Amendments Nos. 76 and 77 are cognate, amendment No. 78 is related. All may be discussed together. I call on Senator B. Ryan to move his amendment.
Environmental Protection Agency Bill, 1990: Report Stage (Resumed) and Final Stages.
I move amendment No. 76:
In page 55, line 25, after "1987" to insert "; where no standard is specified, emissions shall a least comply with the most stringent standard specified by any member State of the European Community".
These three amendments fit logically together. I quoted somebody from the IDA yesterday who was talking about the highest international standards. I then read, in the reports of the debate on this section on 10 May, that the Minister was somewhat taken aback at the idea that we should operate to the highest international standards. What I am suggesting here is that where we do not have a national standard or an EC standard for an emission, we should look to the standards that are specified within the European Community — the highest standards. What we are trying to do is not to make sure we do not get as bad as some of the environmental black spots in Europe, but to make sure that we stay the way we are and deal with the limited — at this stage — problems in terms of air and water pollution. I deliberately kept it within the EC because if we were to go outside the EC I might be landing us with standards of countries like Sweden or Switzerland that are even stricter. I deliberately chose to keep it within the EC because there is some attempt to bring standards into line there.
A small country like Ireland with limited resources will not necessarily always be able to keep up national standards for emissions of potentially polluting material because there are thousands of chemicals whose precise toxic effects are not yet known. I was quoting from an OECD report there. It is also the intention of the OECD that information assembled in one country about the toxic effects of a substance should be acceptable in other countries without everybody having, metaphorically speaking, to rediscover the wheel about every single substance. Therefore, it seems that where we do not have national standards about the emission of a particular substance into the air, water or into an environmental medium, then the reasonable thing to do is to look around and see what are the highest standards specified in any EC country. We must then say, those are the standards that have to be met in this country.
I know the Minister's answer because I read what she said on Committee Stage which, is that some parts of the EC have very serious environmental problems and they have to specify very stringent standards. I do not think that is a particularly logical answer. What they are trying to do is to bring themselves back closer to our current condition. We want to maintain our environment in that condition. They have identified a level of emissions which is necessary to restore their quality to the quality we have. I cannot see why not to maintain our present standard we must look to their standards and maintain them. Let it be clear that there will be a possibility of industries relocating out of areas of the EC where these extremely stringent standards are specified to this country because we are more relaxed in our standards. That is essentially what the Minister is saying. If we do not insist on the highest standards that operate within the EC, we will become a dumping ground for what are relatively dirty industries. They will move here because we are not prepared to insist on the standards their original host country insisted upon.
We must use the assembled national expertise. That means that where we do not have a national standard for an emission we use the most stringent that is specified within the European Community. Hopefully, in the long term, the European Community will specify standards for every emission. Given that there are thousands of chemicals and that many of them may be specific industries that are not located in all European countries, the logical thing to do is look around through the European Community for the highest standards and to meet those standards. We want to be both literally and metaphorically the green country of Europe. We cannot be like that if we tolerate lower standards than anywhere else in the EC.
Is there a seconder for the amendment?
For the purpose of debate, I will second it.
Under section 80 (3) as drafted, even if no standards are specified in relation to paragraphs (a) and (b), the best available technology not entailing excessive costs must be used in any emissions from the activity and must not cause significant pollution. These two requirements are broad enough in their application to encompass the basic principle behind the amendments Nos. 76 and 77. Any other all embracing requirement of the type proposed by Senator Ryan would fly in the face of the established decision making process and procedures of the European Community.
To place a statutory requirement on the agency to indiscriminately take on board the highest standards of every member state in the Community without taking into account the circumstances which gave rise to these standards, could place an unjustifiable burden on development in general and on those activities in particular which are licenseable by the agency. These are similar activities in other member states and those activities licensed by local authorities in this country. Pollution problems in other member states are generally more serious than in this country. It would not be uncommon for very stringent emission limit values to be applied on a localised, regional or national basis to restore the environment concerned to a quality which would be similar to that which already applies in this country.
With regard to amendment No. 78, emissions are defined in section 3 to include the disposal of waste. I consider it sufficiently clear that words such as prevent, limit, eliminate or reduce cover the intention of the Senator's amendment. Acceptance of the amendment would alter the definition of BATNEEC as defined in subsection (5) (i) which it has already been agreed. As I said in the debate yesterday and during Committee Stage, the question of waste and the reduction of waste at source is being considered in the context of the waste Bill.
The making of standards is a political issue. Where you set your standards and what kind of resources are to be applied to ensure the standards are met are very much decision and policy making issues. I do not believe it is an appropriate function to give to the agency. If national standards do not exist, then it is the responsibility of the Minister or Government of the day to make those standards. It is not the responsibility of an agency of this kind to set or make national standards. This is not a policy making agency. It is, to a large extent, an environmental police force ensuring that standards that exist are implemented and enforced on a uniform and even basis.
The kind of standards to set and at what level they should be set is very much a political issue and one that must be made by the Government of the day. Standards have a lot to do with the capacity of the environment in a localised area to absorb certain things. What might cause pollution in one area because of the capacity of receiving waters, or whatever, might not have the same effect in another area. It very much depends on local circumstances. Therefore, it would not be appropriate to give the function suggested in these amendments to the agency.
That is among the more disappointing replies we have got from the Minister in the course of this debate. Is she seriously suggesting that those European countries in the EC who have what she apparently believes are excessively stringent standards by Irish standards are somehow, when they clean up their environment, going to relax those standards? She really must be codding us. There are parts of the EC that have very stringent emission standards. They have succeeded in eliminating a pollution black spot. They are not going, because their own public opinion will not allow them, to reduce those standards to allow a higher level of emissions so that we can have something called an "acceptable level of pollution" or contamination. That is not going to happen. If standards are being set which are very rigid and stringent in parts of the European Community, they are going to stay there forever. The Minister has given us a less than convincing argument here.
