Environmental Protection Agency, Bill, 1990: Committee Stage (Resumed).

Debate resumed on amendment No. 35:
In page 12, between lines 36 and 37, to insert the following subsection:
"(4) Where a motion is laid before either House of the Oireachtas proposing to annul any regulation made under the Act and is signed by not less than seven members of that House, the regulation shall stand annulled after the elapse of 10 sitting days unless that House has voted to approve the regulation.".
—(Deputy J. Mitchell.)

Amendment No. 35 relates to the making of regulations and the need for this House where seven Members so request within ten sitting days, to approve the order making the regulations, before they can take effect. The manner in which regulations are made and the need for Oireachtas reform, particularly reform in the way we do our business in this House, is a matter for wider reform of the Oireachtas. We cannot do it in the context of this Bill. If, as the case will be next summer, we are endeavouring, having established the Environmental Protection Agency, to have devolved on them a number of powers by way of regulation, it would be very difficult if we had to wait for the return of the Dáil in the autumn in order to be able to approve the regulations before they could take effect. Given the complexities of the matters covered in this Bill and the fact that it will fundamentally reorganise the way we deal with environmental protection, it is impossible to put every detail into the legislation.

This is a Bill to enable certain things to happen. Regulations will be made in relation to many administrative and housekeeping matters. They will be mere formalities as far as the House is concerned. As I said already, where formalities are concerned, we very often agree to them without any difficulty or debate, as we did yesterday morning in relation to four matters and as we did on Tuesday afternoon in relation to another matter. This would be the case in the vask bulk of regulations to be made under the Bill when it is enacted. However, it is important that a Minister does not have the power to make changes in the fundamentals of the Bill — the manner in which the director general and the directors are appointed, changes to the First and Second Schedules or other substantive matters. The Minister would have to get affirmative approval from the Houses of the Oireachtas before regulations in relation to changes of substantive matters could take effect. I believe that is a satisfactory arrangement. However, how we deal with the legislative process is a much wider issue. My experience in general tells me that there is a better way to conduct business and I hope the parties in this House will be in a position, sooner rather than later, to initiate and then implement the kinds of reforms that will make the job of legislators far more meaningful. There may then be a different way to deal with regulations and matters of this kind.

Deputy Mitchell made some good suggestions in relation to a more effective committee system which would be involved in the legislative process in a meaningful way. Yesterday I said I had considered referring this Bill to a special committee of this House but when I considered the long passage of both the Child Care Bill and the Companies Bill by way of special committee, I quite honestly felt, given the way the committee system works at present, that this would lead to undue delay. We have had already a long delay from the time the legislation was first mooted to the Committee Stage in this House.

In all the circumstances, I cannot accept this amendment. I said also that I believe there is nothing special about seven Members — perhaps because of the position I am in — I am sure that Deputy Gilmore and Deputy Garland would say that six people can achieve a great deal, indeed one person can often achieve a great deal. I do not see the need to keep the number at the figure that constitues a group for the purposes of business of this House. Reluctantly, I am not in a position to accept the amendment. I believe it would lead to undue delay and would completely tie the hands of any Minister. It would also mean that when enacting primary legislation and setting up a completely new body every tiny housekeeping matter would have to go into the primary legislation or you would have to wait for approval from the Houses of the Oireachtas before regulations could take effect.

No, that is not the case.

The Deputy's amendment refers to within "10 sitting days".

Mr. Mitchell

Without questioning anything done beforehand. The Minister is certainly not in full command of her brief if that is what she is saying.

If the Deputy is trying to say that within ten sitting days of the Oireachtas meeting after the regulations had taken effect they could then be annulled, I do not think that is satisfactory.

That is what the Minister is saying at present.

The Chair is experienced enough to know that often this kind of tete-à-tete develops, into an argy-bargy. If the Deputies address the Chair in a peaceful way everybody will get an opportunity of speaking.

The Deputy will have something to say about this, a Leas-Cheann Comhairle.

We have approached the implementation of this Bill in a fair way. Should many of the regulations need to be changed, or sections changed by regulation, this can only be done after the regulations have been approved by this House. This will apply to the more fundamental and substantive measures that are important, such as the appointment of the Director General or directors or changes in the First Schedule which would give the agency either more or fewer activities to licence and changes in the Second Schedule. I believe we have struck a fair balance in the way we will implement his Bill.

