We had a long debate on this amendment and there is an agreement today to debate as many sections as possible. I understood that the Minister was well disposed to the import of the amendment and I asked whether it would be possible on Report Stage for her to accept the phrase "not exceeding £10 million or such greater sum commensurate with the full cost of returning the environment to its original state or reasonable equivalent". If the Minister of State is well disposed to that we can achieve the twin objectives of the Opposition Deputies who tabled the amendment who are fearful that a fixed sum — even a sum of £10 million — will be insufficient to meet the requirements of a horrendous catastrophe such as the Exxon Valdez, and at the same time have a back-mark figure in the legislation. I ask the Minister of State to consider that formulation.
Environmental Protection Agency Bill, 1990 [ Seanad ]: Committee Stage (Resumed).
Will the Minister consider this amendment for Report Stage? While the sum of £10 million mentioned in the section seems a lot of money, it is very easy to visualise environmental disasters which could cost a great deal more to put right. For instance, in Alaska, an oil tanker went aground on the rocks and did hundreds of millions of pounds worth of environmental damage. It is not fanciful to think that that sort of situation might arise around our coast; indeed when I was Minister for Transport there were two major alerts on the same night, the Kowloon Bridge and the Capo Emma. We were very lucky to get away with small environmental damage. Luckily, there was no damage of a lasting nature and it did not cost a fortune to put right but it could have. I also remember the Torrey Canyon disaster off the coast of Cornwall about 20 years ago which did an incredible amount of damage and cost much more than £10 million to put right. In that context, I ask the Minister to accept this amendment or to address it in somewhat altered wording on Report Stage.
When we were debating the Bill on the last ocasion I moved this amendment, I thought it was self-explanatory and I did not think there would be a long debate on it. I gather from the Minister's attitude that she understood exactly its import and that we wanted to ensure that those responsible for massive pollution on the scale which would require to be met by costs greater than £10 million would be held accountable and charged and that no limit would be put on the figure. Since then there have been oil spillages along the west coast from Mayo right down to Kerry and they can cause major disasters. The Minister should favourably reconsider the suggestion of the Fine Gael Party.
My amendment No. 43 is being debated with this amendment and I should like to make a few points. The issue which the Fine Gael amendment is quite rightly addressing is the possibility that damage caused might exceed the sum of £10 million and that there should be provision in the Bill for the possibility of fines exceeding that amount, which is as it should be.
My amendment addresses a slightly different aspect of the problem, situations where, very probably, the amount of damage caused might well be considerably less than £10 million but, when the case is brought to court, where a judge might not impose the kind of fine commensurate with the damage caused. There are many examples, even where the Legislature indicates high maximum fines, of the Judiciary delivering inconsistent judgments. Very often a judge, for whatever reason, does not imppose a fine commensurate with the damage caused. My amendment seeks to put an obligation on the court to take account of the damage caused when imposing a fine. We have laid down a maximum fine of £10 million, although the damage caused might be considerably less. It might be in the order of £500,000, but the judge may decide to impose a fine of a couple of thousand pounds, completely out of proportion to the damage caused. In the Bill there is much reference to "the polluter pays" principle but it should be stitched into the Bill that that principle is not just about laying down maximum fines it is also about placing an obligation on the courts to take account of the amount of damage caused when they are making their judgment and imposing the fine for the offence which has been committed.
Since we discussed this on the last occasion I have had the opportunity of discussing the matter with the Attorney General. I said on the previous occasion that I was against removing the £10 million fine because it is important to give an indication to the courts in this legislation of the extent and kind of fine about which we are talking.
I agree with some of the comments made by Deputies in relation to the reluctance to impose substantial fines on those convicted of offences in relation to environmental damage. I hope that will change and that the courts will impose tough fines where persons are convicted of pollution offences. I am very keen, in so far as I can, to give guidance and encouragement but, at the end of the day, it is purely a matter for the courts to consider all the evidence and weigh the facts before them. I said the last day that I was very taken by the amendment in the name of Deputy Gilmore and certainly the substance of what the Deputy is trying to do appeals to me. However, when I discussed it with the Attorney General he advised that because the amendment includes the words "shall have regard to the cost of restoring damage" if there was no damage to the environment but gross negligence on the part of a particular individual or company, the courts would be prevented from imposing a fine or certainly would be prevented from imposing a large fine and that the fine would have to be linked to the cost of restoring the damage. What I want to do is to keep the monetary fine of £10 million as well as taking on board what the Deputies on all sides wish, that is, in addition to a fine that we would have regard to the cost of repairing the damage and restoring the environment, if that was considered desirable. I will have further discussions with the parliamentary draftspersons on that matter before Report Stage.
Let me add, however, that the costs of mitigating or remedying the effects of emissions are covered in the Third Schedule which encompasses the Air Pollution Act and also by the Water Pollution Act, which is also covered by this Bill. If an offence is committed under the Water Pollution or Air Pollution Acts, the court in addition to imposing a fine will be free to impose a sum of money commensurate with making good the damage — for example, setting aside a sum of money so that a river may be restocked. I ask the Deputies to bear with me until Report Stage. In addition to imposing a fine I will see if there is some other way we can indicate to the courts that the fine should reflect not only the negligence but the level of damage that has been done to the environment and the cost of repairing that damage.
I observe that amendment No. 42 was discussed with amendment No. 40. Likewise, amendment No. 43 in the name of Deputy Gilmore was discussed with amendment No. 41.
I move amendment No. 42:
In page 13, lines 24 to 30, to delete subsection (2).
I move amendment No. 43:
In page 13, between lines 36 and 37, to insert the following subsection:
"(4) A court, when imposing a fine for an offence committed under this Act, shall have regard to the cost of restoring the damage caused by the offence.".
In the light of what the Minister has said, I will withdraw my amendment.
I move amendment No. 44:
In page 13, lines 38 and 39, to delete "prosecuted by the Agency,".
As the section stands at present it appears to us that the payment of fines to the agency is limited to offences processed by the agency. We wish to delete the words "prosecuted by the Agency" so that no matter who institutes the prosecution the fines will go to the agency. This seems a reasonable point to put to the Minister and perhaps she will explain why the agency will only get the fines in the cases where they instituted the prosecution.