Of course, I would prefer to have national standards and I would prefer our national standards to be the most stringent in Europe. That is what we are supposed to be about in this country. If we do not have the resources, the time or the political priority given to the setting of standards, then surely it is reasonable to tell the Environmental Protection Agency that if the State has no standards set then you look to the larger political grouping — the European Community, and see what the people in Europe who, unfortunately, have more experience of pollution have specified and we accept those standards. There is no logic to the suggestion that somehow we can tolerate higher levels of emissions of polluting substances than anywhere else in the EC. That is a recipe for trouble down the road.
The whole concept of the capacity of nature to absorb particularly non-biodegradable chemicals for instance or heavy metals, is not fully understood. Let us remember there are thousands of chemicals whose toxicity nobody fully understands yet. As I said earlier in this debate, I was at a conference in Germany three years ago in which a very eminent German academic said that of the list of toxic substances they had identified in Germany some 25 per cent were carcinogenic. This was three years ago and he expected that within another three or four years they would identify another 25 per cent of that same list as being carcinogenic. The trouble was he did not know which 25 per cent would be so identified. In that context, it is close to being irresponsible to suggest we can wait until we get around to specifying national standards rather than rely on the study, wisdom and expertese of other countries. They have learned the hard way to impose very stringent standards.
As I said earlier, this is one of the areas where the line a certain executive of the IDA quoted about "an acceptable level of contamination" is being fed to the Minister. Unfortunately, she seems to have been persuaded by it. It is this whole implausible concept, that there are little pockets of severe pollution and that if they were a little bit less polluted everything would be all right. People set standards because things do harm. They set standards to ensure that no further harm is done. If something has done the sort of damage the Minister is talking about in her reply, we have good reason to be wary about such a substance and not to get ourselves involved in an implausible argument that because they say 20 parts per million and we are not as polluted as they are then we can say 100 parts per million. That is illogical, nonsensical and extremely short term. If it comes to the extreme position, we may well be involved.
The Minister says BATNEEC is enough to deal with it. BATNEEC is the best available technology not involving excessive cost to do a number of things, among them being "to reduce". No European country will specify a standard of emission that cannot be achieved by the best available technology not entailing excessive cost because they are not going to close down large parts of their industry overnight. If they have specified a standard it must mean that there is technology available to achieve it. What we are actually saying is that if we are not prepared to accept the standards they have specified then we are prepared to accept less clean technology and more polluting technology than they are prepared to accept. We actually get involved in the sort of argument that I took the other side on about excessive costs. What we are actually saying is: we will tolerate something less good than our counterparts in Europe will tolerate.
I am very disappointed with the Minister's reply. I did not necessarily expect her to accept the amendment but I thought there would be a better case to be made than that for not accepting it.
Is amendment No. 76 being pressed?
I move amendment No. 81:
In page 57, line 3, after "Part" to insert "shall endeavour to minimise or eliminate emissions from the activity and".
To a certain extent I am coming back to something that arose in our previous discussion. When one is dealing with somebody learning about the processing industry, hazard elimination, hazardous substances and hazards generally, the basic rule of thumb is that the best way to deal with a hazard is to eliminate it. The second best way is to control it and the third best is to protect people from it by such things as protective clothing.
Under section 81 conditions are attached to an integrated pollution licence. My amendment says that without prejudice to the generality of section 81, conditions attached to a licence or revised licence granted under this Part shall endeavour to minimise or eliminate emissions from the activity. This is not waste. This is the process. I invite the Minister to read an article published in the OECDObserver in March 1987 on the question of clean technology in which, ironically, it turns out that in many countries in the EC it is more difficult for an industry to innovate in terms of clean technology, for example, waste minimisation, than it is for them to produce end of pipe solutions. Governments and regulatory agencies have got so hung-up on pollution prevention technology at the end of the pipe, whether it is filtration, scrubbers or whatever, that they are not prepared to look at the real, ultimate solution which is to change the process so as to eliminate the potentially pollutant material.
What bothers me about this legislation is that the agency responsible for protecting the environment is being directed all the time towards end of pipe solutions. Separate legislation to do with waste management will not change that. My amendment suggests that the over-riding guidelines presented to the Environmental Protection Agency would suggest that at all times it should endeavour to minimise or eliminate emissions from the activity. It does not mean they have to minimise or eliminate them. It simply means that their guiding philosophy should be, where technically possible, not to look simply to the end of pipe solutions, scrubbers, filters or incinerators but to eliminate waste at the start.
I repeat what was said at a conference jointly organised by the Institution of Chemical Engineers and the Federation of the Irish Chemical Industry: waste is not disposed of simply by changing the way it is dealt with. For instance, diluting a toxic substance does not dispose of it. Dilution is not the same as elimination, neither is turning a gas into a liquid, for example, by scrubbing a gaseous emission and producing liquid waste instead. You are not eliminating the waste; you are simply converting it from a gaseous pollutant into a liquid pollutant which still has to be disposed of. If you attempt to incinerate the material, you end up with ash which is potentially hazardous and has to be dealt with somewhere else. You may concentrate it, you may change its nature, but you are not eliminating it. The only way to eliminate waste is by changing the process itself.
As I said, the OECD concluded that, notwithstanding their good intentions many Governments are inhibiting the movement of industry towards clean technology because of their single minded obsession with end of pipe solutions. The pollution control industry would not be too keen on clean technology because then the need for them would be eliminated.
Amendment No. 81 simply states that while they are doing all the things that this legislation requires them to do, their philosophy will be to minimise or eliminate waste emissions from the activity. That is the way to go in the future. The amendment directs the agency to look towards innovative ways of dealing with pollution rather than the old ways which were based on end of pipe solutions.
