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Select Committee on Housing, Local Government and Heritage díospóireacht -
Thursday, 21 Oct 2021

Maritime Area Planning Bill 2021: Committee Stage (Resumed)

SECTION 6
Debate resumed on amendment No. 40:
In page 24, between lines 14 and 15, to insert the following:
“(3) The Minister shall publish as part of the public consultation on a proposed marine policy statement, details of any representations made to the Minister or his Department in respect of such a policy, including representations made in the 3 years leading up to the enactment.”.
- (Deputy Richard Boyd Barrett)
Amendment put:
The Committee divided: Tá, 2; Níl, 6.

  • O'Callaghan, Cian.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

I move amendment No. 41:

In page 24, between lines 14 and 15, to insert the following:

"(3)(a) Any proposed policy statement arising under this section, shall first be subject to a screening determination for both Strategic Environmental Assessment and Appropriate Assessment, and such assessments shall be conducted where the screening concludes they are required.

(b) In the event of a negative screening determinations under paragraph (a) indicating either or both such assessments are not required, the screening determinations shall be published alongside the proposed policy statement as part of the consultation thereon with the public and prescribed bodies, where such consultations shall be required notwithstanding any such negative screening determinations.

(c) Public consultation on the proposed policy statement will be for a period no less than 42 days, when excluded consultation periods are considered, and all materials for the consultation shall be available online at least, for the entire duration of the consultation period.

(d) The consultation bodies for the purposes of consultation in this section on the proposed policy statement are as per those prescribed under Article 28 of the Planning and Development Regulations, 2001, and shall additionally include the Environment Protection Agency and the Marine Institute, and any additional bodies required under the SEA Directive and Habitats Directive.".

Amendment put and declared lost.

I move amendment No. 42:

In page 24, to delete lines 15 to 17 and substitute the following:

"(4) The Minister shall—

(a) cause a copy of the proposed maritime planning policy statement, or any amendment or proposed revocation to a maritime planning policy statement to be laid before each House of the Oireachtas, together with any environmental assessment reports prepared thereon pursuant to obligations under the SEA Directive and the Habitats Directive, and associated consultation responses,

(b) notify each Committee and Joint Committee of the Oireachtas that—

(i) the proposed statement, amendment or revocation and associated assessments and documents have been laid,

(ii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the Minister’s proposal and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses,

(iii) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses,

(iv) the proposed policy statement, or amendment or revocation will not be made and have effect until—

(I) a motion approving it, has been passed by each Houses of the Oireachtas, or

(II) a motion to amend it, has been passed by each House of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) it has been subsequently published on a website of the Government, and

(c) cause to be published on an appropriate website of the Government, and in two national newspapers in two consecutive weeks, and as soon as practicable after the proposed statement, amendment or revocation has been laid before the Oireachtas, a notice to the public that—

(i) such a proposed marine policy statement, amendment or revocation and associated assessments and documents have been laid before the Oireachtas,

(ii) indicates the date on which it was laid,

(iii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas,

(iv) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses,

(v) any such proposal shall not have effect until—

(I) a motion is passed in favour of the statement by both Houses of the Oireachtas, or

(II) the proposed statement, amendment or revocation, is amended further to a motion passed by both Houses of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) the approved policy statement, amendment or revocation is published on a website of the Government.".

Amendment put and declared lost.

I move amendment No. 43:

In page 24, between lines 17 and 18, to insert the following:

"(4) The Oireachtas when considering any proposed maritime planning policy statement,or an amendment or revocation of a maritime planning policy statement under this section, either within a committee of the Oireachtas, or when either House considers motions in relation to a proposed maritime policy statement shall act consistently with the matters listed under section 6(3)(a) to which the Minister is required to act consistently with, and have regard to the matters which the Minister is to have regard to under section 6(3)(b), and give due consideration to the matters as specified in section 6(3)(d).".

Amendment put and declared lost.
Amendment No. 44 not moved.

I move amendment No. 45:

In page 24, lines 20 to 22, to delete all words from and including "prepared," in line 20 down to and including line 22 and substitute the following:

"approved by both Houses of the Oireachtas.".

Amendment put and declared lost.

I move amendment No. 46:

In page 24, between lines 22 and 23, to insert the following:

"(6) A public body shall have regard to the maritime planning policy statement when performing a function under this Act to which information, setting out the principles and priorities of the Government referred to in subsection (1), contained in the statement is relevant.

(7) The Minister may amend or revoke the maritime planning policy statement prepared under this section.

(8) Where the Minister proposes to prepare the marine planning policy statement or amend or revoke it, he or she shall publish, in not less than one national newspaper, a notice—

(a) stating that the Minister proposes to prepare, amend or revoke a marine planning policy statement,

(b) stating that a copy of the proposed statement, amendment or revocation may be inspected on a website of the Government, and

(c) inviting members of the public to make representations in writing thereon to the Minister, not later than four weeks after the date of publication of the notice in the newspaper (or, if the notice is published in more than one such newspaper, the last date of publication), at an address (which may be an electronic address) specified in the notice.".

Amendment put and declared carried.

I move amendment No. 47:

In page 24, between lines 22 and 23, to insert the following:

"(6) Public bodies shall have regard to marine policy statements in the performance of their functions under this Act and related functions in the Planning and Development Act introduced under this Act, but shall not be bound by them where that would involve a breach of EU rules.".

Amendment put and declared lost.
Section 6, as amended, agreed to.
SECTION 7

Amendment No. 48 is related to amendments Nos. 52 and 61. They may be discussed together.

I move amendment No. 48:

In page 24, between lines 27 and 28, to insert the following:

"(2) The Minister shall ensure a full public consultation on any marine planning guidelines, in line with the State’s obligations under the Strategic Environmental Assessment Directive and the Aarhus Convention.".

Before I speak briefly to those amendments, I am still unclear about the legal status of the guidelines. The term suggests they are a guide as opposed to something mandatory, yet in one of the subheadings of this section there seems to be an implication they will be mandatory. I wonder if these are similar to, say, section 28 planning guidelines in terrestrial planning where mandatory ministerial guidelines are really instructional. It would be helpful if the Minister of State clarified that matter.

Either way, amendment No. 48 speaks to the need for full public consultation. When former Minister Eoghan Murphy was producing his mandatory ministerial guidelines and design standards for apartments and building heights, there was a public consultation. I would be interested to know if something similar will happen with respect to the operation of these guidelines.

Is amendment No. 52 part of this group?

It is, as is amendment No. 61.

Amendment No. 52 speaks the same issue of the needs for adequate public consultation. Amendment No. 61 also relates to the key point of public consultation. I am interested to know the status of the guidelines and the level of public participation and consultation.

I am not clear from the legislation as to how far from real legislation the marine planning guidelines could go, but if we are basing an assessment on other planning legislation and guidelines for land use, we know that planning guidelines can be very far-reaching. The Minister can be far-reaching in what he can do within the guidelines. There are not sufficient limitations. Public consultation would be one measure to provide a check or balance, allowing public input into, and scrutiny over, what a Minister might do under these guidelines. I would be interested to hear what the Minister of State has to say about that.

If we do not plan properly and if the Minister is drawing up and issuing guidelines without consulting people, consider the damage that could be done to our cetaceans. Ireland has 25 species of cetaceans, nearly one third of the total number of those species in the world. That is highly significant

When it comes to climate change, as I am sure members are aware, one whale is worth the equivalent of thousands of trees in terms of carbon sequestration, as well as the carbon they take out of the atmosphere for hundreds of centuries. I mention this because if the Minister is drawing up and issuing guidelines, that could have far-reaching consequences on marine development and could have an impact on our cetaceans, on our biodiversity in the marine and on carbon sequestration in the marine from marine life. At a minimum, having public consultation as part of that process gives some level of a check and balance regarding Ministerial guidelines. I would be interested to hear what the Minister of State has to say on that.

A lot of questions have been asked. I refer to amendment No. 52 and to amendment No. 61 in particular, which also relates to directives. I note that we now have policy statements, guidelines and directives. Before all of that, we have plans. I am trying to understand the relationship between these different things and the precise hierarchy and relationship between them. It is fair to say that with all these different mechanisms for dictating by the Minister - because the Minister has the power to do these things - there seems to be a lot of power and many different avenues provided by the Minister to change things as they as move along. As we will see in the next grouping, there is a requirement to comply with these policy statements, guidelines, and directives, if I understand correctly. We have sought to delete line 35 in the subsequent group of amendments that we will deal with shortly. These mechanisms will be available to the Minister to direct and to give guidelines, that is, issue instructions and give the Minister a hell of a lot of power. One would worry about that sort of arbitrary power being given to the Minister. While we may have great confidence in the Minister of State sitting here in the room with us, who knows what sort of Minister we might have in the future.

Deputy Cian O'Callaghan's point is important as well. Rightly and understandably, there is a huge need to address the climate crisis but the biodiversity crisis is not mentioned as often. In fact, when one thinks about it deeply enough, a collapse in ecosystems could probably damage our ability to sustain our existence on this planet sooner than climate change. The collapse of whole ecosystems could have disastrous and unknown consequences, because everything is connected. We all depend on these interconnected chains called ecosystems. The marine, marine life and marine biology are all critical to our existence on this planet. There is a lot at stake, therefore. By requiring public consultation on all of these things, we are ensuring that it will not just be a hell of a lot of power concentrated in the hands of a single Minister but that everybody, including all stakeholders and society generally ,would have a voice in this. The Minister would have to meet many checks and balances in the objectives in developing the marine.

Amendment No. 48 proposes public consultation on any marine planning guidelines in line with the State's obligations under the strategic environmental assessment, SEA, directive and the Aarhus Convention. By their nature, such guidelines will require strategic environmental assessment. Integral to that process is public consultation. Guidelines prepared without that assessment and consultation would not survive judicial review. The term “full public consultation” is also technically problematic. It is not a defined term and contains an inherent risk that any consultation, no matter how comprehensive, could be challenged on the basis that it is not full or complete. Simply, direct and unspecific reference to the Aarhus Convention is not only unnecessary, it is legally problematic given the range of enabling legislation and European directives already in place giving effect to the principles set out therein.

Amendment No. 52 proposes that public consultation is undertaken for the making, amending or revocation of any guidelines. This is an overly onerous and restrictive provision. It would oblige public consultation on the correction of even a single typographical error. Any amendment to the guidelines will be subject to SEA screening, and full SEA including public consultation, if required. There may also be a need to urgently amend any guidelines resulting from emergent case law, both domestic and European. Guidelines would normally be revoked where a new set of superseding guidelines are developed. It would not be practical or best use of resources to hold a separate consultation specifically on revocation.