We feel the agency should be the beneficiary of all the fines. While I personally as a member of a local authority see some merit in the local authority getting the fines in cases brought under the Air and Water Pollution Acts, as there is a cost involved to the local authorities in carrying out their duties under the environmental legislation, it would be of benefit if all fines went to the agency and I ask the Minister to give us the benefit of her wisdom as to why this should not be the case?
The acceptance of this amendment would involve a total change in our legal system. The fines on summary conviction will obviously go to the agency because they will be the prosecuting authority. If we were to accept the Deputy's amendment it would mean that in cases where the Minister, a local authority, a body responsible for Eco-labelling for example or for operating internationally modified organisms took the prosecution, the agency would benefit from the fine. I think that would be unsatisfactory. The prosecutions will be taken by the Director of Public Prosecutions who will in the main bear the heavy cost of taking such a case. Although the agency will give assistance in the case, the Director of Public Prosecutions will bear the heavy burden of taking the case through the court. It is right and proper therefore, as happens in all other cases in the State under our present legal system, that fines so imposed go to the State. It is then a matter for the State to decide how such fines may be allocated.
I am not free to accept this amendment as it would involve a total change in our legal system. It would mean that the agency would be the beneficiary of fines even when they did not actually prosecute or have any real function in relation to matters which would be the function of other bodies. For that reason I am not in a position to accept this amendment.
We feel that the agency should benefit from the fines. Obviously, there is a cost on the office of the Director of Public Prosecutions when he prosecutes the action in court, but I believe that after the costs have been met the balance of the fine should go to the agency.
I accept that the Minister has set her face against this procedure. As we have agreed to proceed as quickly as we can, I will withdraw this amendment.
I move amendment No. 45:
In page 13, subsection (1), lines 44 and 45, to delete ", other than section 104, 106, 108 or 109 or any regulations made thereunder,".
The purpose of this amendment is to allow the agency to prosecute under all sections of the Bill. We believe the agency should not be excluded from taking actions under sections 104, 106, 108 and 109 and that the agency should be allowed to prosecute cases under all sections of the Bill. I would like to hear an explanation as to why the agency was excluded from taking action under particular sections.
The Deputy is not going to hear the Minister's reason because this is a good amendment and I am happy to accept it.
I observe that amendments Nos. 46, 47, 48, 49 and 50 are related and I suggest, therefore, that the amendments be discussed together. Is that agreed? Agreed.
I move amendment No. 46:
In page 14, subsection (1), line 33, after "Act" to insert "or with any other Act concerning the environment which is prescribed for the purposes of this section".
The purpose of this group of amendments is to ensure that members of the Garda Síochána will be included among those who can make inspections. It is appropriate that the Garda should be included as well as inspectors from the agency. I would like to hear the Minister's comments on whether she will accept our amendments before I comment further.
I wish to speak to my amendment, No. 48 which is being taken with Deputy Howlin's amendments. The section provides for authorised persons of the agency to enter premises to examine documents, records, take samples and so on. Two types of situation are presented here. One is where an authorised person would enter a premises, for example, a factory or some kind of commercial premises where it would be necessary to carry out certain inspections. It is perfectly in order that the authorised person would be enabled to enter those premises on their own without notice to carry out whatever inspection would be necessary. Situations might arise from time to time, as Deputy Kavanagh pointed out, where it might be necessary for the authorised person to be accompanied by a member of the Garda Síochána. I do not think it should be necessary on all occasions for the authorised person to go to the trouble of getting a member of the Garda Síochána to accompany him or her into the premises.
The second situation — which my amendment is seeking to address — relates to subsection (2) which deals with entry into a private dwelling. The Bill, as drafted, proposes that the authorised person can only enter a private dwelling if he has given 24 hours notice to the occupier of his intention to enter the dwelling. That is perfectly reasonable as far as it goes. One has to be cautious and sensitive when talking about persons acting on behalf of the State or State agencies entering private dwellings. Some precaution has to be taken as private dwellings might be used to conceal and avoid possible prosecution by unscrupulous people who, aware that the authorised person was about to make a swoop, transferred certain equipment or documents into their private dwelling, and, having got 24 hours notice of the authorised person's intention to visit, would have the opportunity of disposing or transferring them to somewhere else.
My amendment seeks to provide an arrangement whereby the authorised person, if he believed something of that nature was taking place, would be able to go to the court, obtain a warrant to enter the premises and enter the premises in the company of a member of the Garda Síochána. The Control of Dogs Bill, which is before the House, gives a dog warden authority, through the Garda Síochána, to obtain a warrant and, in the company of a member of the Garda Síochána, to enter a private dwelling. I do not anticipate that that would arise too often. Where there might be serious pollution and where the level of fines may be substantial one has to anticipate the extent to which unscrupulous people will go to avoid prosecution. I see a possible loophole in this legislation if 24 hours notice has to be given before entering a private dwelling. In normal circumstances that would be perfectly reasonable. That loophole must be closed in cases where the private dwelling may be used to escape possible detection and prosecution.
In general, I support amendments Nos. 46 and 47. I am very supportive of amendment No. 48, in the name of Deputy Gilmore. It is a very reasonable amendment. It should be borne in mind that private dwellings are sometimes used illegally for business purposes where planning permission has not been granted. In the normal course a person's private dwelling, which is used solely for that purpose and not for any business activity or to store documents of any kind, should be protected by legislation. However, Deputy Gilmore is trying to strike a reasonable balance between the obvious rights of the householder and the rights of the community who could be involved if there were some serious pollution problems. It is an excellent amendment. Deputy Kavanagh elaborated on amendments Nos. 49 and 50. I do not fully understand their purpose so I cannot indicate whether I would support them.
I am happy to accept amendment No. 47 in the name of Deputy Howlin. It seeks to insert after "persons" the following, "(including members of the Garda Síochána)". Although I believe members of the Garda Síochána were included it is no harm to specify it.
