Ms Attracta U? Bhroin:

We sincerely appreciate the invitation to engage with the members on this important general scheme. We see this invitation as a very welcome acknowledgement that IEN, the coalition of national environmental NGOs in Ireland, represents a key constituency of stakeholders, with an interest in, experience of and expertise on these matters. I am joined by Ms Dubsky from Coastwatch, one of our member organisations. I very much appreciate her presence, particularly in light of the very complicated provisions in the general scheme in respect of foreshore issues.

As IEN's environmental law officer and representative for the environmental pillar on the planning advisory forum for the Attorney General's review, and having engaged in the review of the Office of the Planning Regulator, OPR, into An Bord Pleanála, albeit after the delivery of the phase 1 report, I was asked to prepare our submission and deliver this statement.

To inform our evaluation of the very significant changes to the appointments process for the board in these heads, we considered what would be desirable outcomes arising from any such legislation in terms of the appointments process and the nature of the boards to be realised from that process. First, with regard to a process for the appointment of ordinary members of the board, the legislation needs to be demonstrably capable of consistently facilitating a robust, transparent process with accountability, safeguards and appropriate Oireachtas oversight. Second, that process needs to be demonstrably capable of ensuring the establishment and maintenance of an independent board of impeccable integrity and with the requisite skills, experience, knowledge and diversity in representation, capable of discharging its functions in compliance with a significant set of legal requirements. Moreover, because the board is one that is entrusted with such a powerful and pivotal role at the apex of our planning system, with a profound capacity to influence our economy, society and environment, it and the process for establishing and maintaining it need to be capable of engendering the essential trust of the public and the various public authorities and applicants it engages with.

Central also to our considerations were the important legislative departure to establish An Bord Pleanála in the first instance in 1976 and the question of how the current system of appointments for the board came about. Important changes were made through the Local Government (Planning and Development) Act 1983, which removed the extraordinary discretion afforded to the Government in respect of board appointments under the original 1976 Act. The 1983 Act curtailed that discretion somewhat and established instead the basis for the current panel system, which we see in the Planning and Development Act 2000, with panels representative of civic society central to the process. Clearly, there is room for improvement in the context of the current panel system. Nonetheless, it reflects an important political commitment to society and to a principle of a board effectively comprising an independent jury of our society capable of and entrusted with making the ultimate decisions required of it. This engenders public support, particularly because of the involvement of civic society.

With this general scheme, however, there is a significant and unexplained reversion to extraordinary ministerial discretion. There is an example on the process side concerning the appointment of board members under head 5. The scheme proposes that the Minister should have total discretion to establish a "selection committee" - which does not, unlike in current legislation, represent civic society because the makeup of it is entirely at his or her discretion - or to devise some "other suitable independent, objective and transparent procedure". The Minister then has discretion to draw from that panel of candidates, chosen by whichever procedure he or she has decided upon, until again, at his or her discretion, the panel is refreshed, either by a committee or some other process. That discretion is further compounded by the discretion of the committee in its decisions and approach, including multiple layers of discretion in respect of whether the Minister "may require that the Committee ... may engage with the Public Appointments Service to assist in any aspects of the process". The Minister would also have extraordinary discretion regarding what to prescribe and to supplement the primary legislation through regulation. Entirely unexplained discretion is proposed in the context of when these and all provisions relating to the eventual Bill will be commenced and come into effect.

Further serious concerns arise regarding considerations and criteria for such board members and the balance of the board. For example, why is there no reference to legal understanding, and why is there no unambiguous provision regarding environmental sustainability, societal balance and departmental remove? This new process also arises in the context of further provisions which provide for further extensive discretion for the Minister to make an order to increase the number of ordinary members and to make other decisions on the size of the board, while also proposing the removal of Oireachtas oversight on such orders.

Particularly in the context of the need to quickly provide for a robust appointment process and of the outstanding conclusion of the OPR's report, and debate and cross-party consensus-building that ideally will follow from this, the committee is also urged to consider the merit in preserving, while improving, the existing panel system provided for in section 106 of the Planning and Development Act and-or make recommendations to provide for very significant safeguards in the primary legislation concerning the significantly different and new system proposed, and the public consultation which should accompany that. The committee is further urged to leverage this as an important opportunity to raise with the Minister and the Department the compromise, apparent or otherwise, to the independence and efficacy of the board if the Minister moves to leverage powers under section 104(4) to make temporary nominations to the board from the Department or the staff of An Bord Pleanála. The Department's representatives indicated that intention this morning in their opening remarks.

The committee has been urged to consider complementary legislative measures to provide for the integrity of the appointed board. I has also been asked to consider the potential benefit of revisiting the appointments process for the chairperson of the board, including to ensure that it is truly independent of the Department.

The changes to the foreshore legislation are very significant and concerning in terms of their potential unintended consequences and the absence of detail on what is prompting such changes to the definition of "foreshore" and the analysis undertaken thereon. Having delivered our opening submission before the deadline last Tuesday, we would welcome an opportunity to elaborate on our concerns in the context of members' questions following on from the hearing with the Department's representatives earlier this morning.

I thank committee members for this opportunity, and we will endeavour to answer any questions to the best of our ability and revert promptly with any details or clarifications sought.