I welcome the opportunity to join the committee for Committee Stage of the Thirty-fifth Amendment of the Constitution Bill (Water in Public Ownership) (No. 2) Bill 2016. I acknowledge the work of Deputy Joan Collins in bringing it forward and the active engagement to date of other Members of these Houses. I have not received the Deputy's recent letter and I agreed to meet with her but the meeting was not requested. I agreed to appear before the committee but that meeting was postponed. For my part, I am not trying to avoid debating or discussing the merits of this proposed amendment to the Constitution but in dealing with the sections of the Bill I want to advise the committee on the Government's position.
The Bill has two sections and the wording of the proposed amendment is set out in two parts that are contained within the Schedule. I would like to speak directly to the provisions of the Bill as appropriate on Committee Stage. I have written to the committee to provide my views on the Bill and the wording of the amendment. Much of what I have to say reiterates points in my letter. It is important, however, to record these matters in the Official Report. There is a great deal of detail involved and I ask the committee to bear with me.
My predecessor in this Department, the present Minister for Foreign Affairs and Trade, Deputy Coveney, attended the pre-legislative scrutiny of the Bill last May. He observed that during the Second Stage debate there was a common view on all sides of the House that the State should own the vital public service that is water. Deputy Joan Collins observed at that time that the public at large holds this view. I share both perspectives.
I reiterate that I remain strongly committed to working with the committee to advance an appropriate constitutional amendment. Such an amendment must be capable of achieving the policy aim, which is to provide an insurance against the transfer into private ownership of a national water services authority. This would be in keeping with the recommendation of the report of the Oireachtas Joint Committee on the Future Funding of Domestic Water Services, which both Houses have adopted. I support this recommendation.
The Bill, however, raises several significant concerns which require attention and it should not therefore be adopted in its current form. I am also of the view that any amendment of the Bill would require proper legal scrutiny. No amendments have been tabled but I hope there is scope to amend the Bill further on Committee Stage. I therefore ask the committee not to vote to approve the sections of the Bill as currently cast. I am happy to work further with the committee and directly with the Bill's sponsors.
I acknowledge and respect that there are different views of the Bill and its potential impacts. Some of these were heard during the scrutiny hearings and the previous debates. I set out my views as Minister having engaged extensively with the Attorney General on the many questions arising from the Bill, having given careful consideration to its potential policy implications, having reviewed a report of the OLPA submitted on 14 December 2017 that I received as an ex officio member of the committee and having reviewed the committee's own report on its scrutiny of the Bill. In my recent letter I set out the issues and concerns which I believe fall to be considered by the sponsors of the Bill, ideally in collaboration with the committee and with me.
The Bill seeks to insert a new provision into the Constitution under Article 28. This provision would effectively mean that the Government would be "collectively responsible for the protection, management and maintenance of the public water system." The Government would be bound to ensure "in the public interest that this resource remains in public ownership and management." As Minister, I accept that it may not be possible to achieve certainty of outcome whatever the wording of a constitutional amendment. We have to ensure, however, that the wording proposed for insertion achieves as high a degree of clarity as possible and is robust. I do not think this is the case at present. The proposed amendment can be read and argued in different ways, which makes for uncertainty and unpredictability. There are significant risks in the wording of the Bill in so far as the meanings of the key terms such as "protection","management", "maintenance", "public water system" and "ownership" are not clearly defined and may not lend themselves to precise definition within the Constitution. These key terms in the Bill are not self-evident and can be interpreted in different ways. This raises questions and concerns about the impact of the amendment on how water services are operated and delivered in this jurisdiction. It also creates the potential for unforeseen consequences or unintended implications which can arise when the amendment falls to be interpreted by the courts.
In respect of the impact on the existing arrangement for the provision of water services, the wording leaves the following matters open to question: public water system, it is not clear what falls within the public water system and for instance whether it includes infrastructure, ancillary services such as water quality services or how it applies to public waters on private lands. The question arises of whether provision could prevent the use of private facilities by the public water system or, alternatively, the use of public facilities in water services arrangements that have private elements. In many instances there are hybrid schemes in place. These group water schemes involve an intermingling of private water initiatives, which serve significant numbers of the public and public entities. In some instances the water is supplied by Irish Water or the scheme is supported by State funding or both. It is not clear how this amendment would apply to or affect these arrangements, a concern that has been raised separately by the National Federation of Group Water Schemes.
It is not clear from the amendment what might be meant by the term "maintenance" and what implications might arise from the possible elevation of this responsibility to the level of a solemn constitutional duty. As policy makers, we need to have an understanding of how the term "maintenance" might be interpreted and the costs that might arise for citizens in the raising of public revenues by placing such an obligation on the Government through the Constitution. There is the risk that it would make the provision constitutionally justiciable. For example, we do not know how the courts might deal with cases where there were routine disruptions of the water supply. Questions arise about whether such instances might be constitutionally justiciable and what the implications of public policy might be for the Exchequer.