Deputy Gilmore made a very good case for his amendment. I would like, with his agreement, to give some further consideration to it before Report Stage. Obviously, authorised persons can enter premises other than private dwellings without giving notice. That is desirable, otherwise it would be impossible for them to carry out their duties, to take samples, inspect records and so on. If they had to give notice invariably all the evidence would be removed. When authorised persons are visiting private dwellings I am anxious to ensure that they respect, on the one hand, the privacy of individuals and families and, on the other, that they have due regard for the need for the agency to have authorised persons go to private dwellings to assist in carrying out the work. However, because the Deputy includes a warrant and asks that the authorised person be accompanied by a member of the Garda Síochána — that is a reasonable precaution — I would like to discuss the matter with the Attorney General. I would not agree to deleting subsection (6) because there should be a power to give 24 hours notice of an intention to visit a private dwelling except in circumstances, as suggested by Deputy Gilmore, where the warrant is obtained and the person enters in the company of a member of the Garda Síochana for the purposes of carrying out an inspection, examining records and so on. If one gave notice of intention to visit a dwelling and was refused entry we would need subsection (6) which allows one to obtain a warrant, following a refusal.
Subsection (6) states:
Where an authorised person in the exercise of his powers under this section is prevented from entering any premises, the authorised person or the person by whom he was appointed may apply to the District Court for a warrant...
This includes an authorised person who is refused permission to enter a premises or refused entry after 24 hours notice has been given to a private dwelling. In the event of such a refusal the authorised person has the power to obtain a warrant to enter the premises. Therefore, I would not be happy to delete subsection (6).
Amendment No. 46, in the name of Deputy Howlin, seeks to give authorised persons under this Bill, in certain situations prescribed by the Minister, certain powers for the purposes of other environmental legislation. That is a far reaching power and it means for the purposes of implementing the Safety, Health and Welfare at Work Act and similar Acts, that an authorised person under this Bill will also be the authorised person under those Acts.
The Minister for the Environment would be able to prescribe, in the case of any legislation — because almost everything affects the environment in some way — that these authorised persons would have the powers that other bodies already have. Although there will be cases where it would be sensible for the authorised persons, for the purposes of this Bill, to act in certain situations for other bodies from time to time this would have to be specifically referred to and the powers of those bodies would have to be transferred to the agency for that purpose. It could prove in time that to have a hard and fast rule in these matters is too black and white.
I would like to have an opportunity before Report Stage to talk again to the Attorney General about this matter to see if we could facilitate authorised persons of this agency to act as authorised persons for the purposes of other legislation. I am thinking here of emergencies where it might be desirable, where agency staff are working in a particular area, for them to act on behalf of another body from time to time. Subject to the agreement of the House, I will consider amendments No. 46 and 48 before Report Stage.
How does amendment No. 46 stand?
I accept the Minister of State's assurance that she will look at it again.
I move amendment No. 47:
In page 14, subsection (1), line 34, after "persons" to insert "(including members of the Garda Síochána)".
I move amendment No. 49:
In page 15, lines 19 to 22, to delete subsection (6).
It seems, given the way the subsection has been drafted, that it will allow the authorised person to apply for a warrant but does not expressly authorise the court to grant the warrant. Neither does it provide any criteria for the court to apply in deciding whether to grant the warrant. It is important that there should be some mention of this in the subsection. Neither does it outline what the consequences would be if a warrant is disobeyed. Would the Minister of State comment on those points?
I am not a lawyer but let me give an immediate response. I think we would have to leave it up to the court to decide whether a warrant should be granted. This subsection will apply if the authorised person is refused entry to a premises. It will apply where a person is physically restrained from entering the premises in which case they should be perfectly entitled to go to the court to put their case. I have no doubt that in virtually all circumstances the court would be willing to give the authorised person the warrant to enter a premises. It would then be a legal matter and I presume that they would be accompanied by members of the Garda Síochána, although not necessarily so, but they may have to be if they are physically restrained from entering the premises.
I do not think it is desirable that I should set down the criteria that the court should take into account. Obviously it will be put to the court that authorised officers, if they are to carry out their duties, will have to be allowed to enter a premises to take samples and carry out inspections. If they are not in a position to do so they will not be in a position to carry out their duties under the Bill. Therefore, I have no doubt that the court will give them the necessary warrant if they find it impossible to carry out their duties otherwise.
It would be wrong of us to tie the hands of the court and allow it grant a warrant in specific circumstances only, or to insist that the court grant the warrant. At the end of the day the court will decide and obviously will have the power either to give or refuse the warrant. It may refuse to grant a warrant if it feels it would be unreasonable to do so and that there are no good grounds for believing that a warrant is necessary. I think that would be the exception and I cannot think of any circumstances where it would be possible for me, even if I was willing to do so, to limit the capacity of the court to decide on matters of this kind. I am not aware that this happens in the case of other legislation and I think it is purely a matter for the court to decide whether to grant a warrant on the basis of the facts before it.
I move amendment No. 50:
In page 15, lines 23 and 24, to delete subsection (7).
The reason this amendment has been tabled is that it appears subsections (7) and (8) are unnecessary. Section 6 (1) empowers the Minister to make regulations for the purpose of giving full effect to this Bill. That is one of the main reasons this subsection should be deleted. It also seems that subsection (9) is meaningless. What is the point in giving a certificate outlining the results of tests on a sample unless that certificate is going to be used in criminal proceedings, where environmental legislation has been breached? The subsection should state this. We think the subsection should be deleted for those reasons.
As this is enabling legislation, the Minister is given various powers throughout the Bill, many of which will be implemented by way of regulations. Although a specific power is given in the Bill it is repeated in many of the individual sections. It is interesting that while Deputy Howlin wants to delete subsection (7) he leaves subsection (8) which also gives the Minister power to make regulations, if he so wishes. In that subsection the word "may" is used as opposed to the word "shall". It states that the Minister may make regulations to provide for the taking of samples and the carrying out of tests, examinations, analyses and so on. If there is a necessity for regulations, it is desirable that the power to make regulations should exist in this subsection as it does in many other sections of the Bill.
If the Minister of State feels that she needs to do a belt and braces job, well and good we will not oppose the subsection, but I wish to make the point that it seems to be unnecessary.
I take the Deputy's point that it is strange that it is in subsections (7) and (8). I have been advised, however, that if we are to give this power in subsection (8) we will have to give the Minister the general power in the section. That is the reason the general power is given in subsection (7) and the purposes for which regulations may be made are listed in subsection (8).
