Seán Fleming (Laois, Fianna Fail)
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No apologies have been received. I remind members to turn off their mobile phones or switch them to silent mode.

The meeting has been convened to commence Committee Stage of the Critical Infrastructure Bill 2026. I welcome the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, Deputy Chambers, and the officials from his Department. It is important to note that, in order to participate in a division in committee, members must be physically present in the room. They cannot vote from a remote location.

Louis O'Hara (Galway East, Sinn Fein)
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I move amendment No. 1:

In page 3, to delete lines 26 to 31 and substitute the following: “ “infrastructure” means any infrastructure that enables essential facilities and systems of the State to function effectively and includes, but is not limited to—

(a) housing,

(b) health facilities,

(c) transport facilities, including ports and airports, and transport systems, including roads and railways,

(d) energy generation, transmission and distribution systems, and

(e) water supply, wastewater and waste management systems;”.

We are seeking to add housing and health facilities to the definition of "infrastructure". I think we all agree that housing infrastructure is critical to our economy and our communities, as are health facilities, and they should be included in the designation so that future healthcare projects can be designated as critical infrastructure projects. There is a need across the State to get these types of project delivered and delivered very quickly. They should be given the same prominence as other areas within the Bill.

Réada Cronin (Kildare North, Sinn Fein)
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I agree. I was surprised that housing was not top of the list of infrastructure. Will the Minister comment?

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Deputies for the amendment. The purpose in principle was to reference three specific areas and I do not think there is a dispute on transport, energy and water being the foundational basis of core infrastructure. That is reflected in the current section 1. We have also said that there is provision around a programme, such as if there are two or more projects that achieve an intended purpose. There is significant flexibility within the definitions set out in the Bill and it is not limited to the three areas mentioned in section 1. We have been clear that, while we have set out the broad definition across three specific areas, it is not limited to that and we have the ability to broaden it in the context of the different areas Deputy O'Hara has mentioned. However, it is important to keep discipline in referencing what we believe the intended purpose of the Bill will be in the main, which is water, energy and transport infrastructure. I have said publicly that if there is a hospital or particular piece of critical infrastructure that aligns with our wider consensus within the political system, we have given ourselves the flexibility in the existing section to allow for that. That is why we do not believe this amendment is necessary.

Réada Cronin (Kildare North, Sinn Fein)
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I really think housing has to be in. It is the first thing the Government said was its priority in the programme for Government. It should be included, along with health facilities. I recently had experience of our health system and where it works it is fantastic and brilliant, but for the Government to be taken seriously on housing, that has to be mentioned as a priority in this Critical Infrastructure Bill. We will be pushing for it.

Jack Chambers (Dublin West, Fianna Fail)
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Just to be clear, what the Deputies have referenced would not be precluded from being designated if necessary. However, it is important to keep to what we have been trying to reflect in the broader infrastructure reform: transport or, in the broad definition, transport systems; energy generation transmission and distribution systems, which essentially means our grid and our public generation; and water supply and wastewater. All of these will help supply more homes. We have been clear in the context of the definition and what is set out in the Bill that we are not limiting it to those particular areas.

That is what will give us the ability to do more, if required, and it is not limited to those areas. That is why we do not believe the suggested amendment is required in the context of the legislation that is proposed.

Louis O'Hara (Galway East, Sinn Fein)
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If it is not limited to those areas, I do not see the difficulty in accepting this amendment. As Deputy Cronin pointed out, we always hear from the Government that housing is its number one priority. If it is, it should be set out in this legislation as one of the priority areas in terms of infrastructure. There needs to be a clear statement of intent in that regard, and there is no reason why it could not be included within this section.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Tacaím le cuspóir an Bhille seo chun bonneagar ríthábhachtach a sholáthar. I welcome the overall intention of the Bill. Will the Minister clarify section 1 of the Bill, specifically what is meant by, "(b) energy generation, transmission and distribution systems". Would that include LNG?

Jack Chambers (Dublin West, Fianna Fail)
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The core definition of infrastructure systems is in the context of projects or programmes by the State . Separate legislation relating to LNG is being progressed by the Minister, Deputy O'Brien.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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If there were a State-led LNG project, would it be included in that definition?