I second the amendment.
I do not disagree with what Senator Ryan said but it is more appropriate to a waste Bill. To suggest that any provisions in that Bill cannot be implemented by the agency is wrong because the agency has to work within the existing legislative framework. The question of waste minimisation at source, changing of processes and so on, is being considered in conjunction with the drafting of new waste legislation which we hope to have later this year or early next year.
The concept of BATNEEC is mentioned in section 80 (3) of the Bill where it states that the best available technology is to be used to prevent, limit, eliminate, abate or reduce any emissions from the activity. It is not true to say that it is simply an end of pipe solution.
I read part of the study the Senator referred to and I have read some of the findings of the United States Environmental Protection Agency. If you want to reduce the level of pollutants in the atmosphere the most effective way is to try to reduce it at source rather than deal with it later. The director general of the United States Environmental Protection Agency called it the strategy of the cork. It is ludicrous to think that simply by putting a cork at the end of the pipe you can prevent pollution. There would not be enough corks. They have proved in the United States that the way to go is to prevent the generation of the emission at source. That is our thinking on the waste Bill.
What the Senator is arguing for is covered under section 80 (3). There are six criteria the agency has to take into account in deciding whether to grant a licence. The question of preventing, limiting and reducing, which I very much favour, is part and parcel of what the agency is required to do in relation to any emission and in specifying the technology.
I am aware of the Senator's interest in clean technology and I know the efforts he has made in relation to developments in Cork, by which I am very encouraged We must encourage the use of clean technology. That is the way forward. However, I do not believe it is appropriate to introduce provisions of that kind here. What was said by Senator Ryan is covered by the existing provisions in the Bill.
Not surprisingly, I do not agree with the Minister. I thank her for her kind remarks but I have no professional involvement in the clean technology unit. Two of my colleagues are involved in it and I have a considerable interest in it. I am not accusing the Minister of bad faith but she is misrepresenting the Bill when she suggests that what I want is covered. Section 80 (3) (f) states the best available technology not entailing excessive costs will be used to prevent, limit, eliminate, abate or reduce. It does not suggest that one is better than the other. It suggests that prevention and limitation are identical, equally acceptable options, it suggests that elimination or reduction are equally acceptable options. The point I have been making and which the Minister has just made is that prevention is best. This Bill does not make clear that the preferred option, the ideal option that should be looked for all the time, is prevention. There is considerable evidence that, even if you impose stringent emission requirements, stray emissions, accidental emissions, leaks, etc., will allow as much pollution material into the atmosphere as the official emissions themselves. This can often happen. No process is perfect or ideal. There are always minor problems. It is extremely difficult to deal with the problem of stray emissions. The Minister's analogy is perfect. You cannot find a cork to fill every hole. The only way is prevention. This Bill, as it stands, does not point towards prevention and elimination of waste as the preferred option. Therefore, I cannot but insist that the amendment be put.
I move amendment No. 93:
In page 66, between lines 32 and 33, to insert the following:
"(3) The Minister shall, by order, require that any process, development, or operation not specified in the First Schedule, or any process, development, or operation specified in the First Schedule but below the threshold size, located in, or to be located in an Area of Scientific Interest, or adjacent or contiguous to an Area of Scientific Interest, shall be licensable by the Agency, subject to an Environmental Impact Assessment, in consultation with the Minister with responsibility for the Office of Public Works.
(4) A licence under subsection (3) shall be granted only in cases where it can be demonstrated that the process, development or operation will have no negative impact on the integrity of the eco-system of the Area of Scientific Interest, its flora and fauna, or in any other feature by reason of which it is of scientific interest.".
I second the amendment. Senator Doyle spoke to me about this and there is a very convincing case for this amendment in order to ensure that areas of scientific interest or areas adjacent to them are very carefully protected. It is a legitimate extension in the area of special cases under section 92.
What the amendment is saying is quite simple: if there is any kind of a development near an area which has been designated an area of scientific interest, then the agency should always be consulted. That is perfectly reasonable. It is consistent with the idea of designating an area as an area of scientific interest because what might be acceptable either in terms of the process or the scale of a process in other areas, could well be a serious threat to an area of scientific interest. I invite the Minister to accept this amendment or, alternatively, to explain how she proposes to keep areas of scientific interest as very special areas requiring particular sensitivity.
Lists of areas of scientific interest have been compiled by An Foras Forbartha and more recently by the Wildlife Service of the Office of Public Works. Many of them, as the Senator knows, are not statutorily designated and I understand that further legislation in this area is being prepared. It would be premature to introduce such a blanket prohibition on any negative impact on a listed area.
The provisions of section 92 are adequate to meet the Senator's concern in that any process, development or operation not listed in the First Schedule may, by order of the Minister, be made licensable by the agency. One of the criteria listed under section 92 (2) is location or the quality of the environment in the area in which the process, development or operation will be carried out. In addition, there is already adequate provision for amending the activities listed in the First Schedule subject to the approval of both Houses of the Oireachtas.
Regulations made by the Minister under section 77 could require that the agency would consult with the Wildlife Service of the Office of Public Works who have statutory responsibility in this area in relation to the protection of habitats, and flora and fauna when considering applications for licences.
I move amendment No. 97:
In page 71, lines 14 and 15, to delete "may, at any time, and shall when requested by the Minister to do so," and substitute "shall".
I second the amendment. It is difficult to understand why this amendment cannot be accepted. We are back to the long argument we had last night about the words "may" and "shall". Section 100 of the Bill deals with emission limit values and quality standards. The section reads:
The agency may, at any time, and shall when requested by the Minister to do so, make recommendations to the Minister in relation to...