I move amendment No. 52:
In page 16, line 29, to delete "alleged to have been".
I am quite concerned about this section and I would like to hear the Minister of State's rationale for including it. As I read it, section 15 will put the agency above and beyond the law. It states:
No action or other proceedings shall lie or be maintainable against the Agency or any body referred to in section 44 or 45.
—those sections refer to local authorities and various other public authorities who will carry out various functions on behalf of the agency—
for the recovery of damages in respect of any injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to perform or to comply with any of the functions conferred on the said Agency or body.
In other words as I read the section, if the agency are negligent in carrying out their functions or cause damage to property or injury to people in the course of carrying out their functions they cannot be sued. I find this to be an extraordinary section. In other words, the citizens, the public, will have no recourse to the courts of the land against the agency in respect of any of the agency's actions or if they are negligent. That seems to be an extraordinary provision. I do not know of any other public authority that cannot be sued. That is what is being proposed in this legislation. I would like to hear the Minister's explanation for it. I indicated in the amendments tabled that I wish to oppose the section, because as it stands it is extraodinary to put into legislation a provision that the Environmental Protection Agency would be above the law, above the normal recourse that citizens have to the courts for actions concerning negligence, damage, or loss.
Before the Minister responds, there is an amendment on this section in the name of Deputy Howlin, amendment No. 52. I will afford Deputy Kavanagh an opportunity to speak to it a little later perhaps when the Minister replies to Deputy Gilmore's comments.
I would like to join with Deputy Gilmore in expressing my concern about this section and then the amendment will be quite clear.
Section 15 provides complete immunity for the agency in tort actions for the recovery of loss caused by failure to exercise functions under the Act. It would not appear to prohibit a criminal prosecution of the agency or a judicial review of the agency's failure to act in a particular case, nor would it appear to prohibit tort actions where the agency performs a function negligently, causing loss. The Minister referred to this in the Seanad debate. The section also applies to any body referred to in sections 44 and 45. This could refer to the Minister, a local authority or any other public authority.
The protection of these bodies in the language here is a little bit coy. If the Minister wishes to protect herself, she should name herself in the Bill in section 15. This subsection should be deleted. Perhaps the Minister will be able to answer some of our concerns about this subsection and then we can consider how we will deal with the amendment.
This section does not give immunity against the negligent performance of functions, nor does it mean that the agency are above the law, as the Deputy suggested. This section provides that the agency shall be immune from any legal proceedings for recovery of damages arising from a failure to perform their functions. It does not give immunity against negligent performance or functions. A similar immunity is granted to any other body, such as a local authority or any other public authority, or the Minister when providing services under sections 43 and 44. The range of functions under the Bill is so broad that if the immunity was not included it would leave the Agency or bodies acting on their behalf exposed to a succession of law suits which would be damaging, not only financially but which would also adversely affect the credibility and standing of the Agency and the other bodies involved. Without this provision the Agency could easily become the fall guy if serious pollution occurred, given the doctrine of joint and several liability which applies in Irish law. There is a similar provision in the Safety, Health and Welfare at Work Act. If, for example an officer of the Agency did not notice something on an inspection, it would not be fair that the Agency could be held liable if the inspector deemed that everything was in order and an accident occurred later. If this power was not here, they would be open to a host of litigation. While it is open to anybody to sue the agency or the officers of the agency for negligence, it would be a matter of having to prove their case. If we did not have this provision the job of the agency would be impossible.
There is a wide number of functions in this Bill. If the agency had not the resources to carry out some of the functions, should they be liable? When the Agency start work they will have to decide on priorities and some matters may be left aside for some time. Would it be appropriate to subject the agency to litigation for failure to carry out a function simply because they felt that it was in the interests of the environment to organise their affairs in a certain way? The Deputies are concerned that in carrying out their duties the agency will in some way be above the law because of this section. That is not the intention or the effect of this section. If the agency are negligent in the performance of their functions they can be sued. It would be wrong if the agency could be sued for a simple mistake or for a failure to see something. A similar provision exists in relation to the Safety, Health and Welfare at Work Act. I am not sure if it applies in relation to other legislation, but I will check up on it. We had a good debate in relation to this matter in the Seanad. On balance it is appropriate that officers working for a public authority should have this kind of protection. Otherwise it would be virtually impossible for them to carry out their duties under the Act.
I am not a legal person but I do not readily see the distinction between being able to pursue an action against somebody for negligence as against an action for failure to carry out some function. The example the Minister gave of an officer of the agency going out on inspection and failing to notice something could well be regarded as negligence in certain circumstances, whereas if the officer had not gone out at all to inspect something that might be regarded as a failure. There is a very thin line here.
We want the agency to work effectively. If we allow this section to remain in the Bill, whereby the agency, the directors and officers know that no matter how lax they are in carrying out their functions, no matter how lethargic they become, nobody has any recourse in law against them, it could result in an agency which is less than active and vigilant in doing their work. Any action brought by any person has to be proved. If one wants to take an action against the Environmental Protection Agency, or against a local authority to whom functions had been delegated, because of their failure to carry out inspections or other functions under the legislation, one must prove one's case.
The Minister is suggesting that the agency would be inundated with actions being taken against them, exposing them to all kinds of costs; but anybody taking an action against the agency would have to prove his case and assess his chances of success before going into court. There is the normal precaution. Any of us in the course of our work can be subject to actions being taken against us. A doctor in a hospital, a teacher in a school, an individual school and all kinds of bodies are open to actions being taken against them. The people taking the actions must prove their case.
It is not just a question of negligence. I do not see how one can draw the fine distinction between negligence and failure under this section. If the agency receive a report about a factory causing a great deal of pollution in a local area and the agency fail to inspect it or to deal with the matter, pleading that there are other priorities and that they do not have the officers available, does that mean that the person who suffers loss or damage due to the pollution cannot pursue the agency? Let us say the agency were in place when the Merck, Sharp and Dohme case arose in which Mr. Hanrahan claimed he had suffered loss as a result of pollution. If the person concerned had reported it to the agency and they had failed to do anything about it, would they have been immune from action? This is a very dangerous provision from the point of view of the citizen who has a right to expect action and service from public bodies funded by our taxes. Lawyers will have great fun trying to draw the distinction between failure and negligence in particular circumstances.
