Peter Burke (Longford-Westmeath, Fine Gael)
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The grouping proposes a number of changes to the public participation procedures and additional steps in the Oireachtas approval procedures.

I will take participation first. In part, I think these amendments have been proposed because members may not have fully grasped the intention and function of the initiated text as a whole. This is understandable as what is proposed is innovative in an Irish context and builds upon the experience of the development of our first national marine planning framework. I caution members not to fall into the trap of assuming that public consultation and participation are synonymous. Formal public consultation is only one form of participation. Participation in the first national marine planning framework was extensive throughout the development process and not limited to the final consultation on a draft document. The draft could not have been prepared without the input of the public, stakeholders, NGOs, industry, Departments and agencies.

This Bill, through the tool of the public participation statement, seeks to place such participation arrangements on a statutory footing. I urge members to re-examine section 18 of the initiated text setting out the detail of what is intended to be included in such statements, in particular subsections (4) and (5). Many of the concerns raised in sessions to date, such as best practice, inclusivity, Aarhus compliance and appropriate use of media, will be specified in regulations that will guide the preparation of such statements. We are also conscious of the consultation overload issue raised by Deputy Boyd Barrett at the last session and we intend, insofar as is possible given the complexity of such plans, to minimise the administrative burden on stakeholders. The publication of the public participation statement will be the first step in the development of the next iteration of the marine spatial plan so the public will have early and full sight of when and how it can engage with the development process.

On amendment No. 78, formal public consultation arrangements on the draft plan will be set out in a public participation statement. The use of the term “full” is deficient legally and is open to argument that no public consultation, no matter how comprehensive, could be considered “full” or complete. The plan will also be subject to consultation requirements under the SEA and birds and habitats directives via section 31.

Amendment No. 80 would duplicate the provision of section 18(1) in respect of Article 9 of the MSP directive. Amendment No. 87 further details arrangements for public participation that are not necessary in the context of section 18. Amendment No. 88 repeats much of the previous amendments but is not necessary in the context of section 18. Amendment No. 89 would remove the requirement for compliance with the statement, subject to taking “all reasonable steps” in section 18(2). This section is necessary because factors outside the control of the competent authority may result in an element of the statement not being fully complied with. It would be incorrect for a plan to be unable to be made and years of work, participation and engagement to be wasted in such circumstances.

Amendment No. 90 is an alternative to No. 89 replacing “reasonable steps” with “legally required actions”. It is presumed that this is intended to ensure compliance with participation obligations; however, the language is not so limited and risks unintended consequences. In any case, such obligations are expressed elsewhere in the Bill and would apply even if unstated. Any development procedure that failed to comply with such obligations would not survive judicial review.

Amendment No. 91 seeks to limit the ability of the competent authority to amend the public participation statement to account for emerging and arising issues and is too restrictive. Such amendments may be practical in nature and expand the scope of participation or introduce a new mechanism. I believe our practice to date and the provisions of section 18 highlight our commitment to the best possible participation in the development of plans for the future.

Amendment No. 92 further details public consultation arrangements that are not necessary as they will be set out in regulations and the public participation statement. It also repeats elements of other amendments and the existing text that would lead to confusion, inconsistency and lack of clarity.

Amendment No. 93 relates to regulations in respect of the statement and sets out matters which the competent authority is already obliged to comply with. It places a lesser obligation to “act consistently with” rather than to comply with the directives stated in the amendment. This opens up the risk that these provisions are considered part-transposition of those directives while not giving them full effect.

Amendment No. 94 proposes that the Minister “shall comply with” the principles and policies of section 18(5). "Have regard to" is the standard terminology for preparation of regulations. On a technical level, the amendment does not work; for example, it would result in a requirement to “comply with compliance with Article 9 of the Directive”.

Amendment No. 95 purports to replace existing provisions that are already sufficient. It is overly restrictive. Minor amendments are concerned which are provided for under chapter 5 and consultation for DMAPs is provided for under section 23.

These amendments are not necessary. I point out to members that the national planning framework was a best-in-class view of how to deliver such a comprehensive document in terms of public participation at every step of the way. Page 196 of the NMPF details the number of public participation and consultation events held. Deputy Boyd Barrett will be happy to note none of them were in August or September.

There were also various meetings of our stakeholder advisory group. I had the pleasure of chairing three meetings from May 2020. The first of the meetings was in the Custom House in March 2018. The committee can see that this is four years of work through extensive meetings, through an advisory group and going around various areas including coastal towns to try to get the communities involved. We will take the workings from the Deputy's suggestions on how we do that into the future. With regard to Deputy Ó Broin's concerns on fees, we absolutely do not see that in any way being any part. It is very clear that if there is an amendment or change, once that is set aside, section 18 will be triggered and all of this consultation, which is the best in class and has been very wide-ranging, will be brought into action.