Jack Chambers (Dublin West, Fianna Fail)
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The definition of "project" states, "that is funded by capital investment, by or on behalf of the State or by or on behalf of a public body", so, theoretically, it could be, but it would have to be by or on behalf of the State.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Yes, but is the Government not planning to do State-led LNG?

Jack Chambers (Dublin West, Fianna Fail)
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The Minister, Deputy O'Brien, is.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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But there has not been a Government decision as yet. That is why it is theoretical, is it? I am just curious as to why the Minister used the word "theoretically".

Jack Chambers (Dublin West, Fianna Fail)
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There is a separate piece of work. To be clear, as regards the direction as to what we designate as critical infrastructure right now, LNG is not the sphere on which we are really focusing our attention in terms of energy generation, transmission and distribution systems. It is predominantly the work of EirGrid and the ESB and their programme and projects, which are well documented, that is reflected there. That is the context in which it is set out. As stated on Second Stage, we have not specified any project.

Conor Sheehan (Limerick City, Labour)
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Gabhaim buíochas leis an Aire as ucht a bheith anseo inniu. Similar to Deputy O'Callaghan, I welcome the general thrust of this Bill. I just want to go back on something the Deputy said. Basically, the Minister is now disapplying section 15 of the climate Act in terms of the Department's consideration of this. Therefore, the Department would not have to assess the impact of something it deemed as critical infrastructure against the climate targets, using that section of the Act. Does that mean that the Critical Infrastructure Bill would theoretically allow the Minister, by the disapplication of that aspect of the climate Act, to deem new fossil fuel infrastructure, such as LNG, as critical infrastructure, using this Bill?

Jack Chambers (Dublin West, Fianna Fail)
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I believe we will deal with section 7-----

Seán Fleming (Laois, Fianna Fail)
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Yes, we will come to that.

Jack Chambers (Dublin West, Fianna Fail)
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We will come to it, and I am happy to discuss it at that point. There is a piece of work ongoing with the Minister, Deputy O'Brien, regarding, essentially, an emergency gas supply, namely the LNG project, which he has referred to, and that is progressing. This is obviously distinct legislation relating predominantly to a lot of the work of the ESB and EirGrid. That is the thrust behind energy generation, transmission and distribution systems. I am happy to address Deputy Sheehan's questions at section 7.

Jack Chambers (Dublin West, Fianna Fail)
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In the context of this section, I am considering something in light of the current energy crisis. What has been flagged to me by other members of Government is whether offshore renewable electricity projects should also be eligible for designation. As the committee is aware, such projects are developed and led by the private sector, with State support offered through support schemes for renewable electricity. Ireland's development of offshore wind has been at a significantly slow pace. Allowing offshore wind projects to proceed is being examined. However, any amendments that expand the scope for designation of projects in the private sector would only apply to offshore wind. No other private sector infrastructure could apply for inclusion. I am not committing to this inclusion, but there is ongoing engagement on it. I am happy to brief colleagues in the interim if that advances or not. It is just to flag it at this point. It is important that we mention it from a procedural perspective on Committee Stage.

Réada Cronin (Kildare North, Sinn Fein)
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I have never seen the Minister have a vote before. Why does he have a vote?

Seán Fleming (Laois, Fianna Fail)
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He is an ex officio member of the committee. Beyond that, I cannot say.

Réada Cronin (Kildare North, Sinn Fein)
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You learn something new every day.

Seán Fleming (Laois, Fianna Fail)
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Every day is a learning day.

Réada Cronin (Kildare North, Sinn Fein)
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It is the first time it has happened.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It is normal procedure, from my experience. The Minister said the matter is under consideration.

Jack Chambers (Dublin West, Fianna Fail)
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I have been asked by colleagues to examine it. I am not saying it is going to progress, but it is important, from a procedural perspective, to flag it now. It was only flagged in recent days.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I understand that. If Committee Stage finishes up quickly, we could move to Report Stage very shortly - potentially next week - in the Dáil.

