Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

I will try to respond. First, I cannot give members information I do not have. We shared the briefing we sent to the Office of the Attorney General with the committee. It is the same briefing, so we have been transparent about what we are doing. We are in consultation with the Attorney General's office in terms of getting advice - the type of advice the member appears to have received from a senior counsel this morning. I do not know who it was. I presume it is a good senior counsel but I must ensure that I take my lead from the legal advice that is available to the Government. As this process moves on, we will continue to take advice from the Attorney General on what we are doing. Changing the Constitution is a big deal. If one gets it wrong, it is difficult to correct. It is not like legislation, because there must be another referendum. We have seen in other areas where there have been unintended consequence and legal actions, both at home and abroad, to test the Constitution and its consistency with other legislative obligations and so forth.

The current position is that we have sent the briefing document the committee has seen to the Attorney General's office. We are asking her to provide advice on how best to proceed. I have made it clear to her that we want to try to do this. It is not a blocking exercise. We want to get it right. That is how we are proceeding. I will happily return to the committee to have the type of discussion mentioned when we have that advice. I cannot publish the advice but I can talk it through in respect of some of the issues that are being raised.

As to whether it is problematic, there are issues here on which I must obtain legal clarity in so far as that is possible. Until I have that, I cannot give the committee a definitive answer as to whether it is or is not problematic. There are issues here on which we have to be reassured. If we cannot get that reassurance, we will have to change the wording to ensure we are covered in the areas where there is concern. That is my point. We can potentially make that change on Committee Stage or Report Stage, but we would be better off doing it on Committee Stage rather then leaving it to the last Stage of the process.

It would probably be useful, during pre-legislative scrutiny, for the committee to speak to some of the stakeholders who have issues in this regard. Deputy Coppinger raised the matter of group water schemes. It would be helpful if the committee invited representatives from the National Federation of Group Water Schemes to appear before it. The federation has indicated concerns to the Department about this issue. Again, its members are trying to get their heads around what the State is proposing to put into the Constitution and how it will affect them. There are group water schemes all over the country that have being managed and paid for over many years. Some of them are working very successfully, others are under a little pressure. We must be supportive of those groups, as is clear in the Oireachtas water committee's recommendations. It is a different issue to suggest that we will simply take all of it into public ownership without suggesting how that would even work or who would take charge of it. I am sure many group water schemes would have a problem with that because they are running their own operations, and very successfully in many cases.

Senator Boyhan referred to the normal daily running and work of Irish Water. We must allow this single utility entity, which has had a difficult introduction, to get on with the work it must do.

In regard to privatisation of the water system, or concerns around that issue, when local authorities were in charge of the water system there was a lot more privatisation going on in terms of treatment plants. Local authorities did not have the capacity to put in place large water treatment facilities and so they contracted people in the private sector to build and operate them, many of which are working successfully. Irish Water has now taken over that responsibility. It is also building facilities because it has the capacity, not only in terms of economies of scale around financing but also economies of knowledge in terms of the teams it has, to run its own treatment plants. We need to be careful in what we are trying to do that we do not prevent Irish Water creating partnerships with the private sector that make sense in terms of innovation and new methods of treating water. In regard to the existing network of water treatment plants, some are owned and managed by Irish Water - I recently opened some of them - and some are operated on a contract PPP basis and they are working well. We need to understand the consequences of the wording being put into the Constitution for those relationships and those day-to-day practical operations.

I get the sense from Deputy Ó Broin - Deputy Coppinger has a slightly different perspective on this and I respect that - that what he seeks is that there would be public ownership of the responsibility around delivery of water. Deputy Collins's Bill proposes that the Government would bear responsibility for the protection, management and maintenance of the public water system. My concern is around the definition of the public water system. We need clarity on that in terms of what we are proposing to put into the Constitution. Whether we need to provide that definition in legislation is one of the issues on which we need advice from the Attorney General's Office. This about ensuring that the diversity of the current system can be managed within all of that diversity mix.

I do not want to get into the political debate around whether there was an agenda for privatisation. I have been involved in much of that discussion at various stages and there has never been any plan of which I am aware to privatise Irish Water or the Irish water system; rather there was a plan to introduce a much more efficient and cost-effective way of delivering water, with a conservation-based approach and a utility-based approach to providing water. Just as there has never been any attempt to private the gas network, there was never an intention to privatise the water network or its management.

We need to be cautious around changing the Constitution through a referendum. We need to learn lessons from the past and we need to try to get it right. From my perspective, I would encourage the committee to invite in some of the people who may consider that they might be directly impacted by what is being proposed. It would be important to get their perspective on that in terms of the practicalities of how the system runs today and any potential concerns of an impact of the kind we are proposing to make. We will continue to provide information. When I get more definitive advice from the Attorney General, I, or my officials - whichever is easier - will happily come back before the committee to discuss the consequences of that with a view to trying to improving the wording proposed. That is what the stage process is. Normally, a Government brings forward legislation of this type. If this was Government legislation members would rightly ask me about the legal advice on it because legislation does not get produced without legal advice. I am being asked to respond to Deputy Collins's legislation, it being used as the basis for what we are seeking to do. I am happy to do that but I will not be bounced into something that I regard as not having been fully legally tested and so on. I am afraid people will have to be patient. When I get the response from the Attorney General I can discuss it with the committee without publishing it and provide some suggestions in terms of how we an improve the wording, if that is necessary. If it not necessary, we can proceed without too many changes. I do not want to doubt the aforementioned senior counsel but it is the Government that will be blamed if we get this wrong, not Deputy Collins, with respect. The Government has a responsibility to ensure this is tested appropriately from a legal perspective so that we can get on and fulfil the recommendations of the Oireachtas committee on water and fulfil the aspirations of everybody here.