Amendment No. 61 proposes public consultation on every directive or amendment or revocation. By their very nature, directives may be needed urgently to ensure the legally robust functioning of the marine planning system. Directives issued under this section will be subject to obligations under section 31 in respect of appropriate assessment, AA, and strategic environmental assessment, SEA. If such assessments are screened in, public consultation will be undertaken as a matter of course and existing obligation. I therefore oppose these amendments.

There appears to be a misunderstanding of the purpose of these guidelines and policy directives. They are used to ensure that the system that is being designed here operates as intended. They will be drawn up and will operate within the policy framework, as set up in the national marine planning framework that has been approved by the Oireachtas. They are there to make it work. They are also there to show specific public bodies how they can comply with the policies and objectives of the national marine planning framework, maritime spatial plan, or designated marine area plans, DMAPS. Moreover, in some extreme cases, they can direct them to act in a certain way in order to comply with these policies or with emerging case law. They are created in a system that is designed around the maritime spatial planning, MSP, directive, has also had regard to the marine strategy framework, MSF, directive and the principles established in the Aarhus Convention, as already transposed in Ireland. The SEA and AA-related directives already apply to them by reference to section 31 of the Bill. It is simply not necessary to restate these things in every Part of this Bill; it is unwieldy and would have a myriad of unintended consequences. In addition, there appears to be a perception that the Government is currently avoiding consultation with the public generally. That simply could not be further from the truth. Consultation and, more appropriately, participation occur in a variety of ways. To give the most recent example of guidelines that I published under section 28 of the Planning and Development Act, namely, the draft development plan guidelines for planning authorities, these were placed on public display for the acceptance of submission from 13 August 2021 to 8 October 2021, a period of almost nine weeks. However, to get to that point, a high degree of consultation with various stakeholders was carried out. This was to ensure their operational effectiveness. Appropriate consultation does take place in respect of such guidance already. It will continue to do so under the provisions drafted, where appropriate.

I thank the Minister of State. I call Deputy Ó Broin first, and then Deputy Cian O’Callaghan.

I thank the Minister of State for his answer. If there is some misunderstanding, confusion is probably a better word for it because the Bill itself is not clear. Certainly, it does not provide us with as clear an explanation as the Minister of State has just provided for us on the floor. That was helpful. The difficulty, however, with the reference to section 31 is that if an SEA screening is to take place and an SEA is not required, that means there would be no public consultation. It would only be in the context of a strategic environmental assessment.

That is a very different position from what has just been outlined with respect to the county development plan guidelines, whereby a robust consultation took place over a number of months. Was consideration given to public consultation even where a strategic environmental assessment screening did not require such an assessment?

Will the Minister of State address the point raised by me and others on the mandatory nature of these? Are these similar to the section 28 mandatory ministerial guidelines on terrestrial planning or do they simply have to have regard to them in respect of functions? We will discuss that more specifically with the next set of amendments but I am trying to understand the full intention behind section 7.

It is a misunderstanding to think these amendments are suggesting what the Minister of State has said they are. It was stated that these would mean a correction of a typo would require public consultation. That is a bit of a stretch and nobody would suggest that these amendments would mean that the correction of a typo would require public consultation. The general understanding is that any material changes would require public consultation but that a typo correction would not. The Minister of State might give some examples of where typo corrections require public consultation, seeing as that is his stated position on this. I do not accept that.

The Minister of State also indicated that there would need to be a separate consultation on the revoking of guidelines. At the same time, he states that the revoking of guidelines would nearly always happen in conjunction with new guidelines being introduced. It is quite clear that where new guidelines are being introduced and other guidelines are being revoked, there could be a consultation process on the revoking of guidelines and introduction of new guidelines if it is all part of the same process. Given that the Minister of State argues that it would be a rare scenario for guidelines to just be revoked on their own without new guidelines being introduced, the scenario about which he is worried - the revocation of guidelines requiring a separate consultation - would not frequently arise, if ever.

I have the same concerns about the Minister of State's indication that there will only be public consultation after a screening process, especially with regard to directives. These amendments specifically seek public consultation in all scenarios. Between these guidelines, the directives and the policy statements, there is so much leeway for a Minister to set the direction and the impact it can have.

If the guidelines are of significance, and they will be, the Minister will not set them for no reason. We have seen in other planning areas where guidelines can have a major impact. Whether a screening process decides public consultation is required or not, it is very clear that public consultation is needed given that these guidelines will be of significance. They are significant enough to be in the legislation we are discussing now and what is to be put on a statutory basis. Given the extent of the powers, they are significant enough to go to public consultation as part of a system of checks and balances on these quite strong powers that the Minister is to be given with the legislation.

I will try to be nice in what I say.

We are in public session as well.

The Minister of State knows quite well that we are not talking about typos and that our concern is that guidelines which could have a real, substantial and material impact should be subject to a requirement for public consultation. It is a similar idea with directives. I am looking at this stuff and trying to get my head around it. There are some people watching this and trying to get their heads around it. It would be useful for the Minister of State to give some examples of what these cases might be. What would a policy statement, guideline or directive look like? That is so we can understand exactly what we are talking about.

It seems that guidelines are pretty important and that a directive is also pretty important. If they are going to have a substantial impact on marine planning and development, it is absolutely reasonable to ensure the public can have its say. That should not in any way take us outside compliance with directives and other elements that protect the marine environment and public interest.

I thank the Deputies for their engagement. In the context of typographical errors, I refer to amendment No. 52 in which it is explicitly stated that any amendment shall be required to be the subject of public consultation. That is the amendment to which I referred in saying that consultation would be required if a typographical error had to be amended subsequent to the issuing of guidelines.

On the development of guidelines, as a matter of course, a series of stakeholders are engaged to develop the guidelines in the first instance. That is why we have screening, which functions as a mechanism to decide the sensitivities in the guidelines, including whether we require consultation or a strategic environmental assessment. These are the key safeguards built into the system in order to ensure that the guidelines are appropriate and go to the appropriate thresholds of public consultation in their genesis. That must be clear. Sticking to the technical aspect of the Bill, section 7(2) details what public bodies have regard to with respect to ministerial guidelines.

I will come back to that question with the next round of amendments. I would like one clarification, however. The Minister of State indicated that there will be engagement with stakeholders. Where in section 7 or elsewhere in the Bill is that set out? Who are those stakeholders and how is that determined?

It is not that it is set out; it is part of how you form guidelines. There is a reason for guidelines coming about and, on that basis, you would engage with stakeholders to try to develop the best guidelines possible. When it comes to the parameters of the guidelines, you have to have your screening and processes subsequent to that in order to decide the level of consultation and thresholds that apply.

That means the process is at the discretion of the Minister up until the screening.

There would be screening.

I am talking about the position up to that point. Screening is a separate process.

Absolutely. If there is an issue or problem, you would consult widely in the development of guidelines. That would be as a matter of course. The Minister is not going to develop guidelines on the back of an envelope, say we have them and then ask if we need screening. They come about on the basis of a concern or an issue in the sector to which you are trying to respond.

The point we are trying to make is that it should be set out in the legislation.

For quite a long Bill, it has only eight short sections on ministerial guidelines, which is a relatively small amount of text. They do not flesh the consultation process and what engagement should and must be done. The level of discretion the Bill leaves is the issue I am raising. I would be more than happy, for example, if the text of the amendment was changed to refer to "any material amendment". This would address the issue of typos and so on, which the Minister of State raised. That could easily be done. The guidelines in the Bill on what the Minister does and the process around that are fluid. The text does not specify processes for consultation at the beginning of the process. The legislation would benefit from having those in it.

The Minister of State did not respond to the point I raised on the relationship between statements, directives and guidelines. Nor did he give some instances so that we understand what we are talking about. People listening to this will just go-----

We are on amendment No. 48.

There are good explanatory documents. There is good document from the Library and Research Service.

It sets out quite clearly what the relationships are between these things. Does it not?

I do not want to spend too much time discussing an amendment to get a description of the relationship between other parts-----

In that case, the Minister of State should give us an instance of a guideline. Give us an example of the sort of guideline that might be issued so that we know what we are talking about.

I am not going to curtail the discussion on this amendment but I need to move things along. If I think the discussion is not entirely relevant to the amendment, I will try to move along. I am being fair to the Deputy. I have not stopped him speaking but asking the Minister of State to describe what the relationship is between various parts of the Bill is not relevant to this amendment. I am trying to keep things moving.

I am willing to be helpful here.

It is my job to try to keep things moving.

On a point of order and with all due respect, we are trying to get to the bottom of what a guideline is. This section is dealing with guidelines and our amendments refer to the importance of setting out the need, explicitly, for public consultation on guidelines. It is entirely relevant in that context for people, including me as somebody who is supposed to be scrutinising this legislation, to be absolutely clear what exactly we are talking about when we talk about guidelines and what the difference is between a guideline, a directive and a policy statement. It is absolutely a legitimate question.

The policy statement, as we discussed in the previous session, sits at the top of the hierarchy. That is in the terrestrial planning policy. It sets out the high-level objectives in terms of the way our planning system should perform in a sustainable manner. Sitting under that, we have the national marine planning framework and, in respect of onshore, the national planning framework. The Minister can also issue directions and guidelines. Directions involve being more explicit because the Minister will be directing a particular course of events. For instance, in the event that an entity such as the maritime area regulatory authority, MARA, does not do what the policy says it should do, the Minister may issue a direction to ensure that it does so. Guidelines are more subjective. We have offshore renewable energy guidelines, for example. Guidelines involve trying to guide the decision-making process to get the best outcome, whereas a direction is more specific and clear. That is my best attempt at explaining. Maybe that does not meet the standard the Deputy requires but it is the best I can do at the moment.

Amendment, by leave, withdrawn.

Amendments Nos. 49 to 51, inclusive, are related and will be discussed together.

I move amendment No. 49:

In page 24, to delete lines 28 to 35.

This follows on from what the Minister of State just said because we are finally getting some clarity on this. Amendment No. 49 deals with section 7(2) in which the two phrases, "having regard to the guidelines" and "shall consider", are used. I am hoping the Minister of State will tell us that this does not have the same legal force as section 28 mandatory ministerial guidelines in terrestrial planning. Even though they are called guidelines, they are actually directives although they are just not described as such. On the basis of what the Minister of State outlined, is it correct to assume that these ministerial guidelines will be more procedural? For example, if the objective of the planning policy statement is X, the guideline is setting out how the relevant public body will get to achieve X. Rather than setting out a policy principle, it sets out how to reach something. I am looking for the Minister of State to say that these guidelines are not mandatory and that they are procedural rather than substantive, if that makes sense.