Senator Doyle's amendment seeks to substitute "shall" for the word "may". It seems that an activist, i.e. proactive as distinct from reactive, Environmental Protection Agency would be vigorously lobbying the Department of the Environment to ensure that standards were specified in all sorts of areas. Of course, if the Minister asks them they have to produce recommendations. Equally we should say to them that if a Minister is less diligent in this area than some of his or her predecessors, it is still the job of the agency to specify national standards. For instance, if the Environmental Protection Agency assembles a large data bank of information one of its obligatory responsibilities ought to be, as a matter of course, to advise the Department of the Environment. All the amendment essentially says is that the agency shall make recommendations to the Minister consistently about emission limit values and quality standards.
As Senator Ryan said, this goes back to a debate we had many times during the discussion on this Bill on Committee and Report Stages. It is desirable that the agency would make recommendations to the Government and the Minister of the day in relation to emission values and quality standards. That is good but the difficulty is that when we make this mandatory, the agency is under an obligation to start making recommendations. This is one of the areas where it is probably desirable to keep the matter at the discretion of the agency. This agency will have a mammoth task to perform, particularly in its infancy. In its first two or three years of its existence it will have an extensive and comprehensive job to do, particularly in relation to the operation of the integrated pollution control licence. Therefore, as many additional functions as is necessary should be at the discretion of this professional expert body.
We must have some faith and confidence in the agency and allow them to have a programme of work based on the priorities as they see them. Although the agency should make recommendations in relation to emissions or quality standards, the making of the recommendations will in itself do nothing to establish standards. It is still a political function. I do not want to see the agency just involved in doing things that in themselves cannot lead to improvements. If any of these standards were to come into effect the Minister of the day would have to make regulations.
Changing the word "may" to "shall" does not do anything to make these things happen. On the contrary, it puts another duty on the agency and I am not sure that it is good for the agency. It will be snowed under what will largely be a bureaucratic task if mandatory functions are put there that simply have to be done as a matter of course and as a matter of law. This is one of the sections I would prefer to see left as one of the discretionary functions of the agency.
There is a reluctance to accept that this agency will be credible, have expertise and be concerned with establishing its own good name and ensuring that so far as it can, high environmental standards apply, and so win public support, credibility and public confidence. The agency will try to prioritise its work in such a way that it deals with the most urgent and important tasks first. If the agency is required to do a host of mandatory tasks that in themselves do not achieve anything because they require political decisions to put them into effect, we would have an agency that is merely advisory and does not have the kind of clout and teeth we would wish. While there were other areas where I was prepared to concede "shall" to "may", this is not an area where it would be desirable to do so.
Amendment Nos. 98 and 99 are related and may be discussed together.
This amendment is in response to amendments proposed on Committee Stage when I undertook to consider amending the Bill on Report Stage. My amendment applies the substance of Senators Doyle and Naughten's amendment.
We are still stuck with this mysterious phrase "have regard to" which I think not even the Minister is entirely sure what it means but I am not blaming her for that. I do not think the parliamentary draftsperson knows but they have used it all their lives so they are going to keep on using it.
I do not think the Minister has to ask the agency for an opinion on standards. Let us consider, for instance, the situation that developed in the United States in the early years of the Reagan administration when the environment became singularly unfashionable and the last thing people who were put in charge of the Department of the Environment wanted to do was enforce rigorous environmental standards. Federal funding for environmental protection dropped quite dramatically and the United States will have to live with the consequences for the next 50 years. If that were to happen here does the Minister have to consult the agency before he or she specifies standards? It does not seem to me that is the case. If the Minister does not bother to tell the agency he is considering standards, since the agency does not have to make recommendations consistently it looks as if the Minister will have to have regard to any relevant recommendation made by the agency. If the agency has not made any recommendations the Minister can make his or her own standards without reference to anybody. Since the agency does not have to make recommendations on a regular basis and the Minister does not have to consult them, the legal position is a little dubious. It is only a small point and I will not hold the House up on it. I am glad at least we are consistent in "having regard to" everywhere rather than "consider". I would love sometime over a pint to discuss with the Minister the difference between "considering" and "having regard to".
I move amendment No. 100:
In page 76, line 19, to delete "may" and substitute "shall".
I second the amendment.
This is an amendment the Minister promised us on Committee Stage but did not get around to. It has to do with one of the most crucial aspects of this Bill and that is access to information on the environment. The Minister's earlier amendment made it clear that Part IV and this section will come into force immediately after the passage of the Bill but that will not make it one bit more obligatory on the Minister for the Environment to make regulations for access to information on the environment. When we discussed, in my view, the hopeless provisions of section 38 — I stand over my view that section 38 is one of the more appalling sections of the Bill, disappointing in its obsession with secrecy — we got a commitment from the Minister that on section 107 she would not have discretion on the issue of making regulations about access to information but would have an obligation. That would simply require that the word "may" in section 107 would be substituted by "shall" so that: "The Minister shall, following consultation with any other Minister of the Government concerned and without prejudice to any other provision of this Act, by regulations provide for the making available by public authorities of information relating to the environment to any person or persons upon request". There is a legal obligation on the Minister anyway as a result of the EC directive on freedom of information on the environment.
I am somewhat surprised that the Minister did not put down an amendment. Maybe she was trying to leave us with the glory of having an amendment accepted. She committed herself on Committee Stage to substitute the word "shall" for the word "may" in this section and I now invite her to accept the amendment.
I share Senator Ryan's point that access to environmental information is very important. I made that clear on Committee Stage. I regret I do not have an amendment, if I promised one, which I accept I did if Senator Ryan is quoting it to me. This is an area which perhaps will have to wait until the debate moves to the Dáil. There are still some matters about which I have to finalise my view. I am sorry that is the case.