In my experience as a Member of this House and as a member of the Public Accounts Committee, I have been disturbed by the lack of accountability by public bodies. Local authorities are being screwed to the wall by a litigation-conscious public, egged on by members of the legal profession who seem to be hell bent on getting people into court to contest even minor incidents. One must try to reach a balance.
Having considered this matter, I have to agree with Deputy Gilmore that all public bodies must be accountable and that the public must be protected against negligence and carelessness. Will the officers and staff of the agency be protected if the agency do not have the resources and technology to take up existing issues and those which may arise? It will take two or three years for the agency to become fully operational. What will happen if in the meantime a serious incident occurs which the agency have not the necessary resources and manpower to deal with?
I can see both sides of the argument, but the public have a right to be protected and to take any action they deem fit. I support the amendment.
Amendment No. 52 is an attempt to remove the defects in this section. Deputy Gilmore's proposal to oppose the section is probably the easiest way out. The section is not well worded in that it gives immunity to the Minister in respect of the non-exercise of any of her functions under the Act. Is that what the Minister intended? If the Minister is not prepared to accept the amendment, I will have to press the matter to a vote.
I have listened carefully to the debate and I am inclined to come down on the side of the Minister in this instance. Deputy Gilmore mentioned Merck, Sharp and Dohme and asked what the situation would have been if the agency had been in place when the case was taken against them by Mr. Hanrahan. The primary people liable are the companies operating these industrial plants which are causing pollution. These are the people who should pay. The courts have been used by Mr. Hanrahan and many other plaintiffs over the years taking cases on environmental grounds against polluting industries. We must not lose sight of that fact.
I get very cynical when I read in the newspapers that a certain county council have been fined £5,000 for breaches of the Water Pollution Act. Who is to pay that £5,000? It will not be the officials of the local authority but rather the rate payers or taxpayers. If, as Deputy Gilmore suggests, a complaint is made to the agency and they fail to respond, or else carry out their inspection in a cursory fashion without pursuing the complaint, the Minister and the director general should be accountable for any loss caused by pollution. The Minister should remove the director general or resign. Alternatively the director general should remove or suspend a negligent employee. A multi-million pound action against the agency will merely take money from the pockets of the taxpayers. It is the polluter we must attack, not the agency. If the agency are at fault the Minister and the director general should accept responsibility. For those reasons I will not support these amendments.
If there is one thing we should have learned during the past six or nine months it is the difficulty of getting Ministers or Taoisigh to resign on foot of non-performance or failure on the part of public bodies. It is not the easiest thing to establish a sufficient degree of accountability between the public body and the political person responsible to cause a resignation. Unfortunately we do not seem to have the kind of political culture that would allow that to happen.
Second, I distinctly recall that in the Merck, Sharp and Dohme case questions were raised about the performance of the local authority concerned. If the local authority had been more vigilant in the carrying out of their functions the case might never have ended up in the courts. There is a principle involved here, the principle of accountability. There are a number of ways of making people accountable. As Deputy Garland has indicated, there is the political way, and I am in favour of that; but there is also accountability through the courts. I do not believe that anybody, including a public body, should be immune from court action, which is effectively what this section provides for.
I accept what Deputy Gilmore has said about lawyers having a field day trying to distinguish between failure and negligence, which is not an easy thing to do. In the example given by the Deputy of an incident of pollution being reported to the agency but the agency doing nothing about it, obviously that would be negligence. Where negligence is established the Agency can be sued and successfully prosecuted. However, there is a difference between that case and, for example, the case of an officer of the agency going to a particular plant and failing to notice that something is wrong. If pollution or a major accident is caused, with somebody being killed or injured, or if environmental damage is caused, it would not be appropriate to involve the agency in any action that might be taken. If, for example, members of the public complain about an environmental incident, instead of seeking, as Deputy Garland suggested, to have the real polluter convicted, the Agency would become the fall guy because they would be acting on behalf of the State.
It would be virtually impossible for the director general, directors and staff of the agency to carry out their duties if they were to be subjected to the kind of litigation that could follow if immunity was not provided for. The problems referred to by the Deputy would at the end of the day have to be matters for the court. Otherwise, a Government may decide not to fund the agency because they know that the agency have widespread powers and have to work all night if necessary in order to carry out their task. If they do not do so they could be sued and successfully prosecuted. If we do not provide for immunity it would be virtually impossible to get employees to work for the agency. If the agency fail to carry out their function because they have not the resources to do so, it is only right that blame should rest on the Government rather than on the officers of the State agency. Perhaps the agency may not be able to take proper samples because they have not the resources to buy certain equipment and as a result a pollution incident occurs. In such a case the inspector may have carried out his duties in a proper way but because he did not have the wherewithal to do the job that was necessary he could be held liable. That would be intolerable.
On balance, it is right that such a provision be inserted in this Bill. A similar provision is included in the Safety, Health and Welfare at Work Act, 1989, and perhaps in other legislation. Because of what is involved here it is right that the courts should decide whether there is negligence. Where there is failure to carry out a function either due to lack of resources or because of the priorities of the agency, the agency would obviously have to be immune from legal action.
I move amendment No. 53:
In page 16, after line 45, to insert the following subsection:
"(3) The Minister may by regulations extend the provisions of paragraph (3) of the Third Schedule, with or without modifications, to types of pollution (including waste) other than air pollution.".
This section was inserted as a Government amendment in the Seanad. My amendment proposes to extend the provisions for civil liability to all forms of pollution as covered in legislation such as the Water Pollution Act and other legislation. This is a reasonable amendment which would give scope to the Minister, by way of regulation, to extend the provisions of paragraph 3 of the Third Schedule or to make whatever modifications as appropriate, to other legislation.