That is correct, yes.

I am confused by this. The word "comply" is used in the text. How is it a guideline to help the decision-making process if-----

The word "comply" is used in respect of advice on a specific element. This is on page 24. In sections 7(1), 7(2), 7(4) and 7(5) the words used are "have regard to" or "having regard to", whereas section 7(3) is a more specific element and the words used are "shall ... comply".

This is the bit that confuses me because in some circumstances the guidelines are a guideline while in another circumstance, they are about complying rather than being a guideline. Why are they all called guidelines when some are guidelines and some are really directives? If a body must comply, is that not the same as a directive? Why is it included in this part of the legislation? Why would it not fall under a directive from the Minister? That is what I do not understand.

This is precisely the point I was trying to make earlier. The Minister of State's answer to the distinction between guidelines and directives was that the former set general parameters and that where there are specific objectives, there is a directive. Section 7(3) refers to "specific marine planning policy requirements". That sounds like a directive with which compliance is required. I do not see what the difference is between that and the directives in the section we will deal with later. It definitely does not sound like a guideline.

There are some parts of the guidelines which simply must be complied with. That is why the reference is included in the section. With European directives, there is no leeway and they must be complied with. That is why the word "comply" is used in the particular subsection.

Some guidelines are mandatory and some are not. Is that what the Minister of State is saying?

Essentially, yes.

If a European directive applies and it is mandatory, why would the Minister not issue a directive?

It is how a body complies with the directive.

It is information on how to comply with a directive. If the body must comply with a directive, why not issue a directive on how to comply?

If the committee goes into private session for a moment, I will ask the officials to clarify this matter. It seems to be a major issue for some members. If they are agreeable, we will get technical guidance on it.

I am not being awkward in the slightest; we are genuinely trying to scrutinise this issue. However, it is important not only that members of the committee understand this but also that it is on the public record. I do not mind if we go into private session but it would be helpful, when we resume in public session, for the Minister of State to further clarify the matter because the public have a right to hear that clarification.

Is that agreed? Agreed.

The select committee went into private session at 2.19 p.m. and resumed in public session at 2.25 p.m.

We are in public session. I call the Minister of State to respond.

Thank you, a Chathaoirligh. I thank the members, and in terms of going into private session, the public, for bearing with us. In private session, we expanded on the questions from the Deputies.

I wish to explicitly state that public bodies have to take into account guidelines and directions that are issued. As was stated before we went into public session, some of those guidelines have to be complied with. Which aspects have to be complied with will be clearly stated when the documents are issued.

I thank the Minister of State for that clarification. Is amendment No. 49 being pressed?

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Gould, Thomas.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

Amendment No. 50 has already been discussed with No. 49.

I move amendment No. 50:

In page 24, line 30, to delete “the Minister” and substitute “the maritime planning policy statement”.

Can I ask a simple and straight question on amendments Nos. 50 and 51?

I see the Minister of State has left without his officials. Why do the two sections of the Bill talk about the Minister rather than the maritime planning policy? If the Minister of State is able to give a convincing response, I will be happy to withdraw the amendments.

Maybe we will wait until everybody settles and then proceed with that question.

Sure. I should have asked that question in the last discussion.

It is because ministerial guidelines and directions are a ministerial function and that is why they are referred to in the Act.

So this refers to those ministerial guidelines.

Does it only refer to those, or does it refer to those and the planning policy statement?

Just those, as they are ministerial functions.

We have discussed it. I do not want to go back into it again. We discussed amendment No. 49 and-----

We did not discuss it. We discussed the others but not No. 50. I know they are all in one group but we did not discuss No. 50.

Amendments Nos. 49 to 51 were discussed together.

We did not actually discuss Nos. 50 and 51. That is the point. We probably should have.

Okay. That is fair enough.

I take the Chairman's point that we should have. I am trying to do them in groups but we did not, actually. I will not dwell on this. I am not clear if the Minister through the marine planning policy statements will give the high level objectives in those statements. What is it that the Minister does not put into those statements that would be needed in terms of setting out policy for inputting into the guidelines?

Is the Deputy referring to amendment No. 50?

I will read the technical text because the question does not make sense to me.

Amendment No. 50 proposes to limit considerations to the policies set out in the marine planning policy statement, rather than the broader scope of the initiated text. As provided for in amendment No. 46, public bodies will already be obliged to have regard to the MPPS in the performance of their functions. The proposal is both redundant and inappropriately limiting.

The guidelines are a layer on top of the MPPS. It is an additional-----

I do not know how many times I have clarified that the MPPS sits at the very top and is the high level objective. Let us be clear on that. It is high level and strategic. This is underneath it.

This is an additional layer providing detail.

It is detail, exactly. It is micro-precision.

I am not clear why the guidelines are not running off that, as opposed to off the Minister. Why do they not run from the national marine policy statement rather than the Minister?

They are prepared by the Minister as is the MPPS, which is at the very top of the tree.

Should the Minister not, in the preparation, take policy direction from the national marine policy statement?

Absolutely. That sets out the objectives at the very top but managing the performance is where the guidelines come in. High level objectives is where the MPPS is. This is done from that and is at a more micro level.

Amendment, by leave, withdrawn.
Amendment No. 51 not moved.

I move amendment No. 52:

In page 24, between lines 36 and 37, to insert the following:

“(5) The Minister shall always conduct a public consultation on the making of guidelines, or any amendment to, or revocation of guidelines under this section.”.

Amendment put and declared lost.

Amendments Nos. 53 and 62 are related and will be discussed together.

I move amendment No. 53:

In page 24, between lines 36 and 37, to insert the following:

“(5) The Minister shall ensure any new guidelines, revocation or amendment of guidelines made under this section, shall first be subject to a screening determination for both Strategic Environmental Assessment and Appropriate Assessment, and such assessments shall be conducted where the screening concludes they are required.”.

This amendment may not be necessary, depending on the Minister of State's response again. I do not want us to get into the issue about typos but if there are material changes, do they have to go through a screening process? If they do, that makes the proposed amendment redundant, in my view. I would like some reassurance on the record that where there are revocations, material amendments or changes, there is a similar screening process.

I will come back on amendment No. 62 after the Minister of State's response.

I thank the Deputies.

Amendment No. 53 obliges the guidelines to be subject to strategic environment assessment, SEA, and appropriate assessment, AA, screening. Amendment No. 62 obliges ministerial directives to be subject to SEA and AA screening and assessment. Section 31 of the initiated text already provides for both of the above to be subject to the necessary screenings and assessments. These amendments are not necessary and I oppose them.

The amendments do not just speak to the guidelines. They also talk about revocation or amendment too. Would that also be the case?

Can the Deputy repeat that?

The amendments speak not only to guidelines, but if there are amendments to guidelines or directives, would they also be subject to SEA screening?

Screening would be carried out and that is the process whereby one finds material amendments and what scope is required, with regard to SEA, or whatever additional thresholds are required for them.

If there are guidelines and it went through a screening process, that is fine.

If, at a later stage, those guidelines are subject to further amendments, would those amendments be subject to screening?

I am more than happy with that.

Does that cover amendment No. 62 for the Deputy?

Amendment, by leave, withdrawn.

Amendments Nos. 54, 60, 64 and 71 are related and will be discussed together.

I move amendment No. 54:

In page 24, to delete lines 37 and 38, and in page 25, to delete lines 1 and 2 and substitute the following:

“(5) The Minister shall—

(a) cause a copy of the proposed guidelines prepared under this section or any amendment or revocation of such guidelines, to be laid before each House of the Oireachtas, together with any environmental assessment reports prepared thereon pursuant to obligations under the SEA Directive and the Habitats Directive, and associated consultation responses,

(b) notify each Committee and Joint Committee of the Oireachtas that—

(i) the proposed guidelines, amendment or revocation and associated assessment have been laid,

(ii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the guidelines is presented to either or both such Houses,

(iii) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses,

(iv) the proposed guidelines, amendment or revocation will not be made and have effect until—

(I) a motion approving it, has been passed by each Houses of the Oireachtas,

(II) a motion to amend it, has been passed by each House of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, or

(III) the guidelines, amendment or revocation has been subsequently published on a website of the Government,

and

(c) cause to be published on an appropriate website of the Government, and in two national newspapers in two consecutive weeks, and as soon as practicable after the guidelines, amendment or revocation of the guidelines, and associated documents and assessments have been laid before the Oireachtas, a notice to the public that—

(i) such proposed guidelines,amendment or revocations and associated assessments have been laid before the Oireachtas,

(ii) indicates the date on which they were laid,

(iii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas,

(iv) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses, and

(v) any such proposed guidelines, amendment or revocation shall not have effect until—

(I) a motion is passed in favour of the proposal by both Houses of the Oireachtas, or

(II) the proposal is amended further to a motion passed by both Houses of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) the approved guidelines, amendment or revocation are published on a website of the Government.”.

Amendment No. 54 is that instead of the guidelines being laid before the Oireachtas, the environmental assessment reports are also provided and there is an opportunity, with regard to the amendment of the guidelines, provided for the assessment reports to be laid before the Oireachtas. There is a view from people with expertise in this area that in terms of compliance with requirements under the Constitution, it would be important not just to have the guidelines laid, but to have the policy ends complied with as part of that process.

Amendment No. 60 is about ensuring if the Oireachtas makes changes to the guidelines, it does so in accordance with the frameworks and directives set out in section 6(3) and that will ensure the Oireachtas is informed by the proper considerations and obligations in making decisions on the guidelines.

Amendment No. 64 is similar to Amendment No. 60 in that it would ensure the Oireachtas, if it makes changes to directives, does so in accordance with the frameworks and directives set out in section 6 to ensure it is informed by the proper considerations and obligations in making a decision on the directives.

Amendment No. 71 is also to ensure if the Oireachtas makes changes to policy, it does so in accordance with frameworks and directives set out in section 6(3), for the same reasons that the Oireachtas makes considerations and obligations in line with those directives.

All the amendments try to ensure the Oireachtas and its committees are fully alerted to any guidelines or directives being developed; the individual Members of the Oireachtas and committees have the right to put forward resolutions on those and any such guidelines have to be voted on by both Houses and there is full notification of the public and the Oireachtas on all of these. As for my suggestion, on which the Minister of State seemed to look somewhat favourably the last time, in addition to what we have proposed in these amendments about newspapers and other forms of publications, one can take it as a standing request from me to consider radio ads for all of these things. When we are discussing the notification of the public, we need to think about other means of getting over the fact the public just do not know. They do not see these newspaper ads and so on. The point is to let everybody in the Oireachtas and the public know; ensure the Oireachtas votes on it and has input into these guidelines and directives and the public is aware of them and has opportunities to make its views known. That is the logic of these amendments and they are reasonable suggestions.