I accept many of the arguments made by the Senator. It was not possible in the time available for me to finalise my views in relation to this matter. It is the Government's intention to fully implement into law both the spirit and intent of the directive on freedom of access to environmental information which requires making available to the public, subject to certain restrictions to do with security and trade processes and so, of environmental information held by public authorities. This Bill seeks to lay out details about how that may happen. The Minister would make regulations specifying how that may happen. Although the requirement is not mandatory in the sense that the Minister "may" rather than "shall", it is the intention to introduce this section as quickly as possible because it is desirable in all our interests and, in any event, since it is mandatory it is something we will have to do even if we did not wish to do it.
An environmental information office was opened in Andrew Street or Trinity Street in Dublin and up to recenly that office had about 1,000 visitors a week. There is a huge interest in this subject and the intention is to try to decentralise the activities of the office to make the information as widely available as possible. It is by providing appropriate information that we will make people aware of their environmental responsibilities and duties and of environmental issues generally. It is appropriate that the Government of the day, through a Government service, should provide information rather than have people receive information that might not always be accurate or appropriate.
I intend to have a look at this matter — that may not be acceptable to the Senator — prior to bringing the Bill before the Dáil. That is about the third or fourth time I have said that. It is a complex Bill and I do not think anybody envisages that it will not have to come back to this House. It would be unthinkable that so extensive a Bill could go through either House without being substantially amended. I agree that the more substantial amendments have been done here because the debate was taken here first. We had a very good debate but obviously we will receive and take amendments in the other House too. Therefore, because of the complexity and comprehensive nature of the legislation we will be back here in any event.
That really takes the biscuit. We are not talking about reconciling the planning regulations with the integrated pollution licences which was where the Minister explained, and we were all prepared to be very reasonable, that there was considerable complexity. We are talking about replacing the word "may" by the word "shall". Column 1605 of the Official Report of 8 May 1991 states:
In relation to much of what Senator Ryan has had to say, if he believes that substituting the word "shall" instead of "may" in section 107 will meet some of the requirements and difficulties he has I have no problem giving a commitment to come in with an amendment of that kind before we get to section 107.
We are on section 107 for the second time and the Minister has a problem. I will take some convincing that somebody, somewhere in her Department, is not hostile to the idea of making this mandatory. I know the Minister is not. There is something very funny going on here. This is not complex; this is not difficult. I do not have a Government Department behind me and I was able to sort out whether I wanted "may" or "shall" in this section, and so can this Minister.
This is a very intelligent, capable Minister. I do not know what is going on but it is a most unacceptable reply, a most unacceptable attitude, and it definitely brings a sour taste into this debate that a simple request to substitute the word "may" with the word "shall" in a section which deals with a legal obligation on the Government to operate under the rules of the EC is refused. It seems to me that somebody somewhere is looking for a minimalist approach. It may not be this Minister; I believe it is not the Minister, but somebody, somewhere, is less than enthusiastic about freedom of information and is keeping open options to the Government about freedom of information.
The 1977 Water Pollution Act said local authorities may produce water quality management plans. We are now in 1991, 14 years later, and there are some areas where there are still no water quality management plans. There is goodwill on the part of this Minister but somebody has been meddling with the specific commitment she gave to this House to do something. The one fundamental area where I disagree with this Minister on this Bill is in the appallingly inadequate commitment to freedom of information.
I do not care what she says, this Bill is hopeless on the issue of freedom of information. Section 38 is a bureaucrat's charter. It will protect anything from anybody if the agency wants to do so. It does not contain any constraints other than the provisions of section 107 and we now discover that section 107 will not be obligatory. The Minister is empowered to make regulations if "he"— and may I emphasize at this stage that I mean "he" because I suspect "he" has a hand in this, although I may be wrong — chooses to do so. His commitment to the environment is considerably less than that of his junior Minister. I suspect, therefore, that he has a hand in this.
I ask the Senator to stay on the amendment.
I thought I was, but if you say I was not I will stick to the amendment as well as I can. The amendment would simply make it obligatory on the Minister for the Environment to make regulations to guarantee public access to information on the environment. It would simply say that the Minister has to do what the EC told him to do. Will somebody in this House explain how it could possibly be correct for the Minister for the Environment not to accept in law that he has to do what an EC Directive tells him to do? It makes no sense to me. I am appalled and quite upset at this. I have no option but to push this amendment.
- Bohan, Eddie.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Cullen, Martin.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- McGowan, Paddy.
- Mullooly, Brian.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
- Hourigan, Richard V.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- Manning, Maurice.
- Murphy, John A.
- Neville, Daniel.
- Ó Foighil, Pól.
- O'Reilly, Joe.
- Ross, Shane P.N.
- Ryan, Brendan.
- Staunton, Myles.
- Upton, Pat.
Amendments Nos. 101 and 102 are related and may be discussed together.
I move amendment No. 101:
In page 76, to delete all words after "authorities" in line 22 down to and including "request" in line 23 and substitute "of any information relating to the environment, unless restricted for serious reasons necessary for national security or the protection of a particular manufacturing process or trade secret".
The basis of this amendment is to make clearer yet again what should be obligatory and which, apparently, this Government are unwilling to make obligatory, the disclosure of environmental information and the intent of amendment No. 101 would be to make it clear that information relating to the environment unless restricted for reasons of national security or the protection of a particular manufacturing process or trade secret, would be made available. That is perfectly reasonable and is essentially the intent of the EC Directive on freedom of information on the environment, that matters of national security and equally significant matters should be protected. The trouble, of course, is that the secretive mentality in this country, eloquently demonstrated by the refusal of the Government to accept the change from "may" to "shall" on the previous amendment will extend quite clearly to the question of the environment to anything that is awkward or inconvenient. I am enthusiastically moving Senator Doyle's amendment now because I no longer believe that the Government share the view of the junior Minister for the Environment on the freedom of information on the environment, and that we are going to have the continuing saga of suppression of difficult information, and of delays in providing the regulatory mechanisms.