The point the Deputy wishes to cover is already covered in the Air Pollution Act and the Water Pollution Act. The Deputy seeks to extend the provision to waste, but there is no waste Act at present. The intention is that the kind of provision included here will be included in the proposed waste legislation and it would be more appropriate that we deal with the matter then. Otherwise we would be discussing hypothetical legislation. As the Deputy knows, the Third Schedule deals exclusively with air pollution and matters relating to the Air Pollution Act. It is desirable that we do not include other matters under that Act unless we can specify precisely what they are, and since there is no waste Act we cannot do that. However, I give the Deputy an assurance that in the proposed waste legislation we will make provisions of this kind.
It is all very well for the Minister to say that this matter is more appropriate to waste legislation. I know that legislation has been promised in this area, but many Bills promised in this House never materialise or materialise much later than promised. For instance, for almost a year the Housing Bill has been promised to be circulated next week, this session or next session, but it still has not been introduced. The latest promise is that it will be introduced this week and, even if that is done, it is certainly a long time after it was first promised. Some time ago we were told that legislation to deal with the question of waste would be introduced in the first half of this year. From recent discussions I learned that this legislation will not be introduced before the summer. Can the Minister give an indication when the relevant Bill will be circulated and what is the target date for the enactment of that legislation?
The Taoiseach has already told the House that the Housing Bill will be circulated tomorrow or later in the week. The Government intend to circulate a waste Bill before the summer, but I told the Deputy that the Bill was unlikely to be discussed before the autumn. It is certainly hoped that the House will debate the waste Bill this year.
The amendment would have no practical effect until the waste legislation was in place, which is the reason I believe it is more appropriate to wait until the waste Bill is before the House. That Bill will give powers of this kind to the agency.
I am not sure what the Minister means when talking about the negligible impact the amendment would have. Paragraph (3) of the Third Schedule provides civil remedies and civil liability for air pollution and other types of pollution. The amendment seeks to extend those provisions to pollution caused by waste. I do not understand why that measure would not do exactly what it is intended to do. I accept that the Minister has made a promise to the House concerning the production of a waste Bill, and that is to be welcomed. In the absence of that legislation, however, we have to deal with the legislation that does exist. Perhaps the Minister would give an assurance in terms of a time frame for the waste Bill. In the absence of that, the Bill would be improved by including waste pollution in paragraph (3) of the Third Schedule, as suggested in the amendment.
As I told Deputy Mitchell, the time schedule for the Bill is, hopefully, for publication by the summer. The waste Bill is comprehensive and major legislation. It is hoped discussion will take place in the autumn or as soon as the House has the opportunity to discuss it.
I should refresh Deputy Howlin's mind by reminding him that the Third Schedule is simply concerned with amending the Air Pollution Act. That is the whole purpose of that schedule, which I brought to the House during the debate on the Bill in the Seanad.
That is correct.
Deputy Howlin wants to include waste pollution in the Air Pollution Act. I do not consider that measure appropriate to the Air Pollution Act, I consider it to be appropriate to the new waste Act.
If we had a waste Act.
There will be one. It would not be good practice to include in the Air Pollution Act matters relating to waste; it would be much more appropriate to waste legislation. I hope the Bill will be circulated by this summer.
I suggest that the Minister could accept the amendment and that when the waste legislation is enacted an amendment could be made to the Environmental Protection Agency Act. In that way the provisions would be extended to include waste pollution until the waste legislation was enacted. It is normal practice that a Bill makes amendments to other legislation that has been passed and that would seem to be a reasonable approach.
I move amendment No. 54:
In page 17, subsection (1), lines 3 and 4, to delete "An Ghníomhaireacht um Chaomhnú Comhshaoil" and substitute "Ecomhshaoil".
The amendment proposes the deletion of what I consider to be an awful, tongue-twisting mouthful in the Irish language. The Irish name given to the Environmental Protection Agency is "An Ghníomhaireacht um Chaomhnú Comhshaoil". Who will ever refer to the Environmental Protection Agency as An Ghniomhaireacht um Chaomhnu Comhshaoil? Use is made of Irish names that are pronounceable or simple; names such as Bord Fáilte and Eolas are used in every day language.
Coillte is another word, as Deputy Kavanagh points out. That word is very imaginative and descriptive. The amendment proposes to substitute the word "Ecomhshaoil" as the Irish name for the Environmental Protection Agency,. "Comhshaoil" is the word we now use in the Irish language for environment. That word could be construed to mean "for life" in relation to the environment and "eco" is the abbreviation used for the word "ecology", so I propose that we invent a new Irish word "Ecomhshaoil" to describe the Environmental Protection Agency. An Ghníomhaireacht um Chaomhnú Comhshaoil, I hope the Minister agrees, is rather a tongue-twisting mouthful.
I compliment the Deputy for inventing a very clever new word in the Irish language. However, I am not in a position to accept any old word in substitution for the appropriate official term. I accept that the Irish language is rather complicated and perhaps in titles too many words are used but I am not at liberty to change the language in this regard. Certainly, if, on establishment, the Environmental Protection Agency wish to use an abbreviated name in Irish, that would be acceptable to me. For the purpose of the Bill, however, we have to use the literal translation of the name and therefore I am not able to accept what is not the literal translation of that name.
I am very upset at the Minister's intransigence.
Amendments Nos. 55 and 56 to section 19 tabled by Deputy Gilmore are deemed to be out of order as it is contended that they would both add a potential charge on the Revenue.
How is that?
I do not wish to be difficult, but I point out that amendment No. 55 simply seeks to put a time limit on the coming into being of the agency. I do not understand the way in which that would constitute a charge on the State.
The amendment seeks to bring forward the commencement of the Act, which would result in expenditure of public moneys being incurred earlier than would necessarily be the case otherwise. Therefore it constitutes a charge on the Revenue and the amendment is consequently out of order. I am advised that the same ruling applies to amendment No. 56. Therefore we come to the section.
I should like to speak on the section. The Chair's statement requires some comment from the Minister of State.