The wording of the amendments is very similar to the wording of similar amendments to section 6, which are about Oireachtas participation. We will not repeat the whole debate we had previously. Some of us would like to hear, and something with which the Minister of State is familiar because he does it with us regularly in committee, when there are changes to certain aspects of planning policy that there is a procedure where they are brought in at least to an Oireachtas committee and there is a discussion and a motion with or without debate to clear those through. I am not proposing that same mechanism, but what motivated the three of us here who put our names to this is we would like to see some greater role. The Minister of State's officials will have advised him this is a far too onerous set of requirements we are setting out and he will not support those, but is there willingness to conceive of some formal role or process for the Oireachtas to be involved in this, in the way we often are? Solar panels or some of the emergency measures introduced in planning about on-street dining and such are examples. Some of those are planning guidelines. How can we better involve the Oireachtas? If the Minister of State is rejecting what we proposed, which we know he is, and that is his absolute right, can he at least take the spirit of what we are talking about and examine it? There is merit in engaging with the collective experience of the Oireachtas and members of relevant committees, but also for public confidence in those guidelines because of the involvement of committee and public transparency etc.

This grouping of amendments proposes similar Oireachtas engagement procedures for guidelines and directives to those proposed earlier for the marine planning policy statement, MPPS, and are equally problematic. The net effect of the proposals would be that the Oireachtas would take the role of the Minister of the day on a day-to-day operational level of the planning regime. The Oireachtas is not and cannot be the marine spatial planning body. The text is largely copied from those earlier amendments and, as such, contains the same technical deficiencies as already debated.

The requirement for such detailed engagement with the Oireachtas would limit the finalisation of such documents to the periods in which the Oireachtas was sitting and had the available capacity to deal with such matters. Such a restriction brings with it the problematic risk of the entire marine planning system grinding to a halt during periods in which the Oireachtas was not sitting or did not have capacity where a guideline or directive was necessary to ensure legally robust functioning of the planning system. That would be an unprecedented constraint for any regulatory system and I sincerely doubt people would thank us for introducing it.

Amendment No. 54 sets out the process for the Oireachtas approval, which is entirely inappropriate for ministerial guidelines and would be inconsistent with other provisions on the Statute Book. Amendment No. 60 limits such guidance to the consideration of specific matters which are in the formulation of an amendment that has already been rejected. Amendment No. 64 again sets out an Oireachtas process entirely at odds with the purpose of a ministerial function. Amendment No. 71 sets out limits on such directives to the consideration of such matters which are in the formulation of an amendment already rejected. I oppose these amendments.

I remind Deputies resolutions were passed for the national marine planning framework. We have agreed, through this committee, to go for a resolution for the MPPS. That was a commitment given at the first session. Designated maritime area plans, DMAPS, will require a resolution through the Houses. I am clear in my mind that Government sets the policy and the Oireachtas holds it to account on such policy.

Did the Minister of State cover amendment No. 71?

That is good. Do members wish to add anything?

I could be very ungenerous and say there are times when the planning system grinds to a halt all by itself without any Oireachtas interference or scrutiny. That is an argument for another day.

On the last question I asked, does the Minister of State not see any link between the role given to the Oireachtas committee on regulatory changes concerning terrestrial planning and the role under discussion? Is it not a matter he would at least explore? I realise he is not going to accept these amendments, and I am not going to waste his time arguing in favour of them, but he should note the planning system does not grind to a halt under a system whereby minor and, at times, significant changes to planning regulations are brought to an Oireachtas committee and then approved without debate on the floor of the Dáil. Since the guidelines are similar, is there not some parallel that could be considered, if I am not misinterpreting the matter? I am not referring to consideration today but to consideration at a future point.

Or even a provision whereby it would be open to the Dáil to ask for a debate and for the issue to be decided. There may be matters that do not require this but directives and guidelines should, at a minimum, be discussed by a committee.

There are matters that the Business Committee is happy to have a committee deal with, while there are others regarding which it is not satisfied to have a committee alone deal in the belief that they need to be discussed and passed by the Dáil. Sometimes it is agreed, even by the Government, that there are matters of great enough significance to warrant that, but it is not required as a matter of course. The Department and Minister of State should consider that.

We are in new planning territory. We are trying to build a planning and development regime from scratch in an area where there was nothing. There is a need for checks and balances when starting from scratch in respect of an important area, the maritime area, and we must ensure that we do not make the mistakes that were made on land in the past. The checks and balances we are requiring a reasonable. If our proposals are a little over the top or onerous in the view of the Minister of State, could we make provision for at least a committee to have some role and afford the Dáil the possibility of debating these matters and, where necessary, resolutions, when it deems it important?

The legislation gives the Minister quite a significant power concerning the issuing of directives. The Minister of State said the Minister sets the policy and the Oireachtas holds him to account. However, where is the ability of the Oireachtas to hold the Minister to account regarding directives? This section allows for the laying of a policy directive before the Houses of the Oireachtas, but that is it. Where else can the Oireachtas have an input? Could the Minister of State comment on that?

I thank the Deputies for their comments. I draw their attention to section 7, which is clear, in respect of the requirements for ministerial guidelines, about what is to be laid before the Houses. Regarding section 28, Deputy Ó Broin gave valuable examples of where the Oireachtas committee engaged on guidelines that had been issued. I remind him that it was not the result of a mandatory requirement, but it happened. That is why I expect the same value can be derived from the committee system regarding the guidelines in question that are to be issued. There is nothing preventing a committee from examining items that are laid before the Houses of the Oireachtas if it sees fit to do so and if the members believe they can add value to the process. I am very clear about the process whereby the Government governs. Deputy Cian O'Callaghan, as a Member of the Dáil, has ample opportunity to hold the Government to account regarding any regulations a Minister issues. He could see the value during the Covid period. He will have noted the role of committees regarding emergency guidelines that were introduced and the arrangements as we emerged from the pandemic. It is a very valuable role.

We are talking about directives in respect of the Bill.

It is the same answer.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Gould, Thomas.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

Amendments Nos. 55 to 57, inclusive, and amendments Nos. 65 to 67, inclusive, are related and will be taken together.

I move amendment No. 55:

In page 25, line 3, after “shall” to insert “publish on its website and”.

The purpose of this amendment is to ensure that the ministerial guidelines are published online. For the purposes of transparency and openness, it is very important that people can access them. Amendment No. 56 is similar in ensuring ready online access in terms of the publication of the guidelines. The purpose of amendment No. 57 is to ensure that they are published to the fullest extent possible online. Amendments Nos. 65 to 67, inclusive, are similar. I do not see why there would be an issue with this. I can understand why it might not have made it into the original draft, but I believe it is a good provision to have and I hope the Minister of State will support.

The reason for the repetition of the text in amendments Nos. 65 to 67, inclusive, is that they apply to public bodies. It is very important that where those guidelines relate to a public body, they are published on the public body's websites as well as the Department website. Individuals, organisations or communities may track the public body as opposed to the Department, and there is a value in that. The amendments are eminently sensible.

On amendments Nos. 57 and 67, the concern is that while there is a requirement for publication, the relevant sections do not stipulate the extent to which things should be published. It could be a summary, a note or whatever. We are trying to ensure that where they are published, it will be done in a way that will provide benefit and clarity for the public and-or promote environmental protection.

I thank the members for their amendments. This grouping contains certain technical amendments to the publication procedures in respect of guidelines and are repeated verbatim for directives. The amendments are not necessary. The current text already provides for publication on websites. It is also intended to publish or provide a link to those documents on the marine spatial planning data tool that is currently being developed by my green planning team and the Marine Institute and that is due to be launched to coincide with the enactment of the Bill.

The GIS-based digital tool will be a portal containing a wealth of marine development information gathered in one location and will include such guidelines and directives. It will display planning applications and consents. Importantly the tool will be available to all members of the public to view on their laptops and mobile devices. Some developers will be discouraged by this, but I make no apology for maintaining and building on the ethos of informing the public as to what is happening or is planned to happen in their maritime area. The marine planning system we are establishing in legislation will operate in an accessible information-rich environment.

Amendment No. 55 proposes publication of the guidelines on the public body's website, which is standard practice. Amendment No. 56 proposes publication of the guidelines on a website of the Government, which is standard practice. Amendment No. 57 proposes inappropriate limitations on the circumstances where the Minister can publish guidelines.

Amendment No. 65 proposes publication of directives on the public body's website, which is standard practice. Amendment No. 66 proposes publication of the directives on a website of the Government, which is standard practice. Amendment No. 67 proposes inappropriate limitations on the circumstances where the Minister can publish directives.

This is a frequent theme throughout several amendments and assumes that the Government does not, as a matter of course, publish material appropriately on its website and in other media. This is, of course, simply not the case. We use all manner of communications and we always avail of emerging technologies to communicate with the public. I note that Deputy Boyd Barrett in the last session made the case that perhaps limiting publication to newspapers might be unnecessarily restrictive given the perhaps somewhat outdated nature of the circulation of hard copies of such publications. Similarly, proposed insertions relating to specific media, such as websites, could, in time, also be considered out of date. We want to future-proof this Bill and make it agile enough to keep pace with the ever-evolving media environment. The drafting of the legislation reflects this ambition. It is not about doing one particular thing but about being able to do all manner of things in the media environment.

I thank the Minister of State for his reply. The portal is welcome. I ask him to consider two things. Unfortunately, not all public bodies necessarily have the same practice as some Departments. Equally, not all Departments necessarily operate in the same way. Many of us have difficulty accessing guidance documents and circulars from particular Departments and we end up having to submit parliamentary questions in this regard. I acknowledge that is not the same kind of document but it is a parallel situation.

All I ask of the Minister of State is that, in his engagements with the relevant public bodies after this legislation has passed, he ensure that access to links and updates concerning what goes on the portal are shared as widely as possible. Portals will be useful for some of us because we will have a grasp of the totality of the information. Sometimes people will not go to a portal but to a public agency or body and having the relevant links in that context would be useful. If the Minister of State is not willing to consider our finely crafted amendments, then at least he might consider chatting to people in some of those public bodies. We might make some progress in this regard as well.

I appreciate what the Minister of State is saying and that he is taking on board our concerns. It is rare enough for me to praise the Government, but-----

The Deputy is very helpful to us.