Jack Chambers (Dublin West, Fianna Fail)
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We will not be taking Report Stage next week. It will be at least a couple of weeks before that happens. It is very much a hypothetical. We will give people a full briefing on why we would progress it, but there is still engagement happening with the Department of Climate, Energy and the Environment. I am just flagging it because it has been raised with me in the context of this legislation.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It is potentially quite a significant departure-----

Jack Chambers (Dublin West, Fianna Fail)
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It would be. That would be the only one, but, again, it is a hypothetical possibility because it has not been definitively worked through at this point. It will be considered. If it is progressed, we will brief people in advance on why we should proceed with such an amendment. I am just flagging it now for procedural correctness and to say that there is no definitive position on progressing it. That is the context. I will be happy to brief people if such an amendment arises. It is in the interests of the wider ambition we have on renewables and energy security, ensuring the offshore renewable piece, which is the slowest in Europe, could advance, but it still requires policy examination as to whether such an amendment would actually make an impact in that sector. I am just raising it as a procedural matter. I will brief and engage with colleagues if we decide to bring forward an amendment.

Seán Fleming (Laois, Fianna Fail)
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Amendments Nos. 2 to 4, inclusive, are related and may be discussed together.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 2:

In page 5, to delete lines 22 to 26 and substitute the following: “(4) A draft of the designation order shall be laid before both Houses of the Oireachtas, and the order shall not be made unless a resolution approving the draft has been passed by each House.”.

Conor Sheehan (Limerick City, Labour)
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Amendments No. 2 and 3 are virtually identical. These amendments would require that a Government order designating a project as critical infrastructure be approved in advance by a resolution of both Houses.

The Bill opts for the negative resolution rather than the positive resolution procedure, such that an order has effect unless it is annulled by the Dáil within 21 sitting days. The reason the Labour Party is bringing forward this amendment is to make sure that there is legislative oversight of this Bill. In many ways, this Bill is quite similar to the legislation that the Minister, Deputy O'Brien, is passing in relation to the liquefied natural gas, LNG, reserve in Ballylongford. It is also quite similar in many ways to the Dublin Airport passenger cap legislation in the sense that it grants an awful lot of power to the Minister. We are proposing this amendment to make sure that there is adequate legislative oversight of the designation of projects as critical infrastructure.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Amendment No. 2 is almost identical to amendment No. 3, and it relates to the same point. It concerns the concentration of power in the hands of the Minister and the lack of oversight of that. These are significant decisions around critical infrastructure, and they should require approval by the Oireachtas. Amendment No. 4 is really a fall-back position so that if the Minister, Deputy Chambers, does not agree with us on amendments Nos. 2 and 3, he will maybe at least agree to amendment No. 4 as it is a much more modest proposal. It simply requests that while making a designation order, the Minister would provide a report to the Dáil about the rationale behind that decision-making process so that it can be seen by Members of Dáil Éireann and the public and that would give a level of transparency and oversight. The two measures combined would work well also.

I said on Second Stage that I could not envisage a situation where Members of the Dáil would look to put an amendment to annul a critical infrastructure designation. I think that is true. In most cases, TDs are not going to bring forward a motion to annual a critical infrastructure designation but there should be an opportunity to probe it. The onus should not be on a motion to annul it. In the case of LNG, people would potentially bring forward an amendment on that but, except for situations like that, people would not bring forward motions to annul designations. There should be Oireachtas oversight on it.

To understand these amendments and this section of the Bill, it would be helpful if the Minister could give us more information about how it is envisaged that the decision-making around designations is going to be done. What is the process? How does it land on the Minister's desk? The Minister made a very apt comment on Second Stage when he said if everything is a priority, nothing is a priority. I agree with him. We cannot prioritise everything as critical infrastructure even though all infrastructure that the State may be providing is important. If a project is designated as critical, what makes it into that designation and what does not? Presumably, MetroLink is going to be designated as critical infrastructure, along with all major transport projects such as DART+, the Luas in Galway, if it receives funding, and the Luas in Cork. What sort of things do not make it onto the list? What is the rationale for that? How is that decided? What is the interaction between the Minister making these decisions and the proposals coming forward from Departments and line Ministers? How does that work? What is the transparency around it? Will the Minister give us some insight into how this legislation is intended to operate? It would be very useful in terms of these amendments.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Deputies for their respective three amendments. I am not going to accept them, and I will set out why. There is a clear process, which I will speak to, for the designation of individual projects or programmes as set out within the draft legislation. The Deputies have placed an emphasis on the positive resolution process, and I have set up a bigger provision that allows Dáil Éireann to reverse a particular decision of a designated project or programme. As I said, an order may be annulled if a resolution annulling the order is passed within the next 21 days that Dáil Éireann has sat after an order is laid before it. That gives sufficient time to consider any order that the Government makes.