Amendment No. 56 was tabled as a demonstration of my concern that the number of members of the agency, at a director general and four directors, seemed to be very low, particularly given the range of work in which the agency will be engaged when fully operational. My amendment seeks to increase the number of members of the agency. I accept the ruling of the Chair that to increase the number of directors would involve a charge on the State and I understand the reason for ruling the amendment out of order. Nevertheless, I would like the Minister to say whether or not she feels that the number of directors proposed for the agency is sufficient, given the range of work that the agency will have to do and given that the quorum will have to be two. Given the possibility that there may be people on leave, who have retired, or whatever, in practical terms there could be fewer people than a director general and four other directors serving on the board which could result in delays and so on. For example, a planning Bill is being brought before the House, purportedly, to address alleged delays on the part of An Bord Pleanála, delays, it was alleged, were caused in the first place by a shortage of staff in An Bord Pleanála. That is now being dealt with in a completely different manner. I should like the Minister of State to comment on that.
The Chair's comments in relation to the other amendment, that a provision that the agency be brought into being not later than three months after the passage of the Bill, would involve bringing forward the date on which the agency would come into being fills me with alarm. At one stage we were told this agency would be established on a non-statutory basis, even before the legislation was enacted there being such urgency about it.
With regard to the question of there being a charge on the State, I would point out that as far back as 1990, £500,000 was provided in the Estimates — I forget what the figure has been in succeeding years. Money has been provided in the Estimates from the establishment of this agency. We are now almost into the month of April and by the time the Bill goes through Report Stage, is returned to the Seanad and so on, it could be quite some time before it is enacted. Add three months to that and we discover that, at the earliest, it could be the end of 1992, possibly into 1993, before the agency will be established. I am alarmed that the Minister would even contemplate a period longer than three months after the enactment of this Bill before establishing the agency given that money has been provided in the Estimates for its establishment.
While accepting the Chair's ruling I should like the Minister of State to comment.
I am very sorry these amendments have been ruled out of order. I do not know how the amendment to section 19 (3) could be seriously construed as necessarily constituting a charge on the Exchequer.
May I interrupt the Deputy for a moment? I allowed the Deputy who tabled the amendments some latitude on this question. He has put his point very well. I am not prepared to allow any further comment on whether they are out of order.
We are talking on the section.
The section is open for discussion but we cannot have a debate on the amendments being deemed to be out of order.
I accept the Chair's ruling. I accept that the number of directors proposed is very small. In principle I am not in favour of very large boards. The point I wish to make is that under the provisions of this Bill all the directors appear — the Minister might correct me if I am wrong—to be executive directors; there are no non-executive directors. There are none from outside who would introduce a different perspective to the agency, a normal feature in business generally. Some people serving on the board as non-executive directors would come in from outside once a month or whenever, and would take a more detached view of the business and/or agency and its activities than the inbred view of those who serve on the board full-time.
Will the Minister consider on Report Stage making some provision for additional non-executive directors?
At the risk of trespassing on your good nature, Sir, I must say I too am surprised that amendments Nos. 55 and 56 were ruled out of order. I might point out that a similar technical amendment to No. 55 was debated in the other House. Notwithstanding that a general point should be made in relation to the principles involved. We had a long debate on the timescale for the enactment of this Bill on having the agency up and running. I do not intend to cover the same ground now, but it is incumbent on the Minister of State to give the House an indication that she wants to have the agency up and running within a clearly defined timescale. While three months after the passing of the Bill would appear to be a very reasonable time for its establishment we have already had discussions in relation to preliminary work continuing. I am sure the Minister wants the agency up and running with the greatest possible speed but that should be made abundantly clear.
In relation to the number of directors of the agency, perhaps it is difficult and/or dangerous to specify a number. It might be better not to specify any number but to state such number as may be deemed appropriate by the director general. That would allow a level of flexibility.
The most important issue that arises under this section is the necessity for a clear statement by the Minister that she wants this agency up and running. That is essential, if only for those people who worked so hard on the preparation of this Bill in recent years. I might remind the House that I quoted from the programme of the Green Presidency, in the dim and distant past.
Like other Deputies, I am amazed that these amendments have been ruled out of order. I do not want to repeat what Deputies Gilmore and Howlin said about the urgency of having this agency established and operating. It is amazing that these amendments can be deemed to involve a charge on the Exchequer. I echo other Members' views that it is most important to have the agency established and operating as soon as possible.
That amendment No. 56 was ruled out of order is amazing because there is nothing in the Bill to indicate what will be the level of remuneration of each director. For example, had it been stated in the Bill that each director shall be paid, say, £5,000 or £50,000 per annum I could understand that any increase in the number of directors would represent a charge on the Exchequer but there is no indication that this would involve any such increase. For example, the Minister might well decide to have seven directors, pay them £200,000, which would be the same as would have been paid to, say, four directors.
This ruling is being extended beyond what is reasonable. We need to be very careful of the constant refrain in this House, the amendment is out of order in that it would involve a charge, or potential charge, on the Exchequer. That is very dangerous. We need to watch it very carefully.
I intend to table amendments on Report Stage on the commencement procedures we discussed. Therefore it follows, in relation to the appointment and establishment of the agency, that we would discuss this again on Report Stage. I wish to make it clear that it is my intention to have this agency established this year. On the assumption that this Bill is passed by this House by Easter, then returns to the Seanad for another short debate, it is the intention to begin recruitment immediately thereafter of the director general and other directors.
In relation to Deputy Jim Mitchell's comments, obviously I gave much consideration to the size of the board, composed of a director general and four other directors. It was something on which I took much advice. I should add that always it was the intention to have an executive board. Given the functions this agency will have to perform I do not think it advisable to have non-executive directors serve on the board although I accept that in many State companies and bodies non-executive directors do outstanding work. Generally the day to day running of those bodies is left to the chief executive and his or her staff — I do not know whether there is any woman chief executive.
Indeed, non-executive directors, on many occasions, take a mere passive interest in the activities of boards since they will have other full-time jobs, which is understandable. That would not be desirable in the case of this agency which will not have representatives of particular interest group serving on the board. Rather the board will be composed of professional people with the necessary expertise to undertake a very complicated and specific task, particularly in relation to licensing. In addition, the drawing up of codes and practices will require the director general, and other directors, to understand the very technical and professional advice given them by their staff. Therefore, it is desirable to have a small board of directors of five members. Obviously, they will be fulltime executive board members. Invariably they will be a management board. In my experience, the smaller within reason a management board are, the better. Larger boards tend to become unnecessarily bureaucratic and cumbersome and do not necessarily perform their role in a clearly focused way. There may be too much divergence and difficulty if there are too many people on the board. I believe we have picked the optimum number. However, when one picks the figure five it can always be debated that the number should be four or six. It was decided to have five members, four directors and one director general, as it was thought this was a good number.