The new thing that we have had in recent years of Government of Ireland announcements on the radio has been helpful in alerting people to things that are happening, because many people in this country listen to the radio. I appreciate that the area of communications and media is a rapidly evolving one and that we must be open enough to ensure that we are speaking to all the relevant demographics and constituencies that access their information through different media. Those radio advertisements have certainly been helpful. We will consider what the Minister of State said before Report Stage regarding how we could make suggestions then, but hopefully the Minister of State will take on board what we are saying as well.

I do not think that any assumptions are being made in the amendments regarding current standard practice. The fact that it is standard practice and good practice is a reason for putting this aspect into the legislation. I take the point, though, that none of us knows what the best place for information will be in 20, 30, 40, 50, 60 or 70 years' time. If we look through legislation, however, it generally deals with the here and now and prevailing procedural processes. While we do not know how all this is going to evolve, we do know that our website is going to be an important place for finding and accessing information over the next decade. We know that much. Websites may well evolve but they are not going to disappear overnight. My preference, therefore, would be to have this good practice specified in the legislation.

Does the Minister of State wish to respond?

I thank the Deputies for their contributions. I genuinely think that we are at one on all this. It is the Government's interest to ensure that all information is published. Anyone objectively examining how we went about our business in respect of undertaking consultation on the national marine planning framework right around the country will see that it was all about ensuring transparency and openness. It involved going into fishing villages, working with communities and trying to get their views. All the meetings that I had the privilege of chairing online were concerned with enabling transparency and openness and with trying to bring as many people on board as possible in that regard. We will continue to do that.

Regarding what Deputy Boyd Barrett said, we are happy to work with him on amendments, such as those he referred to, through to Report Stage. We want to make this the best legislation we can. Turning to what Deputy Cian O’Callaghan said, the marine spatial planning data tool is a portal and it is possible to see immediately how amendments like this can be counterproductive. As I said, we want to future-proof the legislation. It is the practice of the Government and of my Department to publish all these items on our websites. We encourage and we will be after public bodies to do the same. We have no issue with that.

This is a small point but to be clear, the amendments do not seek to limit other forms of publication and do not seek to restrict publication to this medium. Putting this type of standard practice and good practice into the legislation will not have a limiting effect and it will not prohibit other forms of communication. It would be an additional safeguard in the process.

We retain the right to return to some of these issues on Report Stage, depending on the Minister of State’s amendments in respect of the related issue.

That is fine.

Amendment, by leave, withdrawn.
Amendment No. 56 not moved.

I move amendment No. 57:

In page 25, line 6, to delete “section.” and substitute “section, where such additional publication will provide benefit and clarity for the public and/or promote environmental protection.”.

Amendment put and declared lost.

We move on to amendment No. 58. Amendments Nos. 58, 59, 69 and 70 are related and will be discussed together.

I move amendment No. 58:

In page 25, to delete lines 7 to 9 and substitute the following:

“(8) The Minister shall, in preparing, amending or revoking guidelines under this section—

(a) act consistently with—

(i) Article 1 of the Maritime Spatial Planning Directive establishing marine spatial planning to promote within the State, the sustainable growth of maritime economies, the sustainable development of marine areas and sustainable use of marine resources, whilst achieving good environmental status, as set out in the Marine Strategy Framework Directive;

(ii) the objective and requirements of Article 1 of the Marine Strategy Framework Directive, recognising that maritime spatial planning is to be delivered whilst achieving Good Environmental Status of marine waters, as specified in recital 2 to the Maritime Spatial Planning Directive;

(iii) the objectives of the Birds Directive;

(iv) the objectives of Article 2 of the Habitats Directive;

(v) the methodologies and requirements of the Maritime Spatial Planning Directive;

(vi) the Marine Strategy Framework Directive and any programme of measures for the State specified thereunder,

(b) have regard to—

(i) the National Marine Planning Framework;

(ii) the extent to which it has been developed consistently with the requirements of the Maritime Spatial Planning Directive and any gaps and issues arising consequently;

(iii) subsequent Maritime Spatial Plans;

(iv) the current and future pressures associated with fishing and aquaculture in the marine environment;

(v) the national assessment reports prepared for the State pursuant to—

(I) Articles 16 and 17 of the Habitats Directive,

(II) Article 8 and 17 of the Marine Strategy Framework Directive, and

(III) Article 12 of the Birds Directive,

(c) consult with:

(I) the Minister with any delegated responsibility for natural heritage;

(II) the Minister for Housing, Local Government and Heritage, if this is not the Minister;

(III) the Minister for Environment, Climate and Communications,

(d) take account and give due consideration to the input from the consultations with the public and bodies consulted on the guidelines or on any proposed revocation or amendments proposed to guidelines, and

(e) set out in writing how the matters, consultations and considerations in paragraphs (a) to (d) have informed and been addressed in relation to the guidelines being proposed, amended or revoked.”.

By this stage, of course, the Minister of State and his officials will have rumbled our cunning tactical strategy to make similar points regarding different sections of the Bill. We are doing so, however, because we are genuinely keen to ensure, whether we are talking about the policy statement, the policy guidelines, the policy directives, the special plans or the DMAPs, that the inputs into those policy statements and various EU and domestic legal requirements are adhered to, to the maximum possible extent.

I will not go through all the same arguments as when we proposed a similar set of amendments to section 6. The fact, however, that we have had to tease out with the Minister of State, and he has been gracious with his time, explanations for each of these parts of the policy guidelines framework and how they interact speaks to these aspects not being clear to those of us who read the legislation. While it is clear to the Minister of State and his officials, many people will have to use this legislation, including people from industry, fishermen and fisherwomen, coastal communities and environmental NGOs, for example. Therefore, the maximum amount of clarity not only regarding what these different pieces of the jigsaw puzzle will do but how they will be fully compliant with EU and domestic law and how we are going to ensure the appropriate inputs and outputs is key in this regard. To progress the matter, I will not speak individually to each of the amendments. The points are the same as those that I made regarding section 6. We still think it is important, however, to raise this now.

As Deputy Ó Broin said, these are similar to the previous amendments but relate to the directives and guidelines. These are key aspects and these amendments shall be incorporated into the legislation. It is important to explicitly write in that when directives and guidelines are being drawn up, they specify that the Minister must act in accordance with the birds directive, the habitats directive and the marine strategy framework. Such an inclusion would strengthen the assurances in respect of the Minister's wide-ranging powers. It would grant a greater level of protection in respect of our marine biodiversity and marine environment. I will not dwell on this point for long but, as others have said, these issues are of major importance, especially to coastal communities and people working in fishing, regarding developing sustainable fishing practices and protecting our marine wildlife. I could not think of a better way of strengthening the Bill than passing these amendments.

To summarise, the points have been made on the policy statement, the guidelines and the directives. The Minister of State's response, essentially, is to say that this is dealt with in section 31, and that our concerns around the public consultation, the screening for strategic environmental assessments, SEAs, and the compliance with all of the relevant directives are dealt with in section 31. There is no point in repeating ourselves, but I believe that we need to look to see if we are completely happy that it is all covered off under section 31. That is probably the job we have to do between now and Report Stage.

I thank the members for their comments. This grouping of amendments proposes revised considerations of the development of guidelines and directives and, as already stated by committee members in relation to the repetition, the plans prepared under this Bill are subject to all of the things set out in these amendments. What the amendments are attempting to achieve has already been achieved. The Bill is not a series of independent sections all of which need this level of technical drafting, rather it is a series of interconnected parts, each designed to supplement the other. One does not achieve compliance with any of the directives listed here by just liberally referencing each of them in various parts of the Bill. That is not how it works from a technical point of view. We must be sure that each part is, in and of itself, operable.

Amendment No. 58 sets out technically deficient considerations for the development of guidelines. The obligations set out would be almost impossible to comply with for the specific matters requiring direction or guidance. The obligations referenced are set out elsewhere in the Bill with regard to forward planning or compliance with environmental directives.

Amendment No. 59 relies on technically deficient section 6(3) proposed under amendment No. 33. Amendment No. 69 sets out technically deficient considerations for the development of directives that would, invariably, be impossible to comply with. Amendment No. 70 also relies on technically deficient section 6(3) proposed under amendment No. 33. I oppose these amendments.

I thank the Minister of State.

Will the Minister of State expand on why it would not be possible to comply with the requirements set out under our amendments? These amendments are much stronger than section 31 of the Bill and they are more detailed. As we discussed earlier in the week, they also have that hierarchy, which is important, and list the maritime spatial planning directive and our amendments to the marine strategy framework directive. Section 31 of the Bill does not list those and they are very important. I appreciate that they are referenced elsewhere under the directions of the Minister, but the all-encompassing section 31 does not list the maritime spatial planning directive or the marine strategy framework directive. These are very important for everything to do with maritime area planning. The Minister of State might elaborate on that.

Absolutely. It is because it is totally incoherent and totally inoperable. I ask the Deputy to consider what he is asking. In amendment No. 58, subsection (a), the Deputy is asking to act consistently with totally unrelated bodies. It is totally incoherent and we have already provided for it in a structured way that interconnects throughout the Bill. What the Deputy is proposing is totally inoperable. It just liberally lists off every single piece that is not related to act consistently with directives that are nowhere related to each other. As I have said, I have already provided for this in section 31 of the Bill.

The Minister of State clearly has a different view on this, but to me, these directives are highly relevant to marine spatial planning. The maritime spatial planning directive, for example, is not listed in section 31. It is not there. I believe that this is highly relevant to the Maritime Area Planning Bill 2021. I am quite concerned that the Minister of State is of the view that these guidelines, such as the maritime spatial planning directive, are somehow totally irrelevant. I do not understand that. I might be misunderstanding the Minister of State because I do not believe the Minister of State could be saying that these directives are irrelevant. They are obviously core to maritime area planning. Perhaps we could just get better clarification on that. I feel I must be misunderstanding Minister of State's comments.

Separate from the amendment, is the Minister of State actually suggesting that there could be a guideline that would not comply with these very clear legal obligations under EU law? Clearly, one guideline might not be relevant to all that is listed, but any guideline that is relevant to any of those directives surely has to comply with them. The Minister of State might have been a little bit over enthusiastic in his rebuttal of the amendment.

It is about the text that is being proposed.

The point I am making is that what is being proposed is totally inoperable.

For clarity, is the Minister of State suggesting that there could be any guideline that would not be compliant with the relevant requirements?

Certainly not.

I do not know how the Deputy could get that in what I have said. I am just making the point, very clearly, that we have it covered off through screening under section 31. I have been very clear here. To just liberally list off every single directive on each section of the Bill does not enhance the Bill. It makes it totally inoperable.

I am not saying I agree. I am listening and I am going to digest what the Minister of State is saying.