It is all very well to have a beautiful well furnished office in the centre of Dublin providing the information on the environment that you want to make available but it is another thing to give the people a guarantee of availability of all the information on the environment, irrespective of whether it is nice, convenient, whether it is good for the Government's image or for the image of a particular industry in a particular area. We will be back to the Cork County Council syndrome where they will not tell you anything unless they are actually obliged to do so. Cork County Council told various environmental groups that since they were not obliged to do certain things they would not tell them anything. They would not let them have copies of environmental impact statements because of the problem of copying an environmental impact statement. They would not let people have information about Cork County Council's views on appeals about air polution licences because they did not think people were entitled to it. When you have that sort of mentality and that attitude displayed on the last amendment, then it becomes necessary to move from good intent into specifics.
I second it.
I fully support what Senator Ryan has been saying and as one who participated fully on the Committee Stage of this Bill and who was impressed by the co-operative spirit then apparently prevailing and by the Minister's apparent understanding of our wish expressed on many occasions that freedom of information should be improved, I must echo Senator Ryan's sense of disenchantment and particular indignation that a promise explicitly given should have been welched on.
I too support both amendments, I am at a loss as to what words "any available information" mean? Available to whom? Why does it have to be put in there, or does it suggest that it will be available to those who want it to be available and accordingly that they will be able to exclude things simply because they do not want to know about them or because they take care not to make the information available to them? I would have thought that the information, if it is there, is there on a broad basis and that the use of that term, to my mind, means nothing at all.
In relation to the broader question of the information, I think this country, over the years, has ridden with what one of the American's call this anxiety for the promotion of the climate of secrecy, the climate of suppression. I find that very unacceptable. Most people in this country suspect the worst in those type of circumstances and I think, we would be all far better off if there was a degree of frankness and openness with the public in relation to environmental matters, and indeed in relation to most other matters. It is a pity at this stage of the Bill that we are drifting back towards that mentality and it is a pity that those elements who remain very powerful are able to, at this stage, make their point of view and exert their influence in relation to the provisions of this section which I think are very much to be regretted.
To deal with Senator Upon's point about "available", obviously if something is not available one cannot have it but I accept that one cannot use the availability clause as an excuse not to give. For example, I would like to know how much toxic or hazardous waste we generate in Ireland at the moment but we do not have available information, it does not exist. There are lots of gaps in our information process that need to be filled. The directive, for what it is worth and I quote from it, refers, and it is the intent of the Government, to the Government fully implementing the objective into Irish law, and article 2 of the Directive that it proposed to be introduced says:
For the purpose of this Directive
(a) information relating to the environment shall mean any available information in written, visual, oral or data based form on the state of water, air, soil, fauna, flora, land natural site...
It goes on in that vein. Obviously the intent is to make any available information available to the public in a simple and appropriate form as possible. Obviously one has to have exceptions — national security was referred to. There is the protection of trade, of manufacturing processes, draft documents that have no kind of legal basis, documents relating to personal data or perhaps documents referring to forthcoming prosecutions or whatever. There will have to be exceptions of that kind but it has to be the exception rather than the rule.
I very much favour making available as much information as possible. I have no more to add to this than I have said on the last occasion. I am sorry if Senator Murphy is not happy with that; perhaps I am not too happy with that myself. What is important is what is implemented when this Bill is passed and while this Bill will, hopefully complete its initial passage through this House today, it still has a long process through the other House and will obviously have to come back here if it is amended there, which I envisage it certainly will, and what is important is what happens. I believe in making things happen and one has to use the best process and procedure to ensure that that is the case. I have nothing further to add than what I said earlier.
I accept much of what has been said by Senators. It is important that we, as of right, make information available to people, that we do not continue with the national paranoia that people have no right to know. We all act on behalf of the public at large and we have no right to save to ourselves certain things that have no reason to remain confidential. In the case of a number of things that are regarded as confidential or that are not regarded as the right of the public to know, it is more to do with historical precedent than with reality because in many cases there is absolutely no reason the information could not be made available. I share the views of Senator Ryan. I think where information is made available, particularly in relation to the environment, it acts far more in the interests of those who make it available than it does against their interests. It is the lack of information and the withholding of information that have caused many environmental problems particularly as he referred to in the Cork region. Where people are refused this information they perceive a problem even where there may not be one. It is in all our interests — in the State's interests, in the interests of local authorities and in the interests of commercial, industrial and private concerns to make available as much information as they possibly can, subject to the very strict exemptions that have to do with commercial trade, manufacturing processes, security or something of that kind. Other than that I think, as of right, if people want to know they should have every right to know. That is my philosophy and one I hope will be introduced as quickly as possible into the legislation of this country.
Is amendment No. 101 being pressed?
Senator B. Ryan rose.
Forgive me Senator Ryan, I do not wish to take away your opportunity to speak but strictly speaking, this amendment is tabled by Senators Doyle and Naughten. Senator Naughten, are you yielding to Senator Ryan on this?
I wish to speak on it.
Only the proposer has the right to reply but I would like to give Senator Naughten the opportunity to speak.
I am happy to let Senator Naughten speak. Senator Naughten was in the Chair and there was nobody here to move the amendment.
Could we have Senator Naughten speak and then the proposer reply?
Senator Ryan moved this amendment which was in my name and that of Senator Doyle. What we want to try to achieve is the fullest information possible for the general public. I accept the point made by the Minister. What we have to do is get the right balance. That is very important. I do not believe it would be in the best interests of this country to go overboard. It is very important that we do not create an environment here in which industrialists, for one reason or another, are afraid to apply for permission or, indeed, afraid to come here, but it is equally important that whatever information is available is made available to the general public, because very often fear of the unknown starts scares and rumours. It is important that whatever information is available should be made available to the public, except in the cases clearly stated in amendment No. 101.