Deputy Mitchell was concerned about the role of outside people. I share his concern. There is a role for an advisory body. The purpose of having an advisory body is to ensure that advice will be available from representatives of environmental organisations and other professional groups who have an interest in environmental matters from either a non-governmental organisation point of view or a professional interest point of view. They will be involved in the activities of the agency, give advice and direct the agency. They will bring to the agency an outside view of how they should perform their function and what the relevant issues are. They will also act as great educators and informers of what the agency are all about. They will act as a link between the public generally and the full-time executive board and staff of the agency. I believe we have picked the most desirable framework — an executive board and an outside advisory body.
When they are fully operational the agency will have a fairly large staff of professional people working throughout the country. While the staff will have the task of carrying out much of the day-to-day work of the agency, the board, based on the advice they receive, will have the duty of making the overall management decisions in relation to such issues as licence applications, how certain functions should be performed, advising Ministers, codes of practice, etc. For example, An Bord Pleanála, who deal with approximately 3,000 applications a year, have six members on their board. When this agency are fully operational in terms of their licensing activities it is envisaged that they will licence approximately 1,000 activities. They will also have to monitor the licences thereafter. In regard to their other activities, such as drawing up codes of practice etc., while obviously the board members will be involved in this work, much of the work of the agency will be done by the staff on the ground. The Government are committed to ensuring that the agency have the necessary resources to enable them to do this work.
Deputy Gilmore asked about resources for the agency. This year's Estimates provided for a sum of £710,000 to enable the agency to start up. Work is already under way in regard to some preliminary matters to ensure that the agency, on establishment, will be able to begin their work immediately and in particular ensure that regional laboratories have the proper facilities. Work is already being carried out in respect of some matters.
I believe we are correct in providing for a director general and four directors. I want to assure the House that the Bill will come into operation as quickly as possible. Some amendments in this regard will be put down on Report Stage. Obviously, a person who is appointed to the board may have to give some notice to their current employer. Normally a month's notice is required. We have to take this into account in advertising and recruiting the director general and the four directors. There are two separate procedures involved. The director general will be recruited first and then the directors will be recruited. The reason they are not being recruited together is to ensure that people who apply for both positions will not damage their chances of being recruited for the post of director general merely because they showed their willingness to be a director. Therefore we separated the procedures. While this means the time limit of three months may not be met, perhaps we can meet a time limit which is close to it. On Report Stage we will be discussing appropriate commencement dates for the various Parts of the Bill.
I move amendment No. 57:
In page 17, subsection (1), lines 26 and 27, after "Government" to insert "with the approval of both Houses of the Oireachtas".
The purpose of this amendment is simply to require an affirmative vote of the Houses of the Oireachtas to the appointment of the director general. The appointment of the director general by the Government is not acceptable or democratic. Once the Government nominee is decided upon the Members of the Houses of the Oireachtas should be entitled to voice their opinion on the appointment. This mechanism would enhance the democratic process and ensure that the best person will get this very important job.
This House should have the final say in the appointment to the very important post of director general. If I recall correctly, the appointment of the Ombudsman was approved by the Oireachtas. If I am wrong, I stand corrected; but, if I am right, this sets a precedent. Even if I am wrong, I still maintain that this appointment should be approved by both Houses of the Oireachtas.
I cannot accept this amendment as I do not believe it is desirable. I gave much thought to this matter when the Bill was being framed. A similar discussion was held in the Seanad. If we were to adopt this procedure, which is not followed in the appointment of other officers to State bodies, the Director of Public Prosecutions or the chairman of An Bord Pleanála——
More is the pity.
——there would be a bias in favour of high profile individuals. If the Members of this House were to debate the appointment of someone who is unknown to them or someone with whom they had no contact, they may not be in a position to make the correct appointment. Only a selection board with the assistance of a professional recruitment body would be in a position to assess qualifications, having met people on a number of occasions. In addition to the qualifications, the interview process is also important.
Deputies would not be familiar with what went on at interviews or the track record of individuals who may be seeking appointment as director general or a director. How could they be familiar with such issues? Would they expect someone who seriously wants to be director general of this agency to go around lobbying politicans? This would be highly undesirable. If this process were followed many people who would be interested in this position may not consider themselves suitable to be involved in a political process. This process would be distasteful to many people and they may not wish to engage in it. We have seen some awful examples of the consequences of such a process in the United States. It would be undesirable for the political process to be involved to that extent in the appointment and recruitment of professional fulltime people for the Civil Service, the semi-State sector, the agency and other State bodies of this kind.
Deputies will probably tell me that all they would need is a brief summary of a persons' qualifications and they could make a judgment on that basis. It is often assumed for positions of this kind that the person you know best or the person with the highest profile is the best person for the job. I have no doubt that some high profile individuals may be interested in these positions, but it does not necessarily follow that they will be the best people for the job. Therefore it is inappropriate to drag into the public arena a debate on the particular merits or otherwise of persons to be appointed to these posts. Obviously, such a procedure would lengthen the process for recruitment. For example if, as I envisage, the members are recruited during the summer, the appointments could not go ahead until the Dáil resumed after the summer recess. This would lead to further delays. I am not just giving this as an excuse; invariably, this is what would happen.
My main objection to the amendment is that it would politicise the process and prejudice the agency's ability to stand as a credible independent body. If two parties in the House found a particular appointment acceptable but other parties did not, this could totally politicise the individual. For example, if the Government and one of the Opposition parties favoured Mr. X for appointment as director general but two other parties favoured Mr. Y, how could we expect Mr. X to function as a totally independent person, having been opposed by two parties and a number of individual Deputies? It is not appropriate, on balance, to go down that road and I regret, therefore, that I cannot accept this amendment.
As it is now 12.30 p.m., I am required to put the following question in accordance with the order of the Dáil today: "That the amendments set down by the Minister for the Environment to section 21 are hereby agreed to and that section 21, as amended, is hereby agreed to".