The arrangements for making regulations are most unsatisfactory. The Minister is quoted in a daily newspaper this morning as censuring me for daring to suggest that local authorities do not need new regulations to monitor emissions from incinerators under the Air Pollution Act, 1987. The Minister had better get her act together because the local authorities are under the impression that they cannot monitor incinerators under the 1987 Act and they are not doing so. It is unworthy of the Minister to stand up and chastise Members for suggesting that and to say that we are not in full command of our brief. While legislation is being passed by this House, the necessary regulations are not being made subsequently and as a result the legislation is relatively meaningless. I would like the Minister to clarify the question of the control of emissions under the 1987 Air Pollution Act.

In the case of the Environmental Protection Agency Bill, the Minister will be relying heavily on subsequent regulations. The Minister had better clarify the powers and obligation that local authorities have. She could do that in this House or by communicating directly with the local authorities setting out their powers, obligations and responsibilities to monitor air pollution emission from incinerators.

Hospital incinerators are lethal because in practice they are not subject to any monitoring except by those who operate them. By way of illustration, I will cite the Southern Health Board. Only last Monday week the Southern Health Board admitted that the incinerator operating in the Cork Regional Hospital does not have the capacity to deal with the volume of waste it is incinerating. Disposable plastic syringes, Petra dishes, blood and saline bags are being fed to an incinerator that is not opeating efficiently and the emissions are being spewed out into the atmosphere in a residential area. We were told that the incinerator is burning at 800ºC but there is no control or analysis of emissions. The health board technical officer tried to say that one cannot monitor emissions from a hospital incinerator because of the high temperatures involved. That is total rubbish, in the true sense of the word. He asserted that one cannot monitor the gas emissions from the flue because of the high temperatures. We have to get our act together. The incinerators are a cause of controversy not only in Cork but in Dublin and we need to tighten up the regulations in regard to them. Instead of censuring me, the Minister should get her act together and ensure that the local authorities monitor these incinerators, if they do not have the power to do so, they should be so empowered under regulations.

Have the local authorities the power to enter a premises, whether private or public, to install a device to monitor the gases emanating from the flue? Second, how do the local authorities monitor emissions other than sulphur dioxide and carbon dioxide, because most local authorities do not have the technology to detect unburned hydrocarbons, dioxins, hydrochloric acid or hydrochloric gases? How can they do this, even if they have the power to do so? I am not trying to make a political point, but people's health is being affected. We can get hung up on the emissions from industrial plants, from the Merrell Dow and the Sandoz plants, but we forgot about the emissions from incinerators in residential areas which are spewing out unmonitored gases day after day without any controls being placed on them.

I made my case on amendments Nos. 35 and 37 yesterday. The case is well made regarding the need to reform this House but we are doing very little to address it. Regarding democratic accountability for actions taken by Ministers on foot of legislation, we need to insert clauses such as proposed in these two amendments. The amendment in my name adopts the traditional approach by requiring orders to be laid before the House with the possibility of being annulled by the passing of a resolution within 21 sitting days. It is often difficult for parties in Opposition to find parliamentary time to annul an order. There is merit in the novel suggestion by Fine Gael Deputies and I indicated my support last night. Notwithstanding the Minister's support for the notion of democratic reform and improving the mechanisms of this House, she is still not disposed to accept either of these amendments.

Section 7 as currently drafted is flawed. It does not even require resolutions to be laid before the Houses of the Oireachtas. We will not necessarily be consulted in the vaguest of ways by the Department once this legislation is enacted. If the Minister is unwilling or unable to accept amendment No. 35 or paragraph (b) of my amendment No. 37, would she at least accept paragraph (a) of that amendment, which would require orders made under the Act to be laid before each House of the Oireachtas as soon as possible? That surely is the very minimum democratic accountability that we would expect from the Minister. I would hope that she would go considerably further and if either of the mechanisms proposed is unworkable she might come back on Report Stage with another mechanism deemed to be workable.