We do not have to agree on too many points, we might start to get worried.

I hear the Minister of State's argument that section 31 covers off all of our concerns, and this then applies to all of the things we have talked about including the statements, the directives, the guidelines. I see that we are coming up to another aspect which is a "direction". It should be very interesting to debate what is the difference between a directive and a direction, but we will move on to that one. The Minister of State's argument is to repeat these endlessly for each different stage and step and part of this process. I do not quite see why the Minister of State used the word "inoperable". The Minister of State might just say "unnecessary". I am not quite sure how the amendment would make the Bill inoperable. Perhaps the Minister of State will explain why it makes it inoperable. Surely the Minister of State is saying that it is not necessary because it is all covered under section 31. If everything we are looking for is under section 31, it is there already and what we are proposing is superfluous. This is what I thought I heard the Minister of State saying and now-----

Essentially, I am saying that it does not work.

Will the Minister of State clarify from what point of view does it not work? Is it the point of view of coherent legislation or the point of view of actually-----

Absolutely it is from the point of view of coherent legislation. It is technically deficient. This is what I have said.

I do not understand why ensuring the Minister would act consistently with the methodologies and requirements of the maritime spatial planning directive, as proposed in our amendment No. 69, is incoherent. That is not in section 31, and it would act in compliance with the marine strategy framework directive. These are not in section 31. They are not listed in that section. How would it be technically deficient or incoherent to include those? I am at a loss on that. It is a good amendment that sets out very clearly that the Minister-----

The maritime spatial planning directive is all over the Bill. The Deputy does not need to pick parts out of it. It is all over the Bill.

It is fine to say it is all over the Bill but what I want to understand relates to the Minister. Amendment No. 69 is on policy directives. Where is it in the Bill in relation to policy directives? Section 31 certainly does not cover policy directives. The Minister of State might point to where in the Bill that is covered.

It is not just the policy directive but all the other items as well that are not consistent with each other. I am being very clear in terms of the detail that it is not technically operable and that is our strict advice here on this front. I cannot say any more on it. That is the way it is.

While I do not necessarily agree I accept that is the Minister of State's but-----

I respect the Deputy's view too.

On the policy directives the Minister can give under this Bill, where is in the legislation does it specify, specifically in respect of the directives, that they have to comply with the maritime spatial planning directive and the marine strategy framework, for example? That is the core of my question.

Those obligations rest on the Minister. They absolutely do.

I appreciate they rest with the Minister.

They rest with the Minister irrespective of the legislation.

Absolutely. I appreciate that. However, where in the Bill is it explicit that is the case? That is the point I have been making and that is the point I am asking about. It is not in section 31. The Minister of State says it is in many other parts of the Bill, but where?

There is a significant danger of transposing other aspects that are not in the Bill. The Bill in itself is coherent in terms of section 31. Flowing from that, I have been clear that the technical deficiencies attached to listing all these various directives, which are not related or consistent with each other, in each section of the Bill does not make good legislation. They make the Bill inoperable.

These are not just various directives; they are the maritime spatial planning directives. I do not accept in listing them there that they are contradictory. I see the birds directive and habitats directive as complementary. The amendment and the case we have made for it stands well. I have not heard-----

All the MSP directives are in Schedule 1.

It is in Schedule 1 but where does it specifically say in the Bill that, in terms of directives, this needs to apply? That is the issue. As far as I can tell it does not, despite what we have heard.

I agree. To clarify our question, why would the Government list in section 31, as it has done, the birds and habitats directives but not the marine spatial planning framework directive?

To be very clear, I, as Minister of State, am obliged under EU law to comply with all directives. That is a fact. We are obliged to adhere to and comply with all directives. No matter how much we tease it out or go into it I am being very clear in the response that those obligations are already in the Bill. Just because the Deputies want to repeat them in every section will not make this better legislation when we must already comply with those objectives and thresholds.

I get that. Let us say we conceded-----

I do not think members get it when they suggest there is some pass on a Minister such that he or she can escape or evade complying with EU directives. They must be complied with.

First, there is a history in this country of non-compliance with certain directives. Let us not say that because directives exist Ministers and Governments comply with them because that is simply not true. We know there have been failures to-----

Then it is reinforced through the courts. That is the reality.

Yes, but there have been failures to transpose and failures to comply with directives. We have suffered big fines and there have been big oversights with respect to real things that have happened in the real world. There were subsequent acknowledgements we messed up and failed to comply. Some of these issues are outstanding. This is not a small matter. I understand the marine spatial planning framework directive is referred to in the Schedule. I get that. Let us say we concede the Minister of State is correct - I am not saying we are at this stage but we hear him - and there is no need to repeat endlessly the need to comply with everything as it is covered anyway. We are asking why, if it is all covered in section 31, would the Government not have that list once in section 31, which includes the reference to the other directives alongside the ones it has put in there, namely those on birds and habitats. That is a fair question.

That is one question and Deputy Ó Broin has another.

It is a simple technical question. Is it the case all articles of both the marine spatial planning directive and the marine strategy framework directive have been transposed into Irish law? Are there any aspects of those directives that have yet to be transposed? Is that what the problem is here?

They have been transposed, where appropriate.

Where appropriate, I understand.

Okay. I am not trying to drag this out but my question is specific. Are there any aspects of either of those two directives that have not yet been transposed?

This Bill is the MSP directive. That is what we are referring to under this Bill.

Okay. All I am asking is are there any aspects of either the marine spatial planning directive or the marine strategy framework directive that have not yet been transposed?

I am advised it is not relevant to this Bill.

Then I assume the answer is "No".

Can we reply to that question in writing?

Absolutely. I am aware it is a big question. I am genuinely trying to understand and listen to the arguments. If there are clearly bits of these directives that the Minister of State or his officials believe are not relevant to this Bill and that have not yet been transposed, then I can understand some of the comments he has made. If he could respond in writing before the next meeting of the committee that would be great.

Can we get a written response on the transposition of that directive?

I have a related question. This gets to the nub of it. If we got clarity on this we could move through this Bill much more quickly. Is it correct that these directives would require that before consents for development are given, the directives are fully complied with, which is what Europe wants, and then we can move to the issue of applications, consents, enforcement and all the rest of it but in the first instance we must have a plan, which must be compliant with the various directives? Rightly or wrongly, we have a concern that there may be development consents given where those plans are not fully in place. In particular, the relevant projects could get consents when plans are not in place. How would that stand in respect of the directives? That is one of our central concerns and one of the central concerns of people looking in here. If we could get clarity, it would help. Have people reason to be concerned? The ideal would be to have the marine plan, which is similar to a development plan. We know what can be done here and there and people will only be allowed do things in those places. Once this is up and running fully that might be the way it is going to be but in advance of that people do not necessarily have to be subject to a plan. If that is the case then that is our concern. Clarity on that would help us a lot.

In the first instance, we have a plan. It is the national marine planning framework. The plan is there. It is in existence. It has been passed by the Houses of the Oireachtas through resolution and all planning permissions must comply with it. Thus it is absolutely clear it must comply with all directives.

A framework is not a plan.

A framework is vaguer than a plan.

Let us be clear for the avoidance of doubt. It absolutely is a plan, and flowing from that will be DMAPs and area plans. The Deputy should be under no doubt - it is a plan for how we develop and govern our maritime area into the future. This is the first time that we have a coherent, strong and robust plan in that regard.

With all due respect, it is an advance on nothing. It is an advance on the Foreshore Act, yes. I fully accept that.

That is why I said it was the first time. The Deputy might note that.

Fully accepted. However, it is still not as specific as a DMAP or another plan with an acronym might be. Therefore, there is more flexibility for things to happen than there might be under a more specific plan. There is a difference between a framework and a DMAP. I am concerned that, if someone can get a development consent on the basis of a fairly general framework, it will be an easier threshold for a developer to pass than a DMAP or a more specific spatial plan under which we had decided that an area was protected, developers could do something in another area, etc. The framework does not go to that level of detail, yet we are envisaging that we will have plans that are that specific. Indeed, good and sustainable planning requires that level of specificity. This is the nub of our concerns.

I will let Deputy O'Callaghan back in, but then we will put the question, as we have had a great deal of discussion on it.

My position on this is that the Bill should be explicit in terms of the Minister and compliance with the maritime spatial planning directive and the marine strategy directive. This matter is not covered in section 31. I appreciate that the Government must comply with all EU directives, but that does not always happen in full. Indeed, fines have been paid over non-compliance. The Bill is much weaker for not having this explicit provision and there could be consequences to that. We have been slow in following these directives and have not been following them strongly enough. That is evident in how far behind other countries we are due to our slow approach to marine protected areas and how it has not been prioritised and resourced as it should be.

I reaffirm that the national marine planning framework covers every single inch of our marine area. It is the first of its kind, robust and very strong. There is no plan in the State as detailed as the NMPF. Large plans, for example, DMAPs, will flow from it.

Is the amendment being pressed?

Amendment put and declared lost.

I move amendment No. 59:

In page 25, lines 8 and 9, to delete all words from and including “, have regard to the matters listed in section 6(3)(a) to (f).” in line 8 down to and including line 9 and substitute the following:

“(a) act consistently with the matters listed under section 6(3)(a) to which the Minister is to act consistently with, and have regard to the matters which the Minister is to have regard to under section 6(3)(b), consult in accordance with section 6(3)(c), and give due consideration to the matters as specified in section 6(3)(d), and

(b) set out in writing how the matters, consultations and considerations in section 6(3)(a) to (d) have informed and been addressed in relation to the guidelines being proposed, amended or revoked.”.

Amendment put and declared lost.

I move amendment No. 60:

In page 25, between lines 9 and 10, to insert the following:

“(9) The Oireachtas when considering any proposed guidelines, or amendment or revocation of a guidelines under this section, either within a committee of the Oireachtas, or when either House considers motions in relation to a proposed maritime policy statement shall act consistently with the matters listed under section 6(3)(a) to which the Minister is required to act consistently with, and have regard to the matters which the Minister is to have regard to under section 6(3)(b), and give due consideration to the matters as specified in section 6(3)(d).”.

Amendment put and declared lost.
Section 7 agreed to.
SECTION 8

I move amendment No. 61:

In page 25, between lines 15 and 16, to insert the following:

“(3) The Minister shall always conduct a public consultation on the making of policy directive, or any amendment to or revocation of policy directives under this section.”.

Amendment put:
The Committee divided: Tá, 3; Níl, 6.