The amendment, as framed, might give rise to a question about the extent to which it might permit a role for local authorities in the delivery of public water services. I would not want to see a situation where the Bill could create ambiguity or any problem concerning the role of local authorities in that regard. Likewise, the question arises as to what tests would be applied in seeking to establish how a national water services body such as Irish Water might be considered to be in public ownership. It is important that the amendment not prevent the sale or disposal of obsolete assets or assets that will be decommissioned in the future.
The Bill would make the Government directly and collectively responsible for the management of the public water system. Based on the wording, it is unclear whether and to what extent the Government could delegate its responsibility for the management of the public water system to third parties. There is a question about the extent to which the Government might be obliged to monitor, oversee and/or directly manage the provision of water services. For instance, it might be argued that the amendment would restrict the scope of legislation to allow for another entity to perform these functions and/or require the Government to manage the activities of Irish Water, possibly even in routine operational matters. At a minimum, it would seem to give rise to some uncertainty in practice. As policy makers, it behoves us to clarify our intentions in framing a constitutional amendment and represent them clearly in legislation, not just in debate. It is the text of the Bill that the courts would use in making an interpretation, rather than what might or might not have been our intentions, as legislators.
It is not exactly clear what is meant by the term "protection". Given that it is a constitutional amendment, it seems likely that the courts would strive to give meaning to the term. There is a risk that it could be read in an expansive way, placing a constitutional duty on the Government in the provision of water services.
Cumulatively, the references to public ownership and maintenance and management by the Government might throw into question the capacity of Irish Water or a water services authority to enter into or conclude public private partnerships and design, build and operate contracts. It could also be argued that the use by Irish Water or a water services authority of contractors would be restricted in respect of activities involving aspects of the management or maintenance of the public water system. As matters stand, contractors are engaged in a variety of arrangements to enable delivery to meet certain aspects of statutory obligations attached to the provision of water and wastewater services. I understand the necessity or desirability of using such contractual arrangements in the provision of water services is not universally accepted and can be the subject of policy debate, but my concern is that these practices might no longer be feasible as options in the delivery of water and wastewater services, which could have the effect of undermining existing planned and future arrangements in managing and delivering water and wastewater infrastructure and services.
In the absence of a clearly codified understanding of what is meant by the various terms used in the Bill, it would fall to the courts to give an interpretation. It is the uncertainty surrounding what such an interpretation might be that raises potentially significant problems. There is a risk that many of the questions and concerns I have outlined would be litigated in the courts. In a constitutional context, the courts would strive to give meaning to any ill-defined term and there is a risk that the provision could be read in different ways. While there would be arguments and counter-arguments for any particular proposition, there can be no certainty as to how the provision would be interpreted by the courts.
The amendment might have the effect of positively requiring the Government to make provision to extend the public water system to areas not covered by the system or, at least, to provide some resources to ensure they would have access to a water service directly comparable to the public system. While the amendment does not require this directly, the fact that the Government would be responsible for managing "in the public interest" a public water system might lead to demands from persons not connected to the system. The constitutional recognition and protection given to the public water system might reinforce this. It is difficult to be certain how a court might deal with such an argument.
In other contexts, the courts have been reluctant to interfere with legislative choice or Executive discretion in the allocation of resources. In this case, the amendment is discrete, specific and novel in nature. Therefore, how it would be interpreted in practice by the courts cannot be predicted with certainty. I accept that it might be argued by some that placing a constitutional obligation on the Government in respect of rights in this area was desirable from a policy point of view. The risk, however, is that any such implied right would have to be balanced against other rights and decisions on future policy priorities the Government and the Oireachtas might wish to make. For example, they might be restricted in their scope to make decisions on practical policy matters in the provision of water services. This could impact on the allocation of State resources, including the provision of infrastructure and services in other policy areas. It would be surprising if elevating the new provision to the level of a formal constitutional duty had no impact on the current system. The risk is that we do not know and cannot predict what the impact would be. As a member of the Government and a legislator, I find this problematic to the point where I consider it necessary to look at alternative approaches.
I will address the location of the proposed amendment when we reach the relevant Part.
Having considered the advice of the Attorney General and that of the Office of the Parliamentary Legal Adviser received by the committee, my reservations about particular aspects of the Bill are well founded. I stress that I do not doubt the intent or sincerity of those Deputies who have sponsored the Bill and that these observations do not in any way detract from my commitment to work with the committee to advance an appropriate constitutional amendment capable of ensuring water services will continue in public ownership in keeping with the recommendation of the Oireachtas joint committee in April 2017 which was approved by both Houses. If the intent of the constitutional protection is to ensure the national water services authority cannot be privatised, it seems more appropriate that the focus should be on the entity supplying the service. Therefore, there is scope to work on developing a model that will seek to ensure the entity responsible for the provision of water services will not be placed in private ownership. It seems such an approach would be less likely to give rise to the difficult questions and concerns I have outlined. To this end, my Department and I propose to engage further with the Office of the Attorney General. The legal advice received is clear in raising issues with the Bill that need to be addressed on Committee Stage and I ask the committee to have regard to that advice. I also urge it to defer consideration of this matter pending further engagement by my Department and I with the Attorney General on a more robust wording. I reiterate that I am willing to collaborate closely with the committee in this work.