As I said on Second Stage and will say again here, I expect that there is going to be a very small number of projects and programmes. It would be disproportionate to require each designation order to receive an individual assent from both Houses of the Oireachtas. This is simply to accelerate the pace of critical infrastructure delivery for projects and programmes that I expect will be very familiar to everybody in this room, many of which have not advanced at a pace that we expected and want. That is the context in which the Bill has been drafted.

It would also potentially add an unnecessary layer over a period of weeks or however long it takes. We have provided a proportionate response in that context. We have set out the criteria under which the Minister may make a recommendation. It will include the need to ensure the effective and efficient delivery of a project or programme; whether a delay to or disruption to the delivery of a project or a programme, or a failure to deliver a project or programme may have adverse economic or social consequences for the State; and whether a project or programme may impact in a positive or negative manner on the delivery of any other project or programme. The National Development Plan 2021-2030 is specifically referenced and what we intend to do is have an administrative process in place to facilitate recommendations which will emerge.

In fact, what I expect will happen, as I said at the conclusion of my speech on Second Stage, is that there will probably be requests from everybody in the House to add an awful lot more. We are going to have programmes on our energy system that are well documented in price review 6 in terms of the grid and what the ESB is seeking to do around building our energy system for the future. We have well documented transport and water infrastructure projects. I will obviously be accountable around that in the context of the criteria which are set out in the legislation. We have struck an appropriate balance in how we have drafted the particular legislation. The Deputies have looked to emphasise it on the other side, but I think we have drafted it appropriately.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank the Minister for his answer, but I am just not clear on this. He says that it will be a very small number of projects, and I hear what he is saying. He also rightly pointed out that there is a long list of potential projects that different Ministers and TDs from different constituencies will want listed as critical infrastructure, so there is a tension between those two things. There are hundreds of very worthwhile and important projects in the national development plan, so I am just not clear in terms of the legislation and how a small number of projects are going to be isolated.

I know the Minister cannot put a number on it, but at any one time are we talking in the region of something like five, ten, 20, 50 or 100 projects in the country? His idea of very small and my idea of very small could be totally different. I do not expect an exact number but, ballpark, what are we talking about when he says a very small number of projects? For example, why would it not be all of the upgrades to our electricity network infrastructure? Why would all of those not be deemed critical infrastructure? How is the Minister going to isolate which projects are more important than others? That is what I am trying to probe here.

Jack Chambers (Dublin West, Fianna Fail)
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That is why we have referenced projects or programmes. In the context of our energy system, it is probably a programmatic capturing of the ESB's investment pipeline which will actually capture quite a significant number, for example. It is important that they are deemed critical infrastructure and prioritised, I suspect, whenever we conclude the legislation and, it is hoped, enact it.

My role will be to apply a constraint, a discipline and a filter of the number of projects in order that prioritisation and speed actually happen. That is the construct in which we have set out the respective criteria. I will be accountable to the Oireachtas about how we brought conclusion to a particular project. Government will then have to make the decision about what is deemed a priority.

Conor Sheehan (Limerick City, Labour)
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I will elaborate on some of the points made by the Minister. A small number of projects are envisioned. I wonder if he sees the Shannon pipeline being one of these projects, and whether that might come under this. That is obviously something quite contentious at the moment. There are clear reasons and rationales for its construction. Will he talk us through what he sees as the statutory threshold for something being designated as critical infrastructure? There are examples of jurisdictions where they have defined this. To make it clearer for us, exactly what types of projects are we talking about?