Deputy Howlin's request regarding subsection (4) (a) of amendment No. 37 seems reasonable and I will come back to that on Report Stage. I accept that it is impossible to annul regulations or orders. That is our own fault because it is due to our procedure.

We are trying to change it but the Minister will not accept it.

The procedures make it virtually impossible to annul orders or regulations. This is a wider issue for parliamentary reform.

I am accused of chastising Deputy Allen. I do not intend to chastise anybody and if I gave that impression I apologise. I was seeking yesterday to correct him and I suggest that there is a difference between correcting and chastising. I acknowledge that the situation regarding hospital incinerators throughout the country is very unsatisfactory. The Environmental Protection Agency are to be the monitoring, licensing and enforcing authority for hospital incinerators. They will be the appropriate body to ensure that these incinerators are operated to the highest standards.

Even in the absence of this Bill, local authorities have substantial powers. I referred to such powers yesterday. Section 54 of the Air Pollution Act states that a local authority may carry out or cause to be carried out such monitoring of (a) air quality and (b) the nature, extent and effects of emissions as the local authority may consider necessary for the performance of their functions under the Act or as they may be directed by the Minister to carry out. I have been reading reports regarding Cork, noting the words in the Act "or as they may be directed by the Minister to carry out." I have had some preliminary discussions about the publicity this matter received recently and I intend to discuss it further in the light of what has been said by Deputy Allen. If there is a misinterpretation on the part of some, we will be willing to give assistance and advice if necessary.

The hospital position will not be satisfactorily resolved until the Environmental Protection Agency is in place. The people in the agency will have the expertise, equipment and power to licence these operations. I accept that the position is most unsatisfactory throughout the country and that hospitals must be above reproach in these matters. It would not be a good advertisement for any hospital to be a source of pollution. I hope that when the Bill is enacted and the licensing powers are given to the agency the difficulties we have been experiencing will end.

It is very clear that the Minister is not in command of her brief. This was evident yesterday in relation to hospital incinerators and today it is shown in her response to our amendment. She said that if she were to adopt our amendment it would make the Minister powerless. That is not the case. She went on to say that the fault lay not in the regulations but in the procedures of this House. The very point of the amendment is to get over the deficiencies in our procedures. Almost every Bill contains provision for this 21-day regulation procedure which provides that any regulation made by a Minister is valid unless annulled by resolution of the House within 21 sitting days. On every occasion I can recall where a Member has sought to put down an annulling resolution, the Government have refused time to take it within 21 sitting days. I suspect that if this procedure were tested in the Supreme Court it would be found unconstitutional.

Here we are offering the Minister an opportunity to get over the problem in regard to these 21-day regulations by providing that where a motion is put down within ten sitting days by seven Members, that motion must be discussed. Seven being the minimum number for a group, that would avoid individuals tabling vexatious annulling resolutions. This was clearly intended when the legislative procedure was introduced many decades ago. It would not make it impossible for the Minister to act. Regardless of a subsequent annulling motion, anything done under the regulation would be valid for the period of its validity. If the Minister says otherwise, either she is not in command of her brief or she is misleading the House. I do not believe she is intentionally misleading the House. I am sick and tired enacting legislation which is subsequently ignored by Government and not put into effect. It is almost the accepted procedure for us to enact legislation but fail to make provision to enforce it. That is bringing the legislative procedure into disrepute. It is happening right across the board. Every aspect of legislation in this House can be criticised on the basis that we make inadequate provision for its enforcement or for calling Ministers to account for their deeds or omissions. The amendment in the names of Deputies Allen, Carey and myself will call the Minister to account for her actions — we still have no way of calling her to account for her omissions but at least we could, under this procedure, call her to account for her actions in relation to regulations.

I am very sorry the debate on this section is again being interrupted because of the urgency of other business. I intend to drive home the importance I attach to this amendment by forcing a division on it. I regret the Minister of State is not in a position to accept the amendment. I regret she does not see the validity of the amendment in affecting the reform of the procedures of this House which she has recently criticised.

I wish to make one other point in relation to this amendment which concerns the roles given to local authorities under the regulations when they do not have the technology to undertake the monitoring role to be allocated to them. This is obviously another case of legislation in a vacuum and not really providing any true enforcing powers.

Progress reported; Committee to sit again.