that this amendment is accepted.
It is important that every opportunity be taken to not just talk about recovery or recycling but to understand the integrated nature of waste management. Recycling of recovered material or recovery of recycled material ought not to be exclusive.
This amendment proposes that regulations under section 29 (4) (h), which requires the operation of take back arrangements by retailers and others, and regulations under section 29 (4) (j), which imposes mandatory charges for supermarket bags and other such packaging, could only be made if the Minister is satisfied that no adequate recovery facilities already exist.
I cannot accept the amendment. It would undermine the basic feature of the section if the scope to impose take back obligations were limited on the basis proposed by the amendment. It would be grossly inequitable if, for example, a take back requirement could not be imposed on some companies due to the fact that other companies had arranged for the provision of waste revovery provisions or waste recovery facilities. Companies participating in a voluntary industry led scheme can be exempted from any other requirement imposed by regulations under this section.
There is not necessarily any link between the availability or otherwise of waste recover facilities and the possible imposition of mandatory charges for supermarket bags and similar packaging. The purpose of charges for supermarket bags and similar packaging would be to discourage the use of one trip disposable bags which, apart from other considerations, seem to constitute a considerable element of our litter problem. It would mean the discouragement of the use of those bags in favour of reusable bags such as those already on sale in some supermarkets. This is a matter of minimising packaging waste and promoting the reuse of packaging and is not related to the availability of waste recovery facilities as such. On those grounds I ask the Deputy to withdraw the amendment.
The Minister has hit on one of the reasons a number of us wanted the terms of the Title extended. It is important not to distinguish between waste and materials—it is simply a matter of perception. If we were used to thinking about waste as a secondary resource we would not have to bother with distinguishing between definitions.
Acting Chairman
That was dealt with extensively at the start of our deliberations.
This is where the problem arises.
The intent of this amendment — I accept that it might not be properly phrased and I understand the Minister's interpretation of it — is to encourage as much recycling and recovery as possible at supermarkets and elsewhere. According to the Minister's intepretation it appears that the amendment could have the opposite effect to what is intended. I do not wish to burden Report Stage but it might be worthwhile inserting a provision to specify that if we can secure voluntary agreement on this matter there should be some provision to allow for that here or a recognition of the fact that people are willing to have such schemes. I accept the Minister's contention that the intent of the amendment is not clear legally. However, we should not throw out the baby with the bathwater.
We encountered an interesting statistic before this meeting. We all talk about the plastic bags and the amount of rubbish they cause. They are unsightly because they tend to blow around but they still only constitute 1 per cent of deposits at landfill sites. Newspapers account for 12 per cent.
I am glad Deputy Dempsey accepts that the wording of the amendment prevents it achieving its objective. If he wishes to——
Recycle it?
If he wishes to submit an amendment on Report Stage it will be examined again.
Amendment, by leave, withdrawn.
Amendment No. 143a not moved.
Amendments Nos. 144 and 144a are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 144:
In page 37, subsection (4) (1), line 39, after "components" to insert "in amounts that are independently accounted for".
We are talking here about recycling. We are all very familiar with the practice of putting such phrases as "environmentally friendly" or "green" on product labels. It is now very popular to be green. If claims are made that the materials used are recyclable, for instance, our amendment proposes that these claims should be independently verified. We do not propose that the Minister should have to verify it; there are plenty of organisations which could do so. It is difficult, I know, in some cases to independently verify such claims but if this section is to have any meaning at all we should have some means of checking that the claims made by producers have some basis in fact.
My amendment is similar. The Minister will be mildly amused when reading my amendment. I stated that the Minister "may" introduce regulations. If I were to put it down again, I would propose that the Minister "shall" introduce regulations.
We all have experience of exaggerated claims, which cannot be scientifically sustained, being made for certain products. These claims undermine the whole purpose of what we are setting out to do in this Bill and no producer should make a claim that cannot be sustained. For that reason we are asking that some kind of verification procedure be put on place to ensure that claims that would give producers a competitive and economic advantage stand up in law and in fact. It is a very sensible thing to talk about at this juncture. I have not been lucky with any of my amendments but I ask the Minister to give this one serious consideration.
I support the thrust of the amendments put down by Deputies Dempsey and Quill and their arguments. An independent verification procedure should be inserted and would not detract from the Bill. It would add a lot to it and give greater certainty in relation to claims that people make in relation to various recoverable materials and components in the production of the product or substance. The argument is well made and I hope the Minister can see some way to take the thrust of the amendment on board, even if its drafting does not satisfy the parliamentary draftsman. If that is the case, it could be improved on Report Stage.
I support this amendment. There is a lot of goodwill among the public for more environmentally friendly products and it is often abused. It is very important that there is a quality control mechanism in the Bill. We see claims such as "all natural" on food packaging. What does "all natural" mean? It is nonsense to put that phrase on a packet. It means nothing. People buy this food because they think they are buying something better but it really does not stand up to examination. It is important not to abuse that goodwill.
I hope the Minister will be amenable to accepting this amenment, given the educational aspects involved. Will trade description legislation cover this in future? It should be covered by that type of legislation but in the meantime there will be an exchange or transfer of materials from one Department to another and there should be specific reference in the Bill to where authentic claims are undermined by careless, malicious or dishonest claims. That is not covered in trade description legislation, to judge from the examples of being more honoured in the breach than the observance.
Amendments No. 144 and 144a propose that where regulations under section 29 (4) (t) (i) require producers to use recovered or recoverable material in a product or to use a specified level of virgin material, the level of such usage should be specified and verifiable. These amendments are not necessary because the Bill already contains adequate powers in relation to making regulations to fulfil this purpose. Section 29 (4) (u) requires a person to keep specified documents, records or other particulars and to furnish specified information to specified persons in relation to the steps taken by him or her to comply with a specified requirement of regulations under this section and enabling a specified person to verify the accuracy of any matter stated or recorded pursuant to a requirement of regulations under this paragraph.
Mr. Ryan
If I go into a shop and I see something which claims to be 100 per cent recycled and I do not believe it is, where do I go to find out?
The verifiable agency would be specified in the regulations. The National Standards Authority of Ireland is one, for example. If there is genuine concern about this, we can discuss it again on Report Stage
Acting Chairman
Is the amendment being withdrawn?
It is important that people feel that if something is being claimed, they can go somewhere to verify it.
I reserve the right to reenter. I realise a number of provisions are already in place but they do not meet the requirements in my amendment.
Amendment, by leave, withdrawn.
Amendment No. 144a not moved.
Acting Chairman
I thank the Minister and Deputies for their contribution. The next meeting will be at 10.30 a.m. tomorrow at which the committee will discuss the work programme.
The Select Committee adjourned at 4 p.m. until 10.30 a.m. on Friday, 20 October 1995.