It is important that we strive to achieve the right balance so that we will not deter industrialists from setting up here. At the same time it is of vital importance that we protect our environment and that our industry be clean. All information should be made available to the public except where it affects the national interest.
The Minister did not say whether she was accepting the amendment. The freedom of information spirit of this Bill is now in question as is the commitment of the Government as distinct from the Minister on this issue, and the Government's philosophical acceptance of the freedom of information principle. If a Government is unwilling to make it legally obligatory on itself to do what it is legally obliged to do by the EC, it suggests fundamental double standards. We are not asking them to do something extraordinary but to make a legal commitment to do what they have to do anyway. When a Government backs off such a legal commitment there is good reason to be profoundly suspicious about what they are at. I predict that when or if the regulations are produced — I am more inclined now to be disposed towards "if" rather than "when" than I was half an hour ago — they will contain something very similar to what is in the EC Directive on freedom of information, but with a little tail on it saying what can be withheld, such as "any other information which the Minister deems not to be in the public interest to make public".
One of the fascinating things one discovers after being in public life for ten years is that everything that is deemed not to be in the public interest to be revealed is usually the sort of material that the public are most interested in. What is deemed not in the public interest is usually what the public have the greatest need to know about. That is to be found in the National Archives Act and elsewhere.
This amendment would endeavour to put into our legislation the conditions contained in the EC Directive on freedom of information and no more than that. It would protect national security and the secrecy of processes. It needs to be said that the United States — other people in this House are perhaps more attached to it than I am and many see it as the model of where we should be — have extremely stringent freedom of information legislation under which governments cannot arbitrarily decide they will not make information available; it can only be refused subject to appeal by the courts. The courts have access to all the documentation; the State cannot withhold information of any kind from the courts. The courts then read that information and decide whether sections of it are covered by the exemptions in the Freedom of Information Act.
I predict that we will not be given such a right by this Government and that the final arbiter will be the Minister. The Minister will decide what is good for us, what we are entitled to know and not to know. All the procedures about appeals under this section will rest on his desk. The cult of secrecy, the philosophy of only letting them know a bit so that they will be more likely to take our point of view, has created serious conflict in the part of the country I live in — I was going to call it my part of the country but Senator Murphy is very sensitive about phraseology like that — the part of the country that accepted me as an immigrant——
I want to welcome him into plenitude of "Corkness".
I and many other Members have a serious doubt about the commitment of the Government to freedom of information on the environment. My concern is not only for the philosophical point about freedom of information but for the possibility of creating a climate in which we can have real environmental protection and industrial development. We are going back rapidly to the position we were always in where what was difficult was withheld. The Minister has done nothing in her last two replies to convince me that she is in charge of this area of environmental protection.
Amentment, by leave, withdrawn.
May I compliment the Minister for the spirit in which she dealt with most of the Bill but something seems to have happened in a couple of areas. I will confine myself, as I am required to do, to what is in the Bill and not to what should be in it. What is in the Bill now is a hopelessly inadequate commitment to freedom of information. It is a copperfastened guarantee of the agency's right to maintain anything that is confidential subject to one section — section 107 — under which the agency can say that anything is confidential. A hopelessly inadequate section 107 does not go as far as the minimalist EC Directive on freedom of information which is acceptable to some of the more secretive Governments in Europe, such as the British Government which is appallingly secretive in its attitude to its own public. We now have environmental legislation which is supposed to be innovative and which does not go as far as this minimalist EC Directive.
This Bill is hopelessly flawed as it stands on the area of freedom of information. Its intent and philosophy will not work if the public are not trusted with all information. As of now, I have not been convinced that the Government believe in trusting the people and I suspect on this issue that the Minister may well be fighting a losing battle. That I regret because the Minister has devoted work and time to this Bill. She may talk to all the environmental lobbyists and they will say exactly what I have said, as will large sections of industry. The obsession with secrecy has been the bane of industry and of local authorities and this Bill as it stands will not change this. That is a most regrettable thing to say about a Bill that has so much good in it. The fundamental requirement in the environmental debate is trust in people and this Bill does not contain that requirement. Therefore as it stands it is defective.
I thank the Minister for bringing this Bill to the Seanad. It was a very important decision and the involvement of almost every Senator in the debate has given a public interest to this Bill which is truly justified. The Minister was most gracious in her responses during the entire debate on this Bill. She was very receptive and listened to and accepted ideas. Her response to Senators from all sides of the House was very encouraging and she is prepared to listen to further views. This is where I would disagree with Senator Ryan to some extent — there are further opportunities to amend this Bill and to put it into proper perspective with a regulation. The debate has been beneficial to this House and I hope the Bill itself has benefited from our contributions. This Minister emphasised the importance and value of this House when she decided to initiate the Bill here. Her decision was a good one and the Bill has benefited from it. I hope she feels the same about the approach of this House to her Bill.
I thank the Minister for the attitude she adopted towards this House during the debate. For the most part she listened very carefully and was openminded and flexible in her approach to the amendments which were proposed and suggested here. Like Senator Ryan, I regret the turn taken at the end of this debate where anxiety for the climate of secrecy seems to have again prevailed. I hope the Minister will reconsider the attitude adopted here to that aspect of the Bill when it is being debated in the other House. It is absolutely imperative for public credibility in this country's attitude to the environment that an open approach be taken to the provision of information and every item of information which can legitimately and reasonably be made available to the public should be seen to be made available with the exception of those matters spoken about already, such as relate to trade secrets, national security and so on.
I am concerned that the Minister and people who have been committed to secrecy over the years would once more have at their discretion the capacity not to release information. That is insulting to the public and undermines their faith in environmental legislation. I hope the Minister will reconsider her position on that matter and I thank her for her open-minded and generous attitude in relation to this Bill.