Jack Chambers (Dublin West, Fianna Fail)
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We have set out the definition of what infrastructure means in section 1 and that is the basis on which we are assessing particular projects. The Deputy asked about one project versus another project. I am not getting into what projects we are deeming critical infrastructure and which not because I am respecting the legislative process and standing up an administrative process to do this properly. My intention will be to approve each project or programme one by one. We are not taking parts of lists, putting them all together and deeming them critical infrastructure. There needs to be a discipline and filter around what we prioritise.

Conor Sheehan (Limerick City, Labour)
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I assume the legislation is being drafted with a particular process in mind.

Jack Chambers (Dublin West, Fianna Fail)
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Yes, the administrative process is being worked up. We will obviously engage. Part of this is with utilities, which are at the coalface of the delivery system of what needs acceleration and prioritisation to deliver across their investment plans and it is about how we can speed delivery. That will take place in the period ahead. When the Bill is enacted, we will respect the criteria in the legislation and underpin that with an administrative process, under which Government will make a decision and be accountable to the Oireachtas.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I am trying to understand. Following on from Deputy Sheehan's question about the statutory threshold, we are none the wiser. There is no statutory threshold. It is at the full discretion of the Minister. He has outlined the approach he will take and a Minister in ten years' time could designate everything under the sun as critical infrastructure.

Jack Chambers (Dublin West, Fianna Fail)
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It is going back to the point raised earlier by Deputies O'Hara and Cronin about a hospital in a particular region. If we set rigid and regimented statutory thresholds, we potentially exclude or displace projects that have national importance. That is the thrust of how we are trying to approach the Bill, and we will obviously be accountable on that.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I understand the need for flexibility, but I think there is a danger in this legislation. It may start off being used in a disciplined way, but a lot of designations sometimes get widened to the point where they lack the effect or emphasis that was originally intended. There is nothing in the legislation to control that or to try to set a balance on that. That is a weakness. I am trying to understand what difference a designation will actually make in practical terms. An Coimisiún Pleanála has an infrastructural section, so the infrastructure applications or appeals do not get mixed up and put in the queue with the housing ones or whatever. They go straight into the infrastructure section. They already have dedicated people looking at these appeals or planning applications. What difference does it make? Is it that so few things will be deemed critical infrastructure that that project will go to the top of the queue and be dealt with quicker? Is that effectively it? Will the Minister talk us through, in practical terms, what differences designation will make? How will that differ from a memo from the Minister, or from Cabinet, saying this critical infrastructure should be prioritised? How does putting it on a statutory footing change that?

Jack Chambers (Dublin West, Fianna Fail)
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If you take the report we published last year, it documented a project as it meanders its way through. There is licensing, permitting and planning permissions, all of which are dealt with sequentially. This essentially puts whatever is designated to the top of every queue, which will cut time significantly. That is one piece. Section 5 looks at the duties of public bodies in the context of what is designated with regard to the performance of their functions. It places quite a positive obligation on the performance of their functions and avoiding any unnecessary delays. There might be an infrastructural function in An Coimisiún Pleanála, but there are still time lags with some of that. It has improved significantly, but there are still some time lags. There is a whole breadth of bodies and structures in which there are requirements for approval, which Uisce Éireann and others have to advance through. It respects their statutory functions but puts it to the top of the queue and places a positive performance obligation on them legally with regard to how they advance that in the context of their roles. We have set that out in section 5 across the respective bodies that will be involved.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Is it the difference between this and a ministerial decision or memo from the Minister, Cabinet or whatever saying what their priorities are that those would not necessarily override existing statutory provisions whereas this will?

Jack Chambers (Dublin West, Fianna Fail)
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Exactly.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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On a statutory basis, this will put these at the top of the queue and that is where the Minister hopes to make time savings.

Jack Chambers (Dublin West, Fianna Fail)
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We know there will be significant savings across multiple bodies and agencies.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The cost from this is that other important projects that are not deemed to be critical infrastructure will take longer to go through those processes.

