Oireachtas Joint and Select Committees
Thursday, 4 November 2021
Select Committee on Housing, Planning and Local Government
Marine Planning Area Bill 2021: Committee Stage (Resumed)
I move amendment No. 104:
In page 32, between lines 9 and 10, to insert the following: “(7) Where the competent authority (M) has prepared and published on a website of the Government a DMAP in accordance with Chapter 6*, the Minister may designate under this section, and with all necessary modifications to this section, a public body to perform any functions under this Act in relation to that DMAP that would, in the absence of such designation, otherwise have to be performed by the competent authority (M).”.
I move amendment No. 105:
In page 32, to delete lines 28 and 29 and substitute the following: “(h) the existing DMAPs, the existing maritime usages and activities,
(i) the existing DMAPs and the existing maritime usages and activities proposed to be taken into consideration during the preparation of the DMAP, and to highlight any changes in relation to the existing situation,
(j) the basis for the identification of the existing uses and activities,
(k) the nature and extent of ecological surveys conducted for the area of the DMAP, including in the skies above the area of the proposed DMAP, as well as in the sea and on the seafloor, and when the surveys were conducted and over what period,
(l) details on what major ecological data deficiencies and gaps have been identified and how these are proposed to be filled and by when and by who and how including in respect of the associated costs,
(m) details of inadequacies in the NMPF in respect of the DMAP area, and implications of issues arising given how the NMPF was developed what it does and does not specify relative to the requirements of the MSP Directive,
(n) the purpose and objective behind the creation of the DMAP,
(o) the proximity of the DMAP to other DMAPs or proposed DMAPs and the nature and objectives of those DMAPs or proposed DMAPs,
(p) details of any known environmental sensitivities, including if the area is significant for characteristics such as being quiet area or a dark area or other characteristics which might make it suitable as for consideration as a Marine Protected Area,
(q) details of any representations made to the competent authority (D) in respect of the pursuit of a proposed DMAP, including in the 3 years prior to enactment,”.
The amendment will expand the list of issues to be considered by a competent authority when forming a designated maritime area plan, DMAP. It includes matters such as the nature and extent of ecological surveys conducted for the area of the DMAP, including the skies above the area of the proposed DMAP, as well as in the sea and on the sea floor. The skies above are included because marine activity can have an impact on birds and other wildlife, so there need to be ecological surveys of activity that would happen in a DMAP area that could impact on birds. The list includes also requirements for when the surveys would be conducted and over what period, as well as details on what major ecological data deficiencies and gaps have been identified and how, when and by whom these are proposed to be dealt with. Further requirements relate to information such as associated costs and issues such as the proximity of the proposed DMAP to other DMAPs, an issue we touched on previously, and its nature and objective.
Amendment No. 106 will expand the consultation requirements for proposed DMAPs to include prescribed bodies, the Minister with responsibility for natural heritage and the public. I think this is quite a good amendment and I hope the Minister of State will not have any issues with it.
The Bill, at section 21(5), requires the competent authority only to publish its proposal on its website. Amendment No. 107 will require the publication of the decision by the Minister to allow the draft DMAP to be prepared on the basis of the proposal. This is important for transparency. Without the amendment, the initial steps in the DMAP process could be advanced with little public awareness. The amendment is important, therefore, to ensure public awareness of the initial process regarding DMAPs.
One of our many concerns is that the national marine planning framework, NMPF, is not fully compliant with the directives.
It sets out fairly general policy objectives, some of which are laudable while others are not so laudable in the case of liquid natural gas, LNG, storage and infrastructure. However, it is not really a plan. It is not ecosystem-based and it does not guarantee that the load the sea can take in terms of development is fully considered in the round on an ecosystem basis and, therefore, there is the potential to massively overload the marine environment with inappropriate developments because it is not really specified. It is about general objectives. Our concern is that the DMAPs arising from that must ensure that the gaps we believe exist in the national marine planning framework are plugged properly. It is not even clear to us that the DMAPs must be fully compliant with the marine spatial planning directive and various EU directives. Could the Minister of State tell us where in the Bill can we find the requirement to be fully in compliance with the marine spatial planning directive and other directives specifically in terms of DMAPs? Given our concerns in this regard, this is an attempt to ensure that all the necessary study and public consultation are done and all the concerns for environmental sensitivities are fully explored and we have the necessary consultation around heritage with the Minister and consult the public fully regarding the development of any DMAP because we see the DMAPs as plugging the gap for the lack of detail in the national marine planning framework.
The detail here is to ensure the generalities are covered and that protections are put in place so that public consultation is taken on board and this Bill is compliant. There are so many things in this Bill that we all want to support and ensure happen but we want to ensure public consultation and that the Oireachtas has oversight regardless of whether it involves the ecosystems, heritage, who is responsible and when the work will be done. If accepted, these amendments will do that.
Before dealing with this grouping, it might be helpful to the members to explain a little further how sections 21 - proposals for DMAPs - and section - 22 draft DMAPs, etc., - are intended to operate. I must initially advise the members of a referencing error in section 23 - public participation on DMAPs. Section 23(1) provides that the competent authority (D) shall publish its public participation statement after complying with section 22 - preparing a draft DMAP. It is intended instead that the statement is to published as soon as possible after the DMAP proposal has been approved. I apologise for any confusion this may have caused and we intend to correct the error on Report Stage.
A competent authority (D) will submit a DMAP proposal to the competent authority (M), which will review the proposal to ensure compliance with this part and the MSP directive. The proposal will also include a draft public participation statement. As soon as possible after approval, the proposal and statement are to be published. This serves as the starting point of the DMAP development process. Through the participation processes, it is anticipated that the DMAP will evolve from the proposal as new information, issues and considerations are raised. This was certainly our experience in the first national marine planning framework resulting in a far better outcome than strict adherence to early thinking.
At the proposal stage, it is very much a case of known knowns, known unknowns and unknown unknowns. If we waited until all data gaps were identified and filled, a DMAP would never progress beyond proposal stage. It is through the DMAP development process that much of the detail such as data gaps and location-specific issues will emerge and be considered to determine the appropriate outcome to be expressed in the DMAP. This is why participation has been so key to maritime spatial planning to date and will continue to be under this legislation. This will also be a new process for everyone - officials, the public, stakeholders and industry. As our collective experience in making DMAPs grows, that learning can be applied to future DMAPs though section 21(4).
I now turn to the amendments under consideration. Amendment No. 105 proposes a number of additional matters to be specified in a DMAP proposal. A number of these are already provided for generally by the initiated text or are details to be examined or emerge from the DMAP development process itself. Subsections (h) and (i) are duplicative to a certain extent. DMAPs when made will form part of the national marine planning framework and are to be considered in the preparation of the DMAP under section 22(1)(c). Subsection (i) is unclear in both language and intent. It is presumed that this is intended to detail the interaction of existing and future proposed usages. This is appropriate to examine explore during DMAP development - not the proposal, which, as mentioned, above is only the starting point. Subsection (j) is already covered broadly in the evidence base under section 21(1)(f). Subsections (k) and (l) are matters to be explored in depth during the development process. Subsection (m) is not an operable provision. It presupposes inadequacies in the national marine planning framework and deals with other subjective matters impossible for a competent authority (D) to undertake in the context of DMAP development. It also would in effect turn the oversight structures of the regime on their head. Examination of what the national marine planning framework can do better next time is a matter for the review of the framework itself. Subsection (n) is already covered under section 21(2)(a) in the objectives of the national marine planning framework that the DMAP is seeking to achieve or support. Subsection (o) is already covered as part of the DMAP development considerations under section 22(1)(c). Subsection (p) is not operable as marine protected areas do not yet have a legal existence. It should be noted that the specific environmental circumstances of a DMAP area will have to be, as a matter of necessity, considered and explored in the context of existing and proposed usages in order to specify the environmental mitigation and beneficial measures to be specified in the DMAP under section 22(2)(h).
Regarding subsection (q), the meaning of the term "pursuit" is not clear but it is presumed to mean lobbying of the kind discussed at earlier sessions. Amendment of the lobbying and access to information on the environment-freedom of information legislation is the appropriate vehicle for such changes.
One can of course see why this amendment cannot be accepted. However, it does not appear that there is too much distance between the existing text and the intention and purpose of the proposed amendment. What is mainly at issue is how explicitly these matters are stated and where in the overall process they occur. I think everyone will agree that the vital point is that these elements are undertaken, where appropriate, and not precisely where they happen. It is anticipated that DMAPs may take many forms and serve many purposes, and not only direct marine analogues of terrestrial plans or for industrial sector plans. For example, it has it has mooted that it may be possible to prepare a DMAP in respect of sea grass meadows. The possibilities for DMAPs are almost endless, as long as they serve to deliver the objectives of the national marine planning framework. The legislation was crafted with this variety in mind. Drilling too far down into specifics for the proposed requirement provisions endangers that flexibility and will present some of the best uses of what we believe is the most powerful marine spatial planning tool in this Bill.