I thank the Minister for the open way in which she has conducted this Bill through the House taking on board many of the comments and recommendations made on both sides of the House. She is very much to be congratulated on initiating this important legislation. I share some of the reservations expressed in relation to freedom of information and it is my hope that the Bill can be further improved in the Dáil. The foundation of democracy is public access to information and it is my hope that the Minister will be able to accommodate some of the remarks made here this morning in relation to that matter when it goes into the Dáil. We have had good debates on Second Stage, on Committee Stage and on Report Stage and I wish the Minister well in conducting it through the other House.
I welcome the fact that the Minister saw fit to introduce this Bill in this House; she has done the Seanad a great honour and we will welcome the fact that this important legislation has reached this stage.
On Second Stage and on Committee Stage I said it was important to get the right balance and we have tried to achieve that. I do not worry as much as my colleagues about aspects of secrecy. There is certain information that should be made available to the public and I can also understand why other information may not be made available. I welcome this Bill.
The Minister — as I stated on Second Stage — should pursue with her European colleagues the opportunity to introduce within the EC a similar Bill for the Community and not just only for this country. We have all seen the implications of Chernobyl, not just for that particular part of Europe but for all of Europe, and Sellafield pose similar dangers. The Minister should work over the next three years towards a certain standard for all of Europe. Places like Sellafield cause major anxiety to many Irish people and not without good reason, Pressure should be maintained on the British Government to close down Sellafield because it is the single greatest health hazard to our people.
I am delighted this Bill was introduced in this House and that it has gone through. I hope that the necessary steps will be taken to protect our environment.
This legislation is very essential for the protection of our environment for future generations. I sincerely thank the Minister, Deputy Harney, for her time and patience even though yesterday afternoon I had one clash with her but it was only for a second. It would be wrong after the successful passage of this legislation through this House — as stated by Senator Naughten — to zoom in one particular point, the information point and to hype it up as a significant aspect of a most important Bill. We need protection and we have to be careful that we do not protect so much that we deter industry. I said this on Second Stage and probably commented on it on Committee Stage. Nobody is more aware of the importance of job creation than Deputy Harney. This is a most complex Bill and those of us who took it right through and were with it for weeks before we brought it into this House are aware that much other legislation frequently cut through it.
As the Minister mentioned yesterday, she will be introducing the waste Bill on foot of this Bill and certain amendments tabled yesterday had to be left for this next Bill from her Department. I am glad the Government have put the money in place to implement those provisions.
I am a firm believer that people should have all possible information. I mentioned this to the Minister — I do not know it it was officially in the House or privately — that I hoped information would be available further afield rather than just in Dublin. Her reply to that was that there would be other information centres. I thank the Minister for this Bill and for her commitment to the Seanad. I hope she never has to come back here. I am happy to stay here but strange things happen in politics. I thank the Minister for initiating this Bill. If I had a go at senior officials——
There could be a Labour candidate for Clare.
They will never get a seat in Clare. I am delighted that the Minister will be also bringing this Bill back to this House when it is amended in the Dáil, as she mentioned yesterday on various sections. I wish her well in the Dáil, and always.
As Leader, I would like to comment on the Bill and to respond very positively to the vote of confidence in the Minister. This was a major piece of legislation and one we were very happy to see initiated in the Seanad. There was great interest from Senators on all sides of the House. The 350 amendments alone were a reflection of this interest, as were the Second Stage speeches from 40 Senators or more. The Bill reflects the great interest of the Government and of this Minister in environmental matters. Throughout the debate, the Minister responded magnificently to the amendments put forward by many Senators. I have no doubt that the Bill was improved on each Stage. We have an outstanding international record in environmental matters and I have no doubt that this Bill has further enhanced our reputation in this regard. I again thank the Minister and congratulate her for her interest and commitment to this legislation.
I am embarrassed at the generosity of Senators in paying tribute to me. I see it as nothing more than my job to be here to listen and to accept as many of the worthwhile changes as possible. I hope that while some Senators are not happy with the overall package they are happier than they might have been. We made many worthwhile changes to the Bill in the Seanad. The way in which this Bill was approached by Senators from all sides does great credit to the House, and while Senator Honan does not want me back here I look forward to coming back with more legislation.
I meant in another capacity.
I do not have immediate ambitions to come back here in any other capacity than my present one. I am particularly impressed given that so many Senators had an outing at the hustings last week that they were here to contribute so forcefully to this debate. I want to thank them all. We had a very good debate which proves that initiating Bills in the Seanad is a good idea and I will encourage as many of my Government colleagues as possible to do likewise because they have approached this Bill seriously.
On Second Stage over 60 per cent of the Members participated, on Committee Stage there were 350 amendments and on Report Stage, Members indicated that it is not just a question of having a good debate but that they wish to bring forward the best possible legislation and to have a serious input into the formulation of appropriate legislation. That is the function and rôle of this House and Senators have performed it in an exemplary fashion.
Senator Honan referred to some daft notions and so on, and even to those who hold those notions I will be forever remindful of the manner in which this Bill was approached. I thank you Senators particularly for the warm tributes from all sides. I thank the Leader, the Leader of the Opposition, the Independent Senators, the Labour Party Senators, and so on, who made this a worth while debate and I think we have a better Bill as a result.
I hope the debate in the other House can be proceeded with as soon as possible in the autumn session and that this legislation can be in place by the end of this year so that we can establish the agency. It is important that this agency be established as quickly as possible because it has a mammoth task to do and an important role to play in environmental protection, job creation and industrial development generally. It is important that we have an agency with teeth and clout so that those sectors of industry that intend to develop and expand can do so in a way that is as benign as possible towards our environment.