Jack Chambers (Dublin West, Fianna Fail)
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There is a separate piece of work on performance management and reform of some of these bodies and structures that need to change anyway. That is why the regulatory simplification unit is working on wider reforms such as improving the respective performance of these bodies and agencies. This is to place a positive obligation by moving everything to the top of the queue.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I am making the observation that if something is pushed to the top of the queue, it obviously pushes other things down the queue. I think that makes the point of our amendments all the more important. There are all sorts of implications as to what is and is not designated critical infrastructure. Some people's lives will be improved faster than others if it is health infrastructure in a particular region, as the Minister suggested. If something else is not, there could be lives saved as a result of that and there could be lives impacted in a negative way when something does not get the designation of critical infrastructure. These are really-----

Jack Chambers (Dublin West, Fianna Fail)
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This has to be seen in the context of wider reforms. The change to the infrastructure guidelines has cut 20 weeks from the external assurance process because we have removed the external assurance process, which has benefited every project. That is just an example. It is the cumulative impact of the work of the regulatory simplification unit and reforms to bodies and regulators in and of themselves.

This complements the wider work and reform that we are undertaking. The 30 actions we are undertaking across the action plan will make a cumulative difference in the context of what is set out in section 5 in particular.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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These decisions on what is and is not designated critical infrastructure are going to impact on people's lives and livelihoods. It is going to have economic impacts. It will have impacts in terms of businesses and different sections of the economy. Given the significance of it, does the Minister not think it would be better to have some level of democratic oversight and transparency around it, rather than having this situation? There is not, for the reasons he has outlined, a statutory threshold around this. There is huge discretion for the Cabinet on this. Would some democratic oversight, transparency and accountability not be good? Would that not protect Cabinets from any suggestions around their decisions not always being in the best interests or questions as to how they are done and so forth?

Jack Chambers (Dublin West, Fianna Fail)
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I have set out the rationale around that already.

Roderic O'Gorman (Dublin West, Green Party)
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I speak in favour of Deputy O'Callaghan's amendment, which has real merit to it. The question of the definition of critical infrastructure is one that quite a few Deputies have brought up. The definition as it is currently stated is wide and the power that is being given under section 3 to designate as critical infrastructure is significant. The analogy of these projects jumping to the top of the queue in any regulatory or licensing process gives us an indication of its significance. I have a practical concern and a legal concern about the lack of criteria for how the Minister and his successors come to a view about what is critical infrastructure. The practical concern is that everyone is going to want their project on the critical infrastructure list. It will be seen as a way of moving things through. When there is no clear criteria there for the Minister and his successors to make the case that a particular one gets designation while another does not, he and his successors are going to come under a lot of political pressure to start using it more than a couple of times a year and to use it every time. He may well be able to resist that pressure but we can see a situation very soon where a process, and this part of the process, which may have some merit to it, becomes eroded away because the lack of clarity means that a Government or a Minister cannot say that what someone is talking about is not near the scale, importance or value of what they are trying to deal with. That is my practical concern.

As to a legal question, usually when power is delegated to a Minister, there is a set of policies and principles that explain how the Minister will undertake that particular power. That is a legal requirement. I think they are absent here. The amendment from Deputy O'Callaghan makes some effort to try to fill in some of the details and guidance around the circumstances when a Minister will exercise a power to designate under section 3.

Throughout all of this, fear of judicial review is something that is motivating the Minister in a lot of his work under this legislation, and I can very easily see a situation where a decision of a Government to designate something becomes subject to judicial review. I can probably see a situation where a decision not to designate something may also become subject to judicial review. That question of whether there is enough legal detail in the primary legislation about the policies and principles guiding a Minister when deciding to make a designation or not could well come up soon. Therefore, I suggest a bit more openness to putting some sort of scaffolding around the decision to designate. It may actually be beneficial in terms of defending judicial reviews around this point in the longer term.

Peadar Tóibín (Meath West, Aontú)
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There seems to be no statutory criteria in terms of the selection of a priority project. It is a zero-sum game because if the capacity within the system is set and one project moves up, then another project falls down the list. If there is no statutory criteria, then it is a political decision. For example, if I was Minister, the Navan to Dublin rail line could become a priority project over an Uisce Éireann project in Castleknock, and it would be the Minister who would make that decision. There would not be a separate judgment panel that would make that decision. There would not necessarily be a matrix of different boxes to tick in making sure the particular project fit within the legislation as such. If we are honest, there is a big element of parish pump politics in the system. It is, unfortunately, part of the system we live in.