Amendment No. 106 proposes to require consultation on a given proposal prior to finalisation. In spirt and in principle, this is right and proper and I fully agree. Recall, however, that the proposal is just the starting point for DMAP development. The consultation on the proposal and the development of the DMAP are one and the same process, given the intended participatory and evolutionary nature of the development process. It is about as comprehensive a consultation process as possible.
We are innovating here, moving away from a static set piece formal consultation process only model into a participatory emergent model where the outcomes arise from the process. This we strongly believe reflects both the fundamental spirit, wording and intent of the maritime spatial planning, MSP, directive.
Amendment No. 107 proposes a requirement to publish reasons for approval. There is only a single reason for approval that will apply to all DMAP proposals and it is set out in section 21(4)(a). That reason is that the proposal complies with all the requirements of Part 2 and the MSP directive, insofar as they relate to the proposal. A proposal either meets that standard or it does not. For the above reasons, I oppose this amendment also.
I welcome that the Minister of State has acknowledged the error and that he is going to correct it. Related to that is the issue of unknown knowns. Part of what we are trying to do here in having a good planning process is identifying unknowns that are risks to marine environment and trying to see how they will be addressed in the process. I have a few concerns. One of my key concerns is that there is not sufficient provision in the legislation to ensure DMAPs, and the process around them, are being carried out in line with the marine spatial planning directive. That is a core concern.
I agree with what Deputy Boyd Barrett said. I have a huge concern that the overall process is an incremental approach to planning and that it is looking at filling in gaps rather than first doing a thorough, plan-led, detailed approach that is incremental and stage-by-stage. After the last meeting, I thought about the Minister of State’s comments on the public consultation process. It is clear the Minister of State and the officials put much work into the public consultation process. It is important to acknowledge that. However, the question on public consultation is never about how much work the people working on it put into it. Neither is it about how good the people leading the public consultation process think it is. It is about how good the wider public and stakeholders think the consultation process is. That is not a criticism of anyone. It is normal in any consultation process that people who have put in all the work feel they have done a thorough consultation process. It is also normal that the general public and stakeholders might feel that it maybe was not as good, and that there was not enough awareness. That is a quite a natural gap.
What we are seeking to do through these proposed amendments is to ensure that consultation is as strong and robust as possible, from the point of view of stakeholders and the general public, as opposed to people who are burdened with all the work in running the public consultation process. It is important to acknowledge that no matter how much work is put in, and how thorough a public consultation process is, it may not meet expectations of the public. However, the key point is that consultation is strong enough to elicit the key information from stakeholders and from communities and that it is elicited at an early stage in the process. The more that is brought out at an early stage in the process, then more complex issues and a larger number of issues can be resolved at an earlier stage.
The issue here is around the gaps in the process around DMAPs. We have identified weaknesses in the process as presented in the Bill. We are seeking to strengthen it through these proposed amendments to make it a more robust process. A more robust, clearer, stronger process is in the interests of everyone, as well as the marine environment. A more robust process will work for all stakeholders. One of the issues to date is that there has been a lack of a robust planning process. That is causing issues for people who are seeking to develop renewable wind energy, as well as everybody else.
I thank Deputy O’Callaghan. I suggest that we also address amendment No. 108 now because it is related to this grouping. That will mean that amendments Nos. 105 to 108, inclusive, will be in this grouping. Amendment No. 108 is on “coexistance” and “colocation”.
The Minister of State accepted the last amendment in this vein. The logic is clear in our seeking to put in "coexistance" instead of "colocation". The thinking behind this proposed amendment is informed by an ecosystem approach. Can things survive together in the same area without a significant impact on ecosystems and on biodiversity? Could a particular type of development in a particular area have a negative impact on other things we seek to protect and preserve? We do not want an imperative in this Bill to colocate, for example, liquefied natural gas, LNG, terminals with a marine protected area. We have to have both. We want coexistance that guarantees the continuation of vital ecosystems, marine biology, and livelihoods that might be made in that area by particular groups. That is the logic behind the proposed amendment. The Government accepted this in a previous amendment. Maybe the Government can indicate that it is going to do so again.
On the known knowns, the known unknowns and the unknown unknowns, that is vaguely humorous on one level. However, it is quite serious on another level. I am still unclear on this, but it seems that anybody, or at least quite a few people, can do a DMAP. These people might want to do a DMAP for very different reasons. I am concerned and confused about that. What is the objective of that particular DMAP? If, for example, a Department is particularly concerned about developing industrial offshore wind, that would be its objective. It would want to do a DMAP to facilitate that. However, that could have significant knock-on impacts for heritage, for protecting fishers’ livelihoods, for impacts on the local community, for marine biodiversity, and so on. The lead body would have a particular objective. In that context, arguably, it might not have a hell of a lot of interest in filling in the gaps on the known unknowns or, even more so, the unknown unknowns that are not set out in the national marine planning framework or that sort of detailed knowledge of a particular marine environment.
We are trying to get an acknowledgement that those known unknowns, and even more so the unknown unknowns, are often things that are only known by people who really live and operate in the area and thus have knowledge and experience of a particular marine environment, whereas a Department that has the objective to do a particular thing may not know any of that stuff and would have gaps in its knowledge. Therefore, we want it written into legislation that before we decide that such a body is going to do the DMAP because it has a particular objective, we want to know the following. First, what is its objective, on which there would be consultation. It should not just be up to the Minister to say a body can do the DMAP. Second, we want an acknowledgement, as part of the decision-making process, of what we do not know and have to find out before we make a decision about whether a particular body is competent and whether its objectives are acceptable and appropriate for this particular marine environment.
Amendment No. 108 proposes to delete “colocation” and substitute “coexistance” in section 22. I accept the principle of this amendment. My officials will work with the Office of Parliamentary Council to prepare an amendment to this effect for Report Stage. The Members may consider withdrawing their amendment on the basis of such a commitment.
In connection with the other points that have been made, I with first deal with the marine spatial planning, MSP, directive. Section 21(4) outlines how the directive must be complied with and section 24 gives oversight of the directive. In terms of bringing the proposal together, section 21 outlines clearly the conditions required to be assessed and reflects what is contained in the national marine planning framework. Therefore, it is my view there is robust oversight that will ultimately require Oireachtas approval.
I move amendment No. 106:
In page 32, after line 38, to insert the following:“(a) consult with prescribed bodies on the relevant proposal,
(b) consult with the Minister with responsibility for natural heritage,
(c) consult with the public on the relevant proposal,
(d) give due consideration to the consultation responses prior to making any decision on the proposal,”.
I move amendment No. 107:
In page 33, between lines 3 and 4, to insert the following:“(b) give notice in writing to the competent authority (D) of the reasons for approving the competent authority to prepare a draft DMAP, based on such proposal, and
cause such decision and relevant proposal to be published on a website of the Government, or”.
I move amendment No. 110:
In page 39, line 1, to delete “significant”.
This amendment proposes to delete the word "significant" from the legislation in respect of the avoidance of mitigation measures. The use of the word "significant" here effectively allows the Minister make classes of amendments under regulations which are considered non-material. There is an issue in that in the Bill what is non-material or inconsequential is not restricted. There is not a circumscription on it so there is a particular danger there in the power that it gives to the Minister. Mitigation measures can be very important, as I am sure everyone here agrees, particularly in trying to avoid any negative and adverse impacts on the integrity of the Natura 2000 sites. As we know Natura 2000 sites have not been defined to the degree that they should be and there is significant more work that needs to be done there to protect them. This deletion is significant in trying to improve the protections of ecological sites and also in not to giving the Minister such acarte blanchein deciding that by amendments under regulations, he or she can consider not to deal with issues that need to be addressed.
"Significant" is a get-out clause because what is "significant"? We think that any amendment to a maritime spatial plan, MSP, or a designated maritime area plan, DMAP, should be subject to the same level of scrutiny and all the sort of requirements that the preparation of an MSP and DMAP would involve. These are the public consultations and the full compliance with all of the directives and all of the matters that we have discussed, whereas if one has a category of not-significant amendments, these could potentially allow amendments that some might think significant, but can be classed by a Minister as not being significant, and therefore get around the necessary protections and so on, that we are very keen should exist in protecting our marine environment.
I thank the Cathaoirleach. Amendment No. 110 proposes to remove the word "significant" from section 28(3)(c) in defining what is a non-material amendment. This seemingly small change would, in effect, make all amendments material, essentially removing all utility from this section.
This section is intended to be a practical measure to correct minor errors and to introduce trivial tweaks without having to rerun the entire process. I understand that there are concerns that this section might be used to sneak through major changes to DMAPs and MSPs but that is simply not the case and cannot happen. Sufficient protection has been built into the principles and policies set out in sections 28(3)(a), (b) and (c) and for those reasons, we oppose the amendment.
That clarification from the Minister of State is helpful as he has said that it is about minor errors or trivial tweaks, which is now on the record. The issue I have here is that that is not laid out in the legislation. However, the fact that the Minister of State has said that and has put it on the record makes it clear that it should not be used for anything beyond minor errors or trivial tweaks.
I have a further question for the Minister of State. He has said that DMAPs are required to comply with the marine spatial planning directive which, of course, they are. On marine spatial plans in this legislation, section 17(1) specifies a number of the articles of the marine spatial planning directive and there is no such wording on DMAPs. Why are we not doing the same in respect of DMAPs in the legislation that we are doing for marine spatial plans?
We could get out the dictionary and look up the definitions of "trivial", "insignificant", "minor" and "inconsequential", but I think we have covered comprehensively what a significant matter is. I will put the question on that basis.
I move amendment No. 111:
In page 39, between lines 26 and 27, to insert the following:“CHAPTER 6Competent authority (M) may make DMAPs
Competent authority (M) and DMAPs
29.(1) Subject to subsection (3), the competent authority (M) may prepare and publish on a website of the Government a DMAP in accordance with Chapter 3and the MSP Directive in respect of one or more than one of the following: (a) all or specified activities of a competent authority for the purposes of the MSP Directive;
(b) acting as a coordinating body for some or all of the competent authorities for some of their activities;
(c) one or more than one designated geographical or sectoral area, or both, of the maritime area. (2) The competent authority (M) shall be deemed to have all the functions necessary to perform functions for the purposes of exercising his or her power under subsection (1).
(3) Subject to subsection (4), the provisions of Chapters 3to 5shall, for the purposes of subsection (1), apply to the competent authority (M) as if references in those provisions to the competent authority (D) were references to the competent authority (M).
(4) The following modifications shall apply, for the purposes of subsection (1), to the provisions of Chapters 3to 5: (a) section 20shall be treated as being deleted (but without prejudice to the generality of section 20(7)once the competent authority (M) has prepared and published on a website of the Government a DMAP in accordance with Chapter 6);
(b) section 21(1)shall be treated as if the words “he or she decides to exercise the power under section 29(1)” were substituted for the words “its designation under section 20as such”;
(c) section 21(3)and (4)shall be treated as being deleted;
(d) section 21(5)shall be treated as if the words “he or she has prepared the relevant proposal, publish, or cause to be published, such proposal on a website of the Government” were substituted for the words “it has been approved under subsection (4)(a)to prepare a draft DMAP based on the relevant proposal, publish, or cause to be published, such proposal on its website”;
(e) section 21(6)shall be treated as being deleted;
(f) section 22(1)shall be treated as if the words “relevant proposal concerned has been published in accordance with section 21(5)” were substituted for the words “competent authority (D) has been approved under section 21(4)(a)to prepare a draft DMAP based on the relevant proposal concerned”.
(g) section 22(4)shall be treated as being deleted;
(h) section 23(1)and (3)shall be treated as if the words “a website of the Government” were substituted for the words “its website”;
(i) section 24shall be treated as being deleted;
(j) section 25(2)shall be treated as if the words “after section 24has been complied with” were deleted;
(k) section 26(2)shall be treated as being deleted;
(l) section 28(4)shall be treated as being deleted;
(m) section 28(5)shall be treated, in the definition of “relevant provisions”, in paragraph (b), as if the words “and subject to Chapter 6if applicable” were inserted after “is a DMAP”.”.
I move amendment No. 112:
In page 40, line 3, to delete “The Minister” and substitute “Subject to section 31, the Minister”.
Amendments Nos. 112 to 114, inclusive, collectively introduce revisions to the provisions for compliance by public bodies under Chapter 6. That Chapter obliges a public body to adopt such measures that are necessary to secure the objectives of the national marine planning framework, with directions under section 30 issued where the body does not do so.
Amendment No. 112 is a technical amendment to enable the introduction of a new fair process procedure in a new section 31. Amendment No. 113 provides that section 30 directions can apply to more than one public body and that such directions are published online.
Amendment No. 114 introduces a new fair procedure provision to issue a draft direction under section 30 to the body concerned and allow an opportunity to the body to clarify matters or put in place measures that would make the direction unnecessary. It would not be appropriate to publish a draft direction as the Minister may not be in possession of the full facts in a particular case and the draft direction may have been issued in error.
As was much discussed and eventually clarified in the first session, amendment No. 117 provides that the marine planning policy statement is subject to the SEA and AA obligations of section 31.
Chairman, do you want to move the other amendments before I go ahead?
Amendment No. 115 proposes to set out requirements of the respective directives. Those requirements are set out in the transposing legislation. It is not necessary to restate the detail in this legislation. In fact, as mentioned earlier, there is a risk of this proposal being considered a partial transposition and therefore legally defective or a risk of divergence or inconsistency between both pieces of legislation. It is safer and neater for the Statute Book to refer generally to the necessary legislation. It should be remembered that this is an avoidance-of-doubt provision.
Amendment No. 116 duplicates the effect of amendment No. 117 and is not necessary. I oppose the amendment.
I wish to go through the Government amendments and I have some questions and clarifications to seek.
Regarding amendment No. 112, whereby the directions to the Minister are subject to safeguards in section 31 in respect of SEA and AA obligations, what exactly is intended here?
This is a new section relating to the fair review of the original section 31, which relates to the SEA and AA requirements. The new section replaces the fair procedure aspect of it. Is Deputy O'Callaghan asking how the fair procedure would work? That is detailed in section 31. The steps are set out in detail on page 16.
We will roll back the tape because I might not say it in exactly the same way. We have a number of amendments in this grouping, amendments Nos. 112 to 117, inclusive. Amendment No. 115 seeks to insert additional wording into section 31 as in the published Bill. This is in the Minister of State's amendment.
This is very hard to keep up with. The Minister of State's amendment No. 112 seeks to delete the reference to "the Minister" and substitute the words "subject to section 31". Section 31 relates to the appropriate assessment and strategic environmental assessment. Will the Minister of State explain very simply what he is doing here? The words "the Minister" are being taken out and replaced with "subject to section 31". What exactly is the change? I am just trying to get my head around it.
No. Let me try to clarify, or maybe the Minister of State wishes to do so. The amended Bill would say "subject to subsection 31, the Minister", and then the Bill would continue. It would not just say "the Minister".
The issuing of that direction is subject to appropriate assessment and strategic and environmental assessment. Does that involve all the necessary consultation with the public and so on and notification of the public that the Minister is making such a direction to the competent authority?
It actually is not that clear, to be honest. It says it will be subject to the habitats and birds directives and Directive 2001/42/EC. Does that include notification of and consultation with the public in terms of the issuing of the direction? Will the Minister of State clarify that?
Okay, and I see what the new section is doing. It must give explanations, essentially, to the public body that has been designated around why it is giving this direction and so on and so forth. Does it have to consult and notify the public about the intention to give a direction to the public body in this new section?
This is an enforcement mechanism and it is giving someone a direction to comply, so it is different. It is giving someone a direction. If he or she is not complying with legislation, it is an enforcement mechanism to do so. It is about oversight.
As we are trying to clarify things, I am inclined to discuss them one by one. On amendment No. 113 which relates to section 30, I want to clarify something. Section 30(1)(a) to 30(1)(c), inclusive, reads:
(a) the implementation of maritime spatial planning,
(b) compliance with the National Marine Planning Framework, or
(c) compliance with the State’s obligation under the MSP Directive.
For purposes of clarity, what could be in the implementation of marine spatial planning that is not covered by compliance with the national marine planning framework or with the State’s obligations under the MSP directive? In other words, what could be in 30(1)(a) that is not covered by 30(1)(b) and 30(1)(c)?
Also on section 30, there is not public participation or consultation with any other body when the Minister decides to issue a direction, except with that body. The Minister of State might explain why that is the case.
There is the same consultation issue with section 31 which we have just discussed. If the Minister of State is willing to look at that, it is positive. My concern is the amount of latitude that is given here. I mention amendments Nos. 115 and 116.
I know the Minister of State gave his response before we moved it but amendment No. 115 is about seeking to strengthen the language around our obligations under EU law. It is about ensuring we go further than simply not contravening EU law and directives such as the habitats and birds directives. We should have greater ambition than simply not to contravene. We should be ensuring our plans and policies are compatible and consistent with these directives and obligations. That is what amendments Nos. 115 and 116 seek to do. I do not understand why we are pursuing this approach, which I feel is cutting across a number of issues in this Bill. It is a minimalist approach. I do not think seeking that our plans are compatible and consistent is necessarily a best-in-class approach or anything like that. It is just a fairly basic legislative approach we should be seeking to take, rather than just saying we will not contravene EU law. I do not think that is too much to look for, expect or ask for. I appreciate the Minister of State has read out his response to that.
He may wish to comment further on why he will not take the approach that would ensure the Bill is compatible and consistent with the directive.
One of the problems we have had in several areas is the failure to implement EU environmental directives properly and proactively. Ireland has been caught out significantly for that, with Derrybrien being the obvious example. Ireland is paying €15,000 a day in fines as a result of that. I suspect we will find ourselves in serious trouble over the Donegal landslide. There is a difference between doing our best not to breach a directive and proactively trying to implement it. Many of these directives are very proactive. They are trying to achieve positive objectives rather than just limit damage. We think the wording we have proposed is better in that it states that we wish to pursue proactively the objectives of these directives rather than just limit potential damage. Damage limitation is not the right basis on which to pursue environmental objectives.
I have a quick follow-up to my previous comments. As regards section 30(1)(a), my concern relates to the significant latitude its wording potentially provides. What are the limitations or what is the circumscription on that? Where in the legislation is that limited or defined in terms of what it means? There is a significant amount of latitude for almost anything-----
I am referring to section 30(1), which states:
The Minister may give a direction to a public body to adopt such measures as are specified in the direction relating to— (a) the implementation of maritime spatial planning
The phrase "implementation of maritime spatial planning" is potentially extremely broad. Paragraphs (b) and (c) of the section are specific, but my concern is that "implementation of maritime spatial planning" could mean anything. What in the legislation provides a definition or safeguards in that regard?
To follow up on the comments of Deputies O'Callaghan and Boyd Barrett, we believe our wording is stronger and more ambitious. Trying to set a minimum target of damage limitation or not contravening an EU directive is not the kind of attitude that should be included in the Bill. We should be more ambitious and set a higher standard. We believe our wording sets out to achieve more than the wording in the Bill as it stands does. The Minister of State should consider taking it on board.
In the first instance, we have had a debate in terms of the directive and the legislation complying with same. I am happy, based on the advice I have received from my officials and the Office of the Attorney General, that it complies with both directives referenced in the earlier sessions. To transpose a directive word for word does not make for good or more robust legislation. That is our firm view and we will not be conceding on that point.
To clarify, with regard to directions, as I stated to Deputy Boyd Barrett, we will consider publishing the direction but in terms of consulting regarding when the Minister issues the direction, we will not concede on that point because it is an enforcement mechanism and the Minister needs to have the authority and power to ensure compliance with the legislation and policy. I wish to be clear on that for the avoidance of doubt.
On the final point made by the Minister of State, will the notification be after the direction is made or before notifying the public that there is an intention to make a direction? That may be specified in the wording of the Bill.
Because it is being used as an enforcement measure. There is oversight by and safeguards for the Minister, but he must have enforcement powers to ensure the legislation and the planning policy have been complied with and, therefore, he must have the power and authority to issue the directive on that basis.
I wish to be clear on this. In the context of the power of the Minister to issue a direction, is the only direction a Minister can give under this section a direction to comply with something he or she believes the competent authority is not complying with?
Absolutely. The reasons are set out in section 30(1). That is correct. It is similar to the situation under current planning policy. One may not be in possession of all the facts when a draft direction is issued and one has to go through the process, but the Minister has to have the capacity and power to issue the direction and publish it at the end point, when all those determinations have been made.
On amendment No. 115, we are not trying to transpose the wording of the directives into the legislation. Through the amendment, we are seeking to ensure the word "compatible", which is the key thing here, is included in the legislation. That would strengthen the Bill. It is not a radical idea for it to be compatible.
The word "compatible" is key here. Why would we not want the Bill and this section of it to be compatible with the directive rather than simply not contravening it? That is a significant difference. It is the nub of the issue here. From time to time, various Ministers and Government Deputies like to use the phrase "best in class". I will use Government language. Simply not contravening the directive is struggling to reach the level of worst in class. The Bill being compatible with the directive might reach kind of average. I do not understand why the Minister of State will not accept that wording.
We believe the legislation is based on the best advice from the best drafters we have in the Oireachtas. I can genuinely say to the Deputy that there is no black hole here in terms of trying to get away from directives or walk away from obligations. That is absolutely not the case. We are arguing over and back on these points. It is a matter of disagreement between us.
The point is that it is consistent and compatible. That is a more proactive approach and the Minister of State should consider it. His point is that the rest of amendment No. 115 is unnecessary and already covered. I think that is what he is saying and we will consider his comments on that.
However, the particular phraseology of "does not contravene" is definitely minimalist wording. I repeat the point made earlier that we have been guilty of a minimalist approach and we have been caught out badly on it. There has to be a proactive approach to achieving the objectives of directives. Directives are not just guarding against doing bad stuff; they are also trying to set out to achieve things that we are quite short of achieving in many areas of environmental endeavour. It is a reasonable consideration to change that wording and I ask the Minister of State to reflect on that aspect of amendment No. 115.
I have listened to Opposition Deputies on many occasions through this process. We have taken suggestions from them and I will do so, where I can. However, if we look at the language the Deputies are trying to introduce, the word “compatible” is subjective. It is the same with “full public consultation”. It leaves everything open to legal challenge down the road because there is ambiguity surrounding the language and it is too subjective. We are trying to put the most robust, technically best legislation together on the best advice. I cannot concede on that point. However, I have demonstrated through the committee hearings that where I can yield and where I think it is a valuable contribution, which the majority of contributions are, to be fair to the Opposition, we will work with them. However, I cannot in this instance because it is too subjective.
The other important word in our amendment is “objectives”, which is not in the Minister of State's amendment. It is not just “consistent” and it is not just “compatible”, which we have discussed. We say “objectives” and the Minister of State does not. The directives have objectives. That is the other point we would make.
I move amendment No. 113:
In page 40, to delete lines 8 and 9 and substitute the following: “(2)(a) A direction under this section shall be in writing and may apply to one or more than one public body.
(b) The Minister shall cause a direction under this section to be published on a website of the Government at the same time as it is given to the public body concerned or as soon as is practicable thereafter.”.
I move amendment 114:
In page 40, between lines 12 and 13, to insert the following: “Steps preliminary to deciding whether or not to issue direction under section 30
31.(1) This section applies where the Minister is minded to give a direction under section 30(in this section referred to as the “direction concerned”) to a public body (in this section referred to as the “public body concerned”).
(2) The Minister shall, in the interests of procedural fairness, give a notice in writing to the public body concerned to which is attached a draft of the direction concerned stating that-(a) the Minister is minded to give that direction to that body, and(3) Where the Minister receives submissions referred to in subsection (2)before the expiration of the period referred to in that subsection, he or she may, after having regard to those submissions-
(b) the body may, if it wishes to do so, within the period specified in the notice (being a period of not less than four weeks from the giving of the notice) make submissions in writing to the Minister on the direction.(a) give the direction concerned to the public body concerned with such revisions to the direction as the Minister considers are warranted in view of those submissions,(4) Where the Minister receives no submissions referred to in subsection (2)before the expiration of the period referred to in that subsection, he or she may-
(b) give the direction concerned to the public body concerned without any revisions to the direction if the Minister considers that no such revisions are warranted in view of those submissions, or
(c) decline to give the direction concerned to the public body concerned if the Minister considers that-(i) in view of those submissions, the direction is not warranted, or
(ii) for any other reason, the direction is no longer warranted.(a) give the direction concerned to the public body concerned, or(5) Where subsection (3)(c)or (4)(b)applies, the Minister shall, as soon as is practicable after making the decision referred to in that subsection, give notice in writing of that decision to the public body concerned.”.
(b) decline to give the direction concerned to the public body concerned if the Minister considers that, for any reason, the direction is no longer warranted.
I move amendment 115:
In page 40, lines 16 to 25, to delete all words from and including “(1) For” in line 16 down to and including line 25 and substitute the following: “(1) For the avoidance of doubt, the relevant competent authority shall, in the preparation of anything to which this subsection applies, ensure that-(a) the thing is both consistent and compatible with the objectives, of following acts of the institutions of the European Union, or any provision of an Act of the Oireachtas enacted or made for the purposes of giving effect to any such Act, and that the thing does not contravene:(i) the Habitats Directive;(b) that screening determinations in respect of requirements for strategic environmental assessment are undertaken and strategic environmental assessment is undertaken where such screening determines it is required, in accordance with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 20011 on the assessment of the effects of certain plans and programmes on the environment and national legislation for the time being in force to give effect to the Directive, before any approval of the thing is sought from the Oireachtas, or the thing is given effect, and
(ii) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 20011 on the assessment of the effects of certain plans and programmes on the environment, the SEA Directive;
(iii) the Birds Directive,
(c) that screening determinations in respect of requirements for appropriate assessment are undertaken and appropriate assessment is undertaken where such screening determines it is required, in accordance with the Habitats Directive and national legislation for the time being in force to give effect to the Directive, before any approval of the thing is sought from the Oireachtas, or the thing is given effect.”.
I move amendment No. 117:
In page 40, to delete lines 27 to 31 and substitute the following: “(a) the marine planning policy statement;
(b) guidelines issued under section 7;
(c) policy directives issued under section 8;
(d) each draft MSP;
(e) each draft DMAP;
(f) a proposed material amendment under section 28.”.
I move amendment No. 118:
In page 41, line 31, to delete all words from and including “The” down to and including “satisfied” and substitute the following:“The Minister may by regulations specify the data to which the Database applies, being data that the Minister is satisfied—”.
Amendments Nos. 118 to 120, inclusive, amend section 34, which provides for the maritime authorisation database. The initiated text inadvertently captured far too broad a range of approvals. It is safer to specify, by regulation, the specific authorisations that will be subject of this chapter. This will also provide greater clarity and certainty for all concerned.
We will not necessarily be opposing this, but I want to find out more about it. The database is only for authorisations. Does that not mean that we are missing something here in terms of forward planning? Should it not be more consistent with the standards for data and information that are set out in Article 10, for example, of the maritime spatial directive, so that the database should be used for planning? What kind of timeframe are we looking at for the delivery of the database?
I would like an understanding of how the database is going to work, in slightly more plain English, in terms of authorisations and how the database will be built up. What are we trying to achieve with the database?
In the first instance, we must get the legislation through and it will be a decision for the Government to proceed then. In essence, it will be more specifically set out in the regulation. It was too broad and encompassed, for example, the registration of all sea captains. We are carrying a new robust process by instructing other bodies to give us information which we will make publicly available. This is a best-in-class mechanism that we are going through.
A lot of what we have discussed in recent weeks and at the committee has been about making sure that we are fully transparent in everything that is happening and that all of the information is available to the public where it is appropriate. I wish to confirm that is what this database does. Are there any concerns regarding the GDPR?
That is exactly it. It is trying to have the best, most transparent process for the maritime jurisdiction, which we will all coexist in and use. That is a key point. We want to be as transparent as we can. This is new in terms of instructing bodies to make information available to the public in a one-stop-shop process. That is what we are trying to do. That is clearly contained within the section of the Bill to which I referred in terms of the types of consent, authorisations, licences, etc.
Submissions are one thing; lobbying is regulated under the lobbying legislation. It is a separate piece of legislation. We already referred to freedom of information and lobbying as coming under different legislation.
We are getting into semantics here. The lobbying legislation is very clear in terms of the obligation it places upon the lobbyist to comply with the legislation and publish details of what lobbying took place. That legislation is different from what we are dealing with here.
I am trying to tease out concerns about the pre-planning or forward-planning stage.
Will the forward planning part be captured by this? If it is captured by this, will it be published only at the point of an authorisation at the end of the process? Is it transparent and publicly accessible in the database only at the very end? Will people be able to go onto the database to see, for example, that 15 early stage processes are taking place throughout the country? I totally appreciate that a lobbying register is a separate process. When people are engaging at the early stages will they be able to find it in the database? Will it be available to the public? Is it just at the end of the process that people will be able to find it in the database? There is a fair difference between these. Having this information publicly available and searchable at the end of the process is not as useful as being able to search it during the process.
Deputy Cian O'Callaghan is asking whether this will be live. While the process is ongoing will the information be put on the database so people can review what inputs go into it? With regard to the point made by Deputy Boyd Barrett, any submission that would play a part in decision-making, including lobbying, would need to be included. I know there is a lobbying section and I am not looking to go into that. My point is that if the decision-making process is to be open and transparent anything that feeds into it must be included in the database.
With regard to the forward planning aspect, this is only about authorisations so it is post facto. Would a database not be a place also where we build up information on matters that could be relevant to any planning application or objective for planning development protection of the marine environment, even in advance of particular consent or particular applications? This is especially the case if the Minister of State is using the phrase "one-stop-shop". Surely this is exactly it. There is nothing wrong with duplication with the lobbying Act if it is all in one place. There would be a one-stop-shop where people could go and get all of the information that might be relevant to a particular marine area and live applications, as Deputy Gould said, and not just a list of the consents that have been given.
This is more for my information than anything else. If people were to lobby on something like this would they not be formally making a submission and, therefore, it would be contained in the database?
Absolutely. It is all in one place and that is the lobbying Act. I can see where the Deputies are coming from with regard to putting lobbying requirements in every piece of legislation. I have been through the Land Development Agency Act and other legislation. There is one piece of legislation that governs lobbying and the obligations of entities to comply with it. What we are doing here is very positive. Every determination that will lead to these decisions and determinations will be in a publicly available portal, which we aim will be live. I can understand fair criticism on lobbying and people take a different view. Our view is that we have overarching legislation that compels entities to conform with it and it is an offence if they do not do so. In the Bill we are trying to make all of the information available in the most transparent manner we can. I hope people will welcome it. This is a positive move.
My point is on where there is not an authorisation. If surveys are done that do not lead to authorisation will they be captured in the database? If they are not, it is a waste of knowledge that could be useful.
If this work is done and submitted but does not result in an authorisation and it does not go that far, the database will still capture the information. Building up knowledge on the marine environment is very important.
I move amendment No. 119:
In page 42, to delete lines 3 and 4 and substitute the following: "(2) Without prejudice to the generality of subsection (1), regulations made under that subsection may specify the particulars of the relevant data to which the Database applies that are to be entered in the Database.".
I move amendment No. 121:
In page 43, between lines 6 and 7, to insert the following:
Amendments 121 to 123, inclusive, collectively provide for the potential delegation of certain functions under the State Property Act from the Department of Public Expenditure and Reform to MARA in relation to the sale of the maritime area. Such sales might be appropriate in certain very limited circumstances, such as where a proposal intends to reclaim a part of the maritime area and it would subsequently cease physically to be a maritime area.
I reassure members on a number of matters. Even if a sale were effected instead of a maritime area of consent, MAC, grant, any development would still be subject to the provisions of the Planning and Development Act. This is no "end run". The land in question, which is currently the foreshore, is vested in the Minister for Public Expenditure and Reform. I do not think the Minister, Deputy McGrath, will mind me saying that along with all of his predecessors he has guarded this ownership jealously and the areas involved generally have been very trivial. At present, foreshore consents, and MACs if this Bill is enacted, are the best means of ensuring appropriate returns for the State for the use of its property. I must clarify that the provision to sell already exists under the State Property Act. All the Bill will change is how such sales might be administered in future.
This is pretty concerning, I have to say. Perhaps the Minister of State will clarify what requirements exist under the State Property Act to notify the Minister, the Oireachtas and the public about the sale of public property, in this case marine property. Look at Coillte's record of disposing of property, one instance of which I stumbled upon in the past week with regard to selling 36 acres of forest in Enniskerry. There are many more examples and even more egregious examples of Coillte disposing of property. It seems to be able to do it without any requirement to notify anybody. The idea we are proposing a mechanism whereby MARA or any other body would be allowed to dispose of public marine property without significant scrutiny, notification to the Oireachtas and public awareness would be extremely worrying as far as I am concerned.
On amendment No. 122, what sort of functions does the Minister of State envisage being delegated from the Minister to MARA? Will he give some clarification on the thinking there and how wide-ranging that could be?
If the Minister of State could clarify the matter I raised, it would be helpful.
On amendment No. 123, I have huge concerns. The sale of marine areas which are State-owned could be done by MARA as opposed to the Minister. Will the Minister of State clarify what areas of the marine and seabed we are talking about? Would a sale involve the land under the seabed? Does it include the area above the seabed? What is included in it? The territorial seas extend 12 nautical miles from the shore. What oversight and safeguards would be in place? On what basis would decisions be made to sell or not sell?
The key difference her is that if a Minister sells public land, there is accountability. The Minister is politically accountable to the Oireachtas and the public through elections and everything else. If a body such as MARA sells public land, there is not the same level of accountability. It is a public body accountable to the Minister but the individuals on the board would not have the same level of accountability to the public or the democratic process as the Minister has. Having the ability to sell reside with the Minister provides a political and democratic safeguard. A board is not subject to the same level of direct democratic accountability and scrutiny. That is a key concern I have. I ask the Minister of State to address those points specifically around accountability and safeguards.
Is there any other example the Minister of State can give where the Government or Minister has divested that power of sale to other public bodies? Local authorities can determine whether they sell publicly-owned land through the democratic process with publicly-elected county councillors. I seek examples of other public bodies. We have hospitals and all sorts of entities that own land. Do others have this power or would it be unique to MARA?
Like others, I have concerns in relation to oversight and safeguards, who makes decisions, accountability and transparency. Maybe the Minister of State has answers. I hope so. We are asking the questions because this a very important issue and it is vital we get it right.
The Department of Public Expenditure and Reform will remain the decision maker. MARA is carrying out the administration of the function. Existing provisions under the Department of Public Expenditure and Reform will remain in place and that Department will have the ultimate say on the disposal. We are not changing that. We are not giving the power to sell to MARA but the power to administer. The power to sell and dispose of the asset remains with the State and the Department of Public Expenditure and Reform. We are not changing any of those existing functions. It has happened, I am told, maybe five times in the last decade, in very rare instances. The State is the 100% interest here and that is critical.
To answer Deputy Cian O'Callaghan, it is the seabed that is referred to.
I may have missed it but where is the delegation to MARA limited to administrative functions? That is not how I read the amendment, which provides:
The Minister for Public Expenditure and Reform may, with the consent of the Minister and the MARA, delegate to the MARA, subject to the conditions (if any) specified in the delegation, any function of the Minister for Public Expenditure and Reform under the State Property Act 1954 to sell or otherwise dispose of any part of the maritime area that is State-owned.
That does not in any way limit MARA to purely administrative powers or say that the power remains with the Minister. The amendment says the two Ministers can agree to delegate all their powers in relation to disposal of State-owned maritime property to MARA and that will not change until the Minister explicitly makes a decision to revoke that delegation of power. That is extremely worrying and unacceptable.
In relation to Deputy Higgins's very good question, in what way is MARA accountable? A local authority is accountable for the disposal of assets. There are votes of elected representatives and that gives the opportunity to the public to be aware, to consult and so on. Where is that accountability here? I do not see it.
We have not got an answer to the question I asked in my initial contribution. Could the Minister of State spell out the conditions that surround the decision of the Minister under the State Property Act to dispose of publicly-owned territory, land or property? From what I can see, whatever conditions exists are wholly inadequate, judging from the experience of Coillte, which seems to be able to dispose of property without anybody knowing. I found out a week ago it is selling a forest and still have not got an answer from Coillte, the Minister or anybody as to why-----
It is relevant to the disposal of environmental assets. I have to insist on that point.
What bit of our maritime area, extending to the exclusive economic zone, EEZ, and including the foreshore and so on, is not State-owned? I would have thought it is all State-owned, unless we have privatised parts of our maritime area and seabed. I did not think we had but maybe it is already happening. What part of the maritime area, which is between seven and ten times the size of the land mass of this country, is not State-owned? Does this relate to every bit of the maritime area?
We need clarification, as Deputy Boyd Barrett said, on exactly what is meant by "maritime area that is State-owned"? Is that the entire maritime area? It seems to me, reading this amendment, that it is fairly black and white that it allows the Minister for Public Expenditure and Reform, with the consent of the Minister, to delegate to MARA the function of selling or otherwise disposing of any part of the maritime area that is State-owned.
It does not say the Minister can have the administration of a sale or disposal process carried out by MARA. This implies fairly clearly that the decision to sell and the entire process around that can be delegated to MARA. If that is not the Minister of State's intention, this amendment should be withdrawn and a different wording provided specifying how MARA can be involved in the administration of the sale or disposal process. Otherwise, I very much fear the amendment will open the door to a whole range of things the Minister of State does not envisage, bearing in mind his comments on the amendment.
I have huge concerns in this regard. If marine areas are sold off and are then subject to private interests, that potentially compromises the designation of an area as a marine protected area because the private interest can say it bought it for a specific amount with the expectation there would not be various restrictions put on its activity and so forth. It potentially compromises our ability to designate Natura 2000 sites that have not yet been properly designated as such. It really allows for a huge amount of discretion in these matters. I would appreciate if the Minister of State could clarify that point.
As I have made clear, we are not changing the ownership. The provision relates to an administrative function MARA will be undertaking. To be absolutely clear, ownership is retained by the Department of Public Expenditure and Reform. However, we will look, in section 38, at the potential for setting an additional administrative function to strengthen that aspect. We can commit to doing that if members are agreed that I will come back with it on Report Stage. I hear their concerns in this regard. While I consider the safeguards sufficient, we can have a look at strengthening the provision to state specifically that MARA is just the administrator, not the decision maker. That function is retained by the Department of Public Expenditure and Reform on behalf of the State. However, I will look at the wording with members' comments in mind.
I appreciate the Minister of State's acknowledgement of our concerns. However, to me, there are few things more important than clarifying this point. I would also like him to answer some of our other questions on this point, as much as he can do in this meeting. Notwithstanding his generous willingness to consider our concerns, I could not support this amendment or this section in any shape or form until our concerns are clarified. Amendment No. 123 includes the word "sell". I take the point about what the Minister can do and so on. Will the Minister of State clarify what area he is talking about in reference to this amendment? Will he explain what is referred to by "any part of the maritime area that is State-owned"?
As I said, we will look at the administrative aspect. In terms of the State Property Act and the thresholds the sale of State property has to go through, that is not a matter for this Bill. It is set out in separate legislation. We can look at trying to get a brief on that for the committee.
It would be helpful to have clarify on this point. The 12 nautical miles is State-owned, is what I am hearing. Who owns the parts that are in our maritime territory beyond the foreshore, or what was the foreshore? It will not be the foreshore any more, which is another point. There will not be a foreshore after the Foreshore Act goes and the 12 nautical mile zone, or 22 km zone, is gone. What area are we talking about?
Given the Minister of State's helpful comments and the current wording, which would, contrary to his intention, allow MARA to sell, perhaps he will withdraw these amendments and come back with a proper wording on Report Stage. As it stands, amendment No. 123 is highly objectionable.
I move amendment No. 123:
In page 43, between lines 14 and 15, to insert the following:
"Delegation by Minister for Public Expenditure and Reform
38. (1) The Minister for Public Expenditure and Reform may, with the consent of the Minister and the MARA, delegate to the MARA, subject to the conditions (if any) specified in the delegation, any function of the Minister for Public Expenditure and Reform under the State Property Act 1954 to sell or otherwise dispose of any part of the maritime area that is State-owned.
(2) Where a function of the Minister for Public Expenditure and Reform is delegated to the MARA under subsection (1), the delegation shall remain in force until that Minister revokes it.".
I move amendment No. 126:
In page 45, line 1, to delete "this Act" and substitute "Part 3, 4, 5or 6".
Amendment No. 126 is a technical amendment to define more precisely MARA's role in enforcement under the referenced provisions of this Bill. Amendment No. 127 is similarly technical in nature and provides greater certainty and clarity in respect of MARA's enforcement functions.
I move amendment No. 127:
In page 45, to delete lines 10 to 15 and substitute the following: “(i) the undertaking of all administrative responsibility for foreshore authorisations, including—(i) performing functions under or in relation to such authorisations as if—(I) the authorisations had been granted (or otherwise given) by the MARA, and(ii) investigating instances of suspected offences under the Act of 1933, and
(II) references in the authorisations (howsoever expressed) to the Minister of the Government who falls within paragraph (c) of section 1B of the Act of 1933 were references to the MARA,
(iii) investigating instances otherwise of suspected non-compliance with the Act of 1933 or with obligations to which holders and former holders of the authorisations are subject,”.
I move amendment No. 129:
In page 46, to delete lines 12 to 15 and substitute the following: “(iv) a representative of the County and City Management Association;
(v) up to six other persons (if any).”.
This amendment rebalances the proposed composition of the MARA board to ensure a broader scope of representation. It demonstrates the Government’s willingness to listen to others and that we heard what was said on the Second Stage debate by various members in respect of this provision. It facilitates the appointment of a range of other persons, including those referenced in the Deputies’ proposals at amendment No. 130, but is not as limiting as that proposal.
Section 43(2) provides for the appointment of persons who have sufficient experience and expertise relating to MARA functions and corporate governance generally. Deputies will appreciate that I cannot give a precise breakdown of the “whos” and “where froms” at this point in time, beyond those already specified. It is intended to create a broad based, balanced and effective board, with the necessary skill set to undertake its functions, taking into account and balancing all necessary considerations. The number of board members remains unchanged at ten.
Amendment No. 132 is a technical change relating to the proposal at amendment No. 129 and is a linked provision to address the changes set out therein.
Amendment No. 137 is related to amendment No. 138 and not amendment No. 139 as set out in the amendments document received. It is a technical change to facilitate the inclusion of amendment No. 138.
Amendment No. 138 amends the text to allow maritime area consent, MAC, licence and foreshore consent holders to serve as members of a board committee. Their experiences as end users of consents should not be excluded from the practical detailed work envisaged by the committees. Holders will not be allowed to serve on the board itself due to potential conflicts of interest-----
MAC holders will not be allowed to serve on the board itself due to potential conflicts of interest, with the exception of a representative of the County and City Management Association, CCMA, who may be from a local authority holding such an approval. As serving on a committee is at one remove from the functions of the board, and the outputs are subject to board approval, such a conflict does not exist in that context.
I will speak to amendments Nos. 129 and 130. It is welcome that a representative of the CCMA will be on the board. That is a good idea.
Amendment No. 130 is very good. We probably all have, at various stages, experiences with boards that sometimes do not have the required expertise. I understand the Minister not wanting to be overly prescriptive but some formula of words should be put into this legislation - it would not have to be the exact wording in this amendment - to ensure we have expertise on the board in marine biodiversity, environmental protection and European environmental law. We can get that expertise on the board without it being set out as per the wording in this amendment, but it gives a certain level of strength to what we are looking for in the people who are appointed to the board. We are making sure that some of those appointments, specifically, cover that. It will only strengthen the board by having that provision. It also means people on the board are not entirely reliant on the briefings and information they are getting. There will be people with sufficient skills and knowledge to be able to interrogate strongly that information. I welcome what the Minister has to say on that point.
I strongly support amendments Nos. 130 and 131. While I understand the Minister of State may not be able to, or believes he cannot, specify all the details about who might be on the board, he will understand that our major concern is that State actors have certain objectives. That is not to in any way impugn the representatives of Departments, but civil society representatives and experts need to be hardwired into this process and the establishment of a potentially powerful body, which will deal with a huge area of our marine territory. We need people who are really expert. Departmental officials may or may not be expert, but we need people we know are expert and we need some representatives of the stakeholders we know will be affected by this. We know the fishing industry is going to be affected. This is critical. I hope the Minister of State will indicate that he accepts our general proposition, or the proposition behind these amendments, and that he will consider wording in the legislation that would, without being absolutely prescriptive, give us assurances that civil society representatives, expert voices and key stakeholders will be included on the board.
I ask the Minister of State to take on board amendments Nos. 130 and 131 specifically. The intention behind them is to be positive and constructive. They propose to bring in people with skills and knowledge who would be independent and add to the board. There should also be a representative from the fishing industry because people in that industry have the most practical and hands-on knowledge. We are looking for people from environmental NGOs and university departments with expertise in marine biodiversity, environmental protection and European environmental law. These are all people who would come to the table with something to bring in a positive and constructive manner. I ask the Minister of State to consider amendments Nos. 130 and 131 because we believe they would make positive and constructive changes to the Bill.
On amendments Nos. 130 and 131, if the person proposed ceases to be a member of an environmental NGO, a university department or a fishing industry representative, will he or she no longer serve on the board? That is just something to consider.
That is very prescriptive. What we want is expertise. The Minister of State outlined that there would be persons with expertise on MARA.
The cathaoirleach has raised an important point. Amendment No. 130 proposes to require that six particular persons representing very specific, but important, interests in the maritime area be appointed to the board of the MARA. On Second Stage, we were accused of creating a board that is not balanced. We are seeking to address this in amendment No. 129. In my view, this proposal would result in a similar imbalance. That is not to say that the particular experts listed will not be important in the proper functioning of MARA; they will, but there are other ways to ensure that the relevant expertise is deployed in the correct manner within the organisation. We must make a distinction between day-to-day operations and board oversight.
First, through my own amendment, such persons can already be appointed to the board. However, we must be mindful of what the board of a State agency needs to do as set out in section 45 and a suitable balance of people needs to be appointed to it.
Second, in section 51, I have made provision for the board to establish specialist committees to provide it with the appropriate advice in areas including, but not limited to, those set out in this amendment. This, I am sure the members will agree, will provide a useful tool in the proper functioning of the organisation as a whole and will allow MARA to engage with the sectoral specialists set out in the amendment.
Third, MARA will, of course, be required to either directly employ the relevant specialist expertise to operate various functions set out in section 41 or engage with other public bodies with the relevant expertise to do so under the provisions set out in section 63.
As always, I fully appreciate the intention behind the amendment but it would be contrary to the spirit of my amendment if I were to create a similar imbalance to the board in the manner set out. I must oppose the amendment, but I will offer the members the opportunity, if they so wish, to withdraw it in favour of my amendment No. 129.
Amendment No. 131 requires there to be a representative of the fishing industry, which makes a valuable contribution, on the board. While I appreciate the sentiment, the wording of this text is imprecise and open to challenge. It does not prescribe what part of the industry should be represented on MARA and could be subject to the accusation of excluding other sectors of the industry or, indeed, other industries operating in the maritime area.
There is sufficient scope in amendment No. 129 to facilitate the wish to have representation from this sector on the board. That said, all members of the board must have sufficient expertise and experience relating to MARA functions and corporate governance generally.
The Minister of State referenced his amendment No. 129. He believes that provides balance. Can the Minister of State explain how it assist in balancing the board? He stated that my party's amendment will create an opposite imbalance. He may call me old-fashioned if he wants, but I would sooner have an imbalance based on expertise, law and knowledge. That is why I believe that amendment No. 130, and, specifically, amendment No. 131, which refers to a representative of the fishing industry, are vital if we are to have a board that will be balanced.
The Minister of State made the point about having special committees set up to feed information, data and suggestions to the committee, but I ask myself then if the experts will be one step away from the decision-making process in that regard when they should be in the room making the decisions.
The Minister of State mentioned the word "spirit". It is an important word. This is important stuff. This board needs to have the right configuration. That is a vital aspect.
Except for the fact that I am radically opposed to the use of clichés, I would say we need to be the best in the class here. In all seriousness, could the Minister of State explain why the term "if any" is used in his amendment and in the Bill in terms of the appointment of other persons for the board? For example, if the membership of the National Public Health Emergency Team, NPHET, did not include doctors and scientists, but was only guaranteed to include departmental officials, we would be a little worried about the protection of public health. This is the protection of marine health, which, by the way, is public health as well. It is the sustainability of human existence, etc. It is fairly important.
On the idea that it would not be absolutely hard-wired into the board membership to have people who are expert in marine biology, I take the Chair's point. We would have to think about how you would do it, but it is a fair point that there would be somebody who has real knowledge of working on the sea, such as a fisher and not merely someone claiming to represent fishers. I refer to the appointment of persons who really have that expert knowledge and that we are certain, not if they might be there if somebody such as the Minister may decide they will be there. It is that they will be there. They are guaranteed to be there and that knowledge and expertise will be brought to bear on the composition of the board.
I do not understand the Minister of State's fear of imbalance. I do not see what the fear is in that regard. I do not get it. Could the Minister of State elaborate on that point? How could it be anything other than a positive contribution to the composition of the board to have the experts from university in those key areas and experts in the EU law? An important component of Deputies Gould and Ó Broin's proposal here is that we have somebody who really knows back-to-front EU law, knows the directives back to front, and is sure that decisions being made by the board are compliant and, indeed, even better, consistent and compatible with the objectives of the directives in a proactive way.
The key issue is independence of the board. In order to operate well, function well, be able to sometimes give a different view and, if necessary, call an issue out, boards need to have a degree of independence as well as expertise. Amendment No. 129 is a marginal improvement on what is contained in the Bill whereby it is stated that several of the members of the board would be officers of Departments, etc. Effectively, this amendment leaves us with a board including the chair, who, of course, could potentially be a Department official, two officers of Departments and one person from the CCMA. I mean no disrespect to the CCMA, which has huge expertise, but it will not rock the boat either. Officers of Departments will not rock the boat. If necessary, they are constrained. Then it is up to six, if any. We do know that there will be six. We do not know, of that six, four or however many are appointed, if there will be independent. If there is to be expertise, they could be officers and officials from Departments as well. The entire board could, with the exception of the CCMA representative, be made up of officials from Departments. That will not provide the balance and independence that is needed.
I accept that those involved will bring with them a level of expertise but there will be expertise and skills missing from the board on that basis. Given that the original composition of the board that was suggested was specifying that several of the members of the board would be coming from Departments and agencies, it is not unreasonable to think that a good many of the additional six will come via that route also.
That is the key here. I agree with the comments of the other Deputies on having experts from fishing communities. You cannot get more expertise than you will get from fishing communities, marine biodiversity experts and environmental experts. This expertise is key. I am not hung up on the wording but it is a question of having the principles included. If setting up bodies in other areas, we would not dream of not having experts and key stakeholders represented. Coastal local authorities are stakeholders, as reflected in the requirement to have a CCMA representative. This is positive but the CCMA is but one of several stakeholders. The CCMA representative is the only member outside the Departments whose expertise will definitely be reflected on the board. My concern is about the independence of the board.
The point made by Deputy Boyd Barrett on NPHET is valuable but he failed to say it is a committee. It has an advisory role, and the Government makes the decisions. It is the same with regard to the board structure. The board is not adjudicating on consents. The board is a corporate governance structure; it is an oversight mechanism. The chief executive and the chief executive's team have the expertise in respect of development consents, and adjudication is their job. It is to misunderstand the corporate structure to suggest the board will be making the decisions. NPHET is a good example in this regard. We will have the expertise, through the chief executive and chief executive's team, to adjudicate on applications. However, the board provides the oversight, holding the chief executive to account in the governance structure. In response to the Second Stage debate, we increased the scope in this regard, which will provide greater independence.
On foot of issues raised in the Second Stage debate, I instructed my officials to review the Part 3 legal text, as initiated. This will help to ensure best practice in corporate governance is reflected in the Bill. I may introduce amendments on Report Stage further to the conclusion of the review. The review is well advanced but specific elements need to be considered in conjunction with the Office of the Attorney General. As such, I am not in a position to detail what the changes are at this stage. I will endeavour to provide further information at the earliest opportunity. On that basis, I will not be moving amendment No. 133 later.
On the point the Minister of State made about the board, I noted his comparison with NPHET and his statement that it is the Government that makes the final decision. This is different. We want the people on the board, who are making the final decision, to have the expertise.
The chief executive and his or her team. We should think of it in terms of a local authority and the development management process. The county manager and planners adjudicate on the applications but the board that holds them to account does not. The board would be the equivalent of the members of a local authority. There has to be expertise in respect of adjudicating on the applications. The board, as a corporate structure, holds the chief executive to account. If the Deputy is referring to the model of An Bord Pleanála, it involves a different mechanism. I am referring to a corporate structure. The board holds the chief executive to account, but the chief executive and his team have the expertise to adjudicate on the applications.
We are saying, through amendments Nos. 130 and 131, that we believe people with the skills and abilities in question should be on the board. It is vital to have representatives from the fishing industry on the board. We are talking about independence, transparency and confidence in the board.
I am aware that the Minister of State has tabled amendment No. 129 but he could have gone further. Is it possible to include our proposals? If not, we will have to call a vote.
If the analogy with NPHET is not perfect, I take the Minister of State's point. However, the broad thrust of what I am saying is that we would not like to think that people whose responsibility is to protect the marine environment do not have, as a matter of course, expertise in the marine environment, marine biology and EU law, including EU directives. We are in uncharted territory. We made many mistakes in respect of planning on land over the years. It has taken a long time to address this and there is still a long way to go to get it right. Let us get on the right foot with this extremely important legislation and this undertaking whose aim is to plan for, develop and protect our marine environment. The thrust of these excellent amendments is to ensure that people who really know their stuff and are to some degree independent of the Department will be included. It is not an unfair comment or a criticism of departmental officials to say they are constrained. They have certain objectives for their Departments and so on. Having people who are independent and who have expertise is critical. I do not understand why the Minister of State would object to this. He has not really commented on the use of the phrase “if any” in his amendment.
In addition to departmental officials and county or city managers, there could potentially be no members with the sort of expertise or knowledge that our amendments are seeking to capture. Our proposal is fair and reasonable and I do not see the argument for imbalance or anything of that kind. This is a positive addition to the composition of the board.
The role of the board in holding the chief executive and chief executive's team to account is important. We are all agreed on that. The independence of the board is important. Is the Minister of State saying he feels the competition allows for an independent board?
How can it be an independent board when it is populated by officials from the Departments? As Deputy Boyd Barrett has said, it is not a criticism of officials from Departments to say they are heavily constrained. They do not have the independence of someone with expertise in the marine environment and biodiversity, or someone with academic expertise in this area. By their nature, departmental officials are constrained and cannot necessarily call it as they see it and as they want to see it. In any event, considering their roles elsewhere, they may be involved in this process if they are bringing their expertise with them. We are not necessarily allowing for sufficient expertise and independence in the legislation. Exactly as Deputy Boyd Barrett said, the legislation allows for a board with two officers from the Departments and one chair. There may be no one else on it at all if the Bill is passed based on the Minister of State's amendment.
It is potentially a board of three, with one chair and two Department officials. Why would we produce legislation that allows for a board with that composition and lack of wider expertise? I do not understand that.
I think our excellent amendment No. 129, to use Deputy Boyd Barrett's terminology, does exactly what the Members want and what we should do to broaden the scope and seek the expertise that is required on the board. Three out of ten are from a Civil Service background. We have taken on board Members' views on that from the Second Stage debate. That is fair and reasonable. The board, as composed, will be best practice. It will, without doubt, have the expertise to deal with the issues of oversight.
Just being a member of a specific organisation does not mean that a person has the right skill set to do the job. We have to be careful here if someone is suggesting that being a member of a certain entity automatically gives that person the skill set to execute the job as the director of the board.
It could be someone from the Marine Institute. The Deputy wants me to guarantee that someone with the best expertise from the Marine Institute would be barred from being a member of the board of MARA.
I genuinely hear the Deputy. I am not arguing. I think that our amendment No. 129 reflects that. There is a misunderstanding that if it is prescribed in legislation that a person must be a member of an organisation or body, that will guarantee the correct expertise and skill set. I do not think that is the case. There could be a valuable contribution from somebody from the Marine Institute or such. We want the best people on this board to execute the job, which is a sea change in oversight and adjudicating-----
I move amendment No. 130:
In page 46, to delete line 15 and substitute the following: “(vii) six other persons from environmental non-governmental organisations and university departments who have an expertise in marine biodiversity, environmental protection and European environmental law.”.
I move amendment No. 132:
In page 46, to delete lines 23 to 37, and in page 47, to delete lines 1 to 8 and substitute the following: “(b) The Minister shall—(i)for the purposes of appointing a member who falls within subsection (1)(b) (i), (ii) or (iii), so appoint a nominee put forward by the Minister of the Government for the Department concerned where the Minister first mentioned in this paragraph is of the opinion referred to in paragraph (a)as regards that nominee, and(c) The Minister shall, for the purposes of appointing members who fall within subsection (1)(b)(v), ensure that any such appointment does not result in there being more than—
(ii) for the purposes of appointing a member who falls within subsection (1)(b)(iv), so appoint a nominee put forward by the County and City Management Association where the Minister first-mentioned in this paragraph is of the opinion referred to in paragraph (a) as regards that nominee.(i)two members who are officers of the same Department referred to in subsection (1)(b)(i), (ii) or (iii), or
(ii) two members who are representatives of the County and City Management Association.”.
I move amendment No. 133:
In page 48, lines 9 and 10, to delete all words from and including “(1) The” in line 9 down to and including line 10.
I am withdrawing this amendment in the context of the corporate governance review that we have undertaken on foot of the contributions of members during the debate on Second Stage.
I move amendment No. 134:
In page 48, lines 25 and 26, to delete “the day-to-day running of the MARA and”.
This amendment more precisely defines the role of the board in respect of governance and oversight and the delegation of its functions. The text as initiated might have been misconstrued so as to mean that the MARA governance board is a case level decision-making structure in the model of An Bord Pleanála. That is not the case, this board is a governance board.
Amendment No. 136 is a technical drafting amendment which broadens the potential scope of the work of the sub-committees to all of MARA's functions, including the engagement of specific sectoral expertise and advice on specific functions. The text as initiated was unintentionally limited to the functions of the board and, as mentioned earlier, our ambitions are far greater.
I would certainly have to absorb fully what is being said regarding the functions of the board and consider that. I hear what the Minister and the officials are saying, but I am not sure what I think of it, to be honest, so I reserve the right to submit amendments on Report Stage on this aspect. I was chatting informally with the officials outside and they were saying that they would dig out some material to give us comparisons regarding how other agencies might work. I would appreciate that.
However, if we were to use an analogy, which I think the Minister of State used a little while ago, of the planning department in a local authority making decisions about planning applications, that is correct and the elected representatives are not involved in the process. The elected representatives, however, have the opportunity - I think monthly - to bring forward observations on any application and through that process to feed the views of the public and stakeholders into deliberations that the planning department might be having regarding granting consent for a particular development proposal.
I am not saying that is a perfect analogy either. I am just pointing out that there is at least in that instance a mechanism in place for some input into and oversight of the deliberations on the granting of consent in particular cases. Perhaps the Minister of State might like to clarify this point, but as the legislation stands, it seems that consent will be granted for applications by the full-time MARA team. I would certainly have to think about that aspect and what is important in this regard when issuing consent for applications, because my gut feeling tells me that we still need to be guaranteed that we will have the sort of expertise and a degree of independence inherent in the making of those types of decisions. The Minister of State is saying that the board does not make decisions, but the team does. The question is how we can ensure that there is that degree of independence and the possibility for people to just be a bit contrarian.
I might accept that the local authority structure is not the best example, but it shows that those with the requisite technical expertise are adjudicating on the development management process. I refer to those who are trained to do so. I am not aware that members of local authorities make observations on routine planning applications that go before the local authorities.
The Minister is statutorily barred from having any say in respect of adjudicating on applications that will be dealt with through this new regime. Taking the board of the EPA as an example, where the CEO and the team grant licences, board oversight is very different in respect of getting to the stage of adjudication where the expertise is required to make determinations and to make those decisions. There must, however, be a clear line of sight between those people and the board which sits on top as part of the governance structure, looks down and ensures that the body is meeting its objectives and ambitions and that there is proper oversight. As I said in respect of the corporate governance structure, we are working to reflect in that context many of the issues that were raised during the debate on Second Stage.
In one sense, using the local authority analogy in this context is probably not a good example because of the history of why local authority members, as effectively being the board, were taken out of the planning process. I will not go through all that-----
What I am hearing from members is a suggestion that the board of MARA will have some role in adjudicating on applications. It will not. This is the key point. The board is a structure to hold the entity to account and to ensure that the CEO is undertaking his duties properly, etc. Regarding consent for individual applications, however, the board has no role in that context. That is the clear point that we need to make.
I hear what the Minister of State is saying on that point. I am saying, though, that the local authority example is not a good one to use because of why the local authority members were taken out of that process. It was for a whole set of reasons.
It was reactive, and it was not necessarily done as best practice or as the best model. It was undertaken as a reaction to a set of circumstances which meant that change had to happen. In and of itself, that example does not necessarily justify replication in this regard.
Yes. If the board does not have that role then what is the oversight mechanism? If there are problems with the process and decisions are being made then who has oversight? If the board feels that there are problems is it constrained and can it not do anything about them? Where does the role of the board start and stop?
The functions and oversight of the board are clearly set out in section 45. The board has no role in cases or making a determination on specific licence applications. The board cannot because it would defeat the purpose of having a clear corporate governance structure to hold an entity to account.
I move amendment No. 135:
In page 49, between lines 25 and 26, to insert the following: “(3) The Minister shall remove from office a member of the Board (M) if such removal is necessary in order to ensure that section 43(2)(c)* continues to be complied with.”.