  • Gould, Thomas.
  • O'Callaghan, Cian.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

I move amendment No. 62:

In page 25, between lines 15 and 16, to insert the following:

"(3) The Minister shall ensure any new policy directives, or revocation or amendment of policy directives made under this section, shall first be subject to a screening determination for both Strategic Environmental Assessment and Appropriate Assessment, and such assessments shall be conducted where the screening concludes they are required.".

Amendment put and declared lost.

I move amendment No. 63:

In page 25, between lines 15 and 16, to insert the following:

"(3) The Minister shall ensure any new policy directives, or revocation or amendment of policy directives made under this section, shall be limited in accordance with the policies in the maritime planning policy statement.".

In the same way that it was helpful for the Minister of State to clarify the mandatory and non-mandatory guidelines, it would be helpful if he could, even in summary form, make as clear as possible the distinction between the mandatory and non-mandatory guidelines and policy directives. The amendment is fairly self-explanatory. It proposes that policy directives, and any revocation or amendment of them, should be fully consistent with the marine planning policy statement. I presume that will be the case but it would be nice to ensure it is legally required.

As Deputy Ó Broin indicated, this amendment seeks to ensure that any new policy directives would be limited by the requirement to be in accordance with the policies in the MPPS. If the Minister of State is not happy with the inclusion of this provision in the Bill, I would like to know why and in what circumstances he foresees that there might be new policy directives that would not be in accordance with the MPPS. What types of situations would they be? If he does not agree with the amendment, will he say why it is not needed?

Amendment No. 63 proposes to limit directives inappropriately to policies set out under the MPPS. This is an inordinate restriction and would preclude the issuing of directives on other necessary matters, such as where new domestic or European case law has clarified the operation of a procedure or EU directive and public bodies need to be instructed accordingly to ensure legally robust decision-making. Therefore, I oppose the amendment. In essence, the purpose of a policy directive is, as I said, to instruct a body to comply with policy in an area where it may not be compliant.

Will the Minister of State explain how the second part of his answer relates to the first part, which is that directives are related not just to policy but also to procedural matters, particularly arising from legal decisions and so on?

If a legal decision is taken, the public body must comply with it. It is up to the Minister to make a direction to instruct it to comply with policy on foot of a legal decision taken.

Okay, but how then does the amendment restrict the Minister in that regard? I fully accept the Minister of State's point regarding the policy implication arising from a court decision.

The amendment limits action to policies set out in the policy statement.

However, it is to be hoped that any legal decision would not contradict the policies in the MPPS. Such a decision would have to do with the failure of a public body, for instance, to adhere to the policy statement. How would this amendment, requiring compliance with the policies outlined in the statement, be undermined or challenged by a court decision?

The issue is that we need to capture any change. It could relate to DMAPs or any other area. That is the important point. We need to capture any change, not limit our capacity in this regard, as the amendment would do.

Is it the Minister of State's concern that we are limiting it to the MPPS?

However, is it not the case that all other aspects, including the DMAPs, the marine spatial plans or whatever else, have to sit under the MPPS? There should be nothing in those other aspects that is not consistent with the policy statement. They should include much more global, granular detail but they should not be inconsistent with it.

That is true but, in theory, a directive could affect something sitting under the high-level policy statement and we need the capacity to respond to that.

I will accept that.

What the Minister of State is saying seems reasonable but I would like some clarification. Is he envisaging the possibility that an illegal decision that might be taken in Europe about compliance with a particular directive might not be covered off in the policy statement because it is new?

Exactly. We need to be agile and not just limit the scope of action to the policy statement.

As a matter of interest, does that imply the necessity to review the policy statement subsequently?

Is the Minister of State saying that it may be possible for a policy directive to be issued that would not be in accordance with the maritime planning policy statement? Surely all directives, irrespective of whether they detail DMAPs or MSPs, have to be in accordance with the policy statement.

It is highly unlikely, but I understand it is possible. We are getting into "What ifs", which are difficult to predict.

I accept that although, given the nature of these matters, we have to try to hypothesise. The Minister of State is saying on the record that a directive that is not in accordance with the maritime planning policy statement, which is the overarching statement sitting above all of this architecture, is possible. That is a big admission even though it may-----

For example, the situation regarding oil and gas has changed in the six-year period since the statement was issued. We are not continuing any exploration, which is a significant change.

Explain that a little more so that I understand it.

That is an example of a significant change to a matter that was referred to in the MPPS. If a directive came through to the effect that we were no longer continuing with exploration, it would have to be revised.

It essentially implies a review of the policy statement.

Yes. I have said that.

Is the amendment being pressed?

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Gould, Thomas.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

I move amendment No. 64:

In page 25, to delete lines 16 and 17 and substitute the following:

“(3) The Minister shall—

(a) cause a copy of the proposed policy directive or amendment or revocation of a policy directive prepared under this section, to be laid before each House of the Oireachtas, together with any environmental assessment reports prepared thereon pursuant to obligations under the SEA Directive and the Habitats Directive, and associated consultation responses,

(b) notify each Committee and Joint Committee of the Oireachtas that—

(i) the proposed proposed policy directive or amendment or revocation of a policy directive and associated assessment have been laid,

(ii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the guidelines is presented to either or both such Houses,

(iii) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses, and

(iv) the proposed proposed policy directive or amendment or revocation of a policy directive will not be made and have effect until—

(I) a motion approving it, has been passed by each Houses of the Oireachtas,

(II) a motion to amend it, has been passed by each House of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) until the proposed policy directive or amendment or revocation of a policy directive has been subsequently published on a website of the Government,

and

(c) cause to be published on an appropriate website of the Government, and in two national newspapers in two consecutive weeks, and as soon as practicable after the proposed policy directive or amendment or revocation of a policy directive, and associated documents and assessments have been laid before the Oireachtas, a notice to the public that—

(i) such proposed policy directive or amendment or revocation of a policy directive and associated assessments have been laid before the Oireachtas,

(ii) indicates the date on which they were laid,

(iii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas,

(iv) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposal to the Minister and the Oireachtas, which must be considered before any motion to approve the proposal is presented to either or both such Houses

(v) any such proposed policy directive or amendment or revocation of a policy directive shall not have effect until—

(I) a motion is passed in favour of the proposal by both Houses of the Oireachtas,

(II) the proposal is amended further to a motion passed by both Houses of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) the approved policy directive or amendment or revocation of a policy directive are published on a website of the Government.”.

Amendment put and declared lost.
Amendments Nos. 65 and 66 not moved.

I move amendment No. 67:

In page 25, line 20, after “published” to insert the following:

“on a website of the Government and additionally, in such manner as he or she considers appropriate, policy directives issued under this section, where such additional publication will provide benefit and clarity for the public and/or promote environmental protection.”.

Amendment put and declared lost.

I move amendment No. 68:

In page 25, between lines 21 and 22, to insert the following:

“(6) The Minister, in making policy directives under this section, shall be limited to matters concerned with environmental conservation or environmental protection of marine biodiversity and avian species.”.

The Minister of State's officials probably told him privately that this was a cheeky amendment and we know he will not accept it. I suspect he will argue that it is far too restrictive, but it has a tactical purpose in this discussion. Many of us are trying to understand what the scope of the policy directives is and what kinds of matter they would include. The purpose of tabling this amendment is to afford the Minister of State the opportunity to give the committee, inasmuch as he can, a general list of the types of area such directives could include. Obviously, directives will not just deal with issues of environmental protection, marine biodiversity and avian species. Giving us as much clarity as possible in this regard would be helpful. If I am satisfied with the answer, I might buy the Minister of State a second pint and withdraw the amendment.

There is a lot resting on this.

I thank the Deputy for the generous proposal.

Amendment No. 68 proposes to limit directives exclusively to environmental matters, going even further than previous proposed amendments.

Directives under this proposal could not even clarify matters set out in the MPPS. This is the Maritime Area Planning Bill. Directives will issue from the marine spatial planning Minister, and the Minister must be allowed to ensure the efficient and effective operation of the marine planning system.

I appreciate where the amendment is coming from and we want to protect the marine environment, but these provisions relate to the operation of an holistic system that can relate to mundane technical matters. This Bill, as a whole, will result in a greater level of protection for the entire maritime area than has previously been the case. It introduces a plan-led system, previously lacking, and a consent regime that heretofore only applied to a limited area. The NMPF, on which a great deal of decision making rests, sets out a series of directional policies in respect of the protection of the marine environment.

While I agree with the sentiment of protecting the environment and taking seriously the protection of marine biodiversity, I oppose the amendment.

None of that surprises me. I am not asking the Minister of State to give us an exhaustive list of every area that such policy directives would include, but could he give us a flavour of the kinds of area? Some of us know what most of them would be from reading the Bill, but it would be helpful if the Minister of State put them on the public record.

Maybe my question was answered on Second Stage - I cannot remember - but why are we so far behind everyone else in terms of marine protected areas? How does the rest of Europe have so many more marine protected areas? Is there a reason for that?

As Deputy Boyd Barrett might have heard at the outset of this debate, the Minister of State, Deputy Noonan, will appear before the committee to provide an update on the progression of marine protected areas, on which consultation has concluded and in respect of which I hope legislation will be introduced.

That did not quite answer my question. I am genuinely asking for an explanation. This is not a critique of the Minister of State, as his is a new Government, but I am curious. Perhaps the officials know the answer. How are we so far behind in terms of marine protected areas?

It is not my area, but the Minister of State, Deputy Noonan, gave a detailed response on this matter in the Dáil the week before last and has agreed to appear before the committee to set out further explanations. He is doing a great deal of work on this issue and will shortly have proposals.

I will invite Deputy Boyd Barrett to that meeting, if he wishes. I will put him on the invite list.

The amendment covers one pillar of sustainable planning, that being, environmental, but that is not good planning-----

-----because we have to take into account all pillars. In no way am I going to start predicting the future or attempt to give a detailed list of every single body. All I can say is that, for sustainable planning, we have to take account of all of the pillars, and that is what we will do.

I accept that, and my question was not to go into so fine a level of detail, but since the Minister of State used the word "pillars", what other pillars are we talking about?

We are talking about the social pillar, the economic pillar and the environmental pillar. These are the three pillars that make up good and sustainable future planning.

I thank the Minister of State.

Is the amendment being pressed?

I am happy to withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 69:

In page 25, to delete lines 22 to 24 and substitute the following:

“(6) The Minister shall, in preparing, amending or revoking policy directives under this section—

(a) act consistently with—

(i) Article 1 of the Maritime Spatial Planning Directive establishing marine spatial planning to promote within the State, the sustainable growth of maritime economies, the sustainable development of marine areas and sustainable use of marine resources, whilst achieving good environmental status, as set out in the Marine Strategy Framework Directive;

(ii) the objective and requirements of Article 1 of the Marine Strategy Framework Directive, recognising that maritime spatial planning is to be delivered whilst achieving Good Environmental Status of marine waters, as specified in recital 2 to the Maritime Spatial Planning Directive;

(iii) the objectives of the Birds Directive;

(iv) the objectives of Article 2 of the Habitats Directive;

(v) the methodologies and requirements of the Maritime Spatial Planning Directive;

(vi) the Marine Strategy Framework Directive and any programme of measures for the State specified thereunder,

(b) have regard to—

(i) the National Marine Planning Framework;

(ii) the extent to which it has been developed consistently with the requirements of the Maritime Spatial Planning Directive and any gaps and issues arising consequently;

(iii) subsequent Maritime Spatial Plans;

(iv) the current and future pressures associated with fishing and aquaculture in the marine environment;

(v) the national assessment reports prepared for the State pursuant to—

(I) Articles 16 and 17 of the Habitats Directive,

(II) Article 8 and 17 of the Marine Strategy Framework Directive, and

(III) Article 12 of the Birds Directive,

(c) consult with:

(i) the Minister with any delegated responsibility for natural heritage;

(ii) the Minister for Housing, Local Government and Heritage, if this is not the Minister;

(iii) the Minister for Environment, Climate and Communications,

(d) take account and give due consideration to the input from the consultations with the public and bodies consulted on the guidelines or on any proposed revocation or amendments proposed to guidelines, and

(e) set out in writing how the matters, consultations and considerations in paragraphs (a) to (d) have informed and been addressed in relation to the guidelines being proposed, amended or revoked.”.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Gould, Thomas.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • Ó Broin, Eoin.

Níl

  • Burke, Peter.
  • Duffy, Francis Noel.
  • Flaherty, Joe.
  • Higgins, Emer.
  • Matthews, Steven.
  • McAuliffe, Paul.
Amendment declared lost.

I move amendment No. 70:

In page 25, lines 23 and 24, to delete all words from and including “have” in line 23 down to and including line 24 and substitute the following:

“(a) act consistently with the matters listed under section 6(3)(a) to which the Minister is to act consistently with, and have regard to the matters which the Minister is to have regard to under section 6(3)(b), consult in accordance with section 6(3)(c), and give due consideration to the matters as specified in section 6(3)(d), and

(b) set out in writing how the matters, consultations and considerations in section 6(3)(a) to (d) have informed and been addressed in relation to the guidelines being proposed, amended or revoked.”.

Amendment put and declared lost.

I move amendment No. 71:

In page 25, between lines 27 and 28, to insert the following:

"(8) The Oireachtas, when considering any proposed policy directive, or amendment or revocation of a guidelines under this section, either within a committee of the Oireachtas, or when either House considers motions in relation to a proposed maritime policy statement shall act consistently with the matters listed under section 6(3)(a) to which the Minister is required to act consistently with, and have regard to the matters which the Minister is to have regard to under section 6(3)(b), and give due consideration to the matters as specified in section 6(3)(d).".

Amendment put and declared lost.
Section 8 agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

Could I get a brief explanation on what subsection (2) means?

It enables the heritage section to discuss environmental matters and engage with the National Parks and Wildlife Service. It allows that section to provide input.

That is all I wanted to know.

Question put and agreed to.
Sections 10 and 11 agreed to.
SECTION 12

I movement amendment No. 72:

In page 26, between lines 26 and 27, to insert the following:

"(6) (a) Notwithstanding subsection (2), a permission granted under section 34 of the Act of 2000 in relation to an application made—

(i) pursuant to a requirement under section 225 of that Act, and

(ii) before the commencement of that subsection,

shall continue to have effect, and Part XV of the Act of 2000 shall continue to apply in relation thereto, as if that subsection had not been commenced.

(b) Notwithstanding subsection (2), Part XV of the Act of 2000 shall continue to apply in relation to an application for permission made under section 34 of the Act of 2000—

(i) pursuant to a requirement under section 225 of that Act, and

(ii) before the commencement of that subsection,

as if that subsection had not been commenced.".

This is a technical amendment required to ensure legal certainty and continuity for planning permissions applied for and granted prior to the commencement of the new provisions of the Planning and Development Act 2000 detailed in Part 8 of this Bill.

I am always suspicious when I am told something is simply "technical" because in planning everything is technical and has an import. Will the Minister of State give us some concrete or indicative examples of the kinds of planning permission we are talking about?

It is all planning permissions prior to the commencement of the Bill. The national marine planning framework is currently in place and law cannot be applied retrospectively, so this is to ensure continuity in order that the planning permissions currently granted in the maritime area will remain in place.

Under what set of rules would they have been granted before? Again, this is just my way of getting the Minister of State to put this information on the public record.

It is section 225 of that planning Act.

It takes in planning applications and approvals under the existing regime for the foreshore.

That is correct.

This applies to licences.

It is planning. Licensing is different and it is on the way to getting planning. This applies to planning permissions that have been granted.

It is planning permission. It does not in any way relate to the surveying activities.

No. Absolutely not. It relates to planning permissions that have been granted.

They would have been granted by local authorities.

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13

Amendments Nos. 73 to 77, inclusive, 79 and 81 may be taken together.

I move amendment No. 73:

In page 27, between lines 1 and 2, to insert the following:

" "maritime spatial planning" means—

(a) a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives, as defined in Article 3(2) of the MSP Directive, and in so doing the competent authority (M) or competent authority (D) shall—

(I) act within the context of the EU’s Integrated Maritime Policy (IMP) which includes, as its environmental pillar, Directive 2008/56/EC of the European Parliament and of the Council,

(II) support the sustainable development of seas and oceans,

(III) develop coordinated, coherent and transparent decision-making in relation to the maritime sectors,

whilst achieving good environmental status, in accordance with Directive 2008/56/EC, and as set out in recital 2 of the MSP Directive, on the objective of the EU Integrated Maritime Policy, and

(b) that maritime spatial planning shall thus be informed by, and act within that constraint of achieving good environmental status, and shall—

(I) take into account land-sea interactions in accordance with Article 4(2) of the MSP Directive,

(II) contribute to the objectives listed in Article 5 of the MSP Directive, applying an ecosystem-based approach, and to promote the coexistence of relevant activities and uses,

(III) fulfil the requirements laid down in Article 6 of the MSP Directive in respect of how MSPs are developed, as required by Article 4(4) of the MSP Directive,

(IV) fulfil the requirements of Article 8 of the MSP Directive on what they shall identify and contain, as required by Article 4(4) of the MSP Directive,

(c) have due regard to the particularities of the marine regions, relevant existing and future activities and uses and their impacts on the environment, as well as to natural resources, and shall also take into account land-sea interactions, and

(d) may include or build on existing national policies, regulations or mechanisms, provided they are in conformity with, and consistent with, the requirements and objectives of the MSP Directive, and where such policies have been made and approved by the Oireachtas;".

These amendments are about providing alternative definitions and objectives for the marine spatial planning with a stronger focus on environmental and social requirements. What is encompassed by maritime spatial planning must be clearly set out in the Bill, and it is very important we do it so we do not end up before national and EU courts and create potential delays in marine activity. It is essential we have sufficient marine protection with an emphasis on rehabilitation and conservation, which we are legally obliged to deliver. We should already have delivered that and we have been remiss in not putting in place sufficient marine protection, rehabilitation and conservation. We must move very swiftly to ensure we do that.

There are other complex environmental considerations that must also be taken into account in spatial planning. This is not discretionary, and that is why I spoke before about the importance of the directives relating to marine planning in that respect. They are legal requirements and are not discretionary. That is why it is important with the directives to understand the difference between transposition of a directive and conformity with directives. That relates to our previous conversation and it is why there are checks both on transposition and conformity. Of course, conformity is all about compatibility. What I was seeking in previous amendments was to ensure compatibility and what I am trying to do with this amendment is ensure compatibility as well.

I can give an example of good practice from another jurisdiction that relates to marine rehabilitation and conservation. Scotland has set up the Scottish marine environmental enhancement fund. It is a very good model and something we should do here. All wind and renewable energy in the marine environment has a condition of the licence that there must be a contribution to the fund. The fund is used to support communities, environmental and coastal groups that work in the marine and it allows them to carry out marine biodiversity projects, along with conservation and rehabilitation.

It is very important we write into the Bill as much as possible measures that will lead to that sort of good practice seen in Scotland. That is why I am putting forward these amendments.

Given we have only a few minutes left, I reserve the right to come back on some of the latter amendments in this group as I will only get to the first few.

Again, some of my questioning is really just an invitation for the Minister of State to explain the intricacies of this process a little more on the public record. Most of us have experience of terrestrial planning and we know the planning framework is the overarching strategy. There are also county and city development plans and local area plans, with ministerial guidelines in between, some of which are controversial and some of which are not.

I am understanding it better as we go through this process but we have a marine planning policy statement, a marine planning framework and then maritime and spatial plans. We will get on to designated marine area plans, DMAPs, in a later section. Specifically with the maritime spatial plan, I am still not clear what it brings to this part of the architecture that is not already in the other elements. My understanding is it may be geographically more limited and there may be some more detail.

At an earlier stage the Minister of State said there is no plan as detailed as the marine planning framework. In some sense that is probably not an accurate way to describe it in the sense-----

I said there is "no national plan" as detailed.

It is the only State-wide plan so that is a fair caveat. Let me get back to the detailed point because this is important. With a county development plan, for example, we have all the land uses mapped out and agreed. This is pertinent to the session we will have with the other Minister of State, Deputy Noonan, around marine protected areas, because until we have those or the interim measures, there will be a missing piece in the jigsaw. In the Minister of State's response to amendment No. 73, will he delineate what is the maritime spatial plan as distinct from the bits above and below it? As Deputy O'Callaghan mentions, we are proposing in the amendment to give some clarity to that.

We know the Minister of State will not accept the amendment.

We know that, and the Minister of State will set out the technical reasons for it. It would also be helpful if he were also to set out what is to be in that plan. Am I out of time or may I go on to the next one?

We will go to the Minister of State for a response on that and the Deputy may come back in again.

I just want to let members know that the response I have is very long.

This is a very important discussion. Pausing it at this point-----

It might be more appropriate to pause at this point because the response is very long.

This is as substantive a section as the previous one.

We will recommence our deliberations on amendment No. 73 on the next occasion. I thank the Minister of State and his officials for their participation.

Progress reported; Committee to sit again.
The select committee adjourned at 4.31 p.m. until 3 p.m. on Tuesday, 2 November 2021.
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