I would appreciate if the Minister would address those questions.

Jack Chambers (Dublin West, Fianna Fail)
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I thank both Deputies for their questions. On Deputy O'Gorman's question relating to policies and principles, the legislation has obviously been drafted with the Office of the Attorney General and is legally robust. We have set out a direction for how a decision would be made in the context of matters that are quite clear relating to the national development plan and the social and economic consequences for the State. We have set out the basis while at the same acknowledging that specific critical projects could emerge. It is about balancing specific criteria against having a degree of flexibility, and that is how we have tried to craft the legislation. If this becomes an impossible system in which to progress and prioritise a particular project, then that undermines the broader intent of the Bill. It is a matter for the Government to then decide. There is a collective responsibility on the Government to designate and decide on a particular project and it will have to be accountable for that.

As I have said before, though, I expect it to be a small number of projects and programmes. My role will be to apply a degree of restraint in order that projects that are of broader national significance are prioritised. In many instances, the projects we are speaking about relate to the grid, which is national anyway, the overall energy system or the work that ESB is doing around PR6. It is not really localised. That is why we referenced projects or programmes. Similarly, with water or wastewater infrastructure, we will obviously be informed by the inputs from the utilities in that sense. The same for transport projects.

I am sure that, if this legislation is enacted, the assertion in the Deputy's question will over many years be made regardless, but my role will be to apply it and I will be transparent in how a project is designated. I know that there will be a rationale to anything that is designated in the context of broader critical infrastructure, which is referenced here.

Conor Sheehan (Limerick City, Labour)
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I just want to go back to what I was saying in terms of the threshold. The Minister mentioned the rationale. For something to be considered critical infrastructure, does he envisage that it would have to be considered a major project under, say, the infrastructure guidelines? Is there going to be a public spending threshold? The reason I was talking about a statutory threshold was because I was trying to work out whether the Minister would say there would be a detrimental impact on our economy or our essential services if a project he designated as critical infrastructure was delayed or did not go ahead. That is what I was talking about in terms of a statutory threshold.

Jack Chambers (Dublin West, Fianna Fail)
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That is one element under the criteria that are referenced in section 3(3)(b).

To give an example, if we were to set a statutory threshold, ESB or EirGrid may do something in the context of the grid that falls below that statutory threshold but is part of a particular programmatic approach it is taking to the infrastructure projects it is delivering. An example might be substations, which are critical to social housing developments. Such works might fall beneath an investment threshold set out in statute but would be important for social housing in, for example, Limerick city. It is hard to create a specific statutory framework around that in the context of this legislation. We are allowing flexibility in such contexts.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The Minister has said he will be transparent in the decision-making process on this. That is a welcome commitment but we are discussing the legislation. We are asking for the legislation to ensure not only that the Minister will be transparent, but that his successors will be transparent as well. My amendment, No. 4, would require the Minister to "lay a report before Dáil Éireann on the rationale, criteria, decision making process used to draft the designation order as soon as may be after it is made." It is not a very onerous requirement but it would ensure that the Minister's successors are also transparent. The Minister has given a commitment that he will be transparent. Why not give a commitment in the legislation that his successors will also be transparent? The Minister has given us a commitment but somebody else could be appointed after him who would not be transparent and there is nothing in the legislation to guarantee he or she would be. The Minister obviously sees the merit in transparency as he has given us that commitment so why not ensure the legislation requires transparency of his successors as well?

Jack Chambers (Dublin West, Fianna Fail)
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There is an obligation-----

Seán Fleming (Laois, Fianna Fail)
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Deputy O'Hara has also indicated.

Louis O'Hara (Galway East, Sinn Fein)
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Is there any project the Minister sees as being critical infrastructure? Will he give some examples, whether current, past or future? It might be something that is in the national development plan, for example.

Jack Chambers (Dublin West, Fianna Fail)
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I will come back to Deputy O'Callaghan's question but, on Deputy O'Hara's, we respect the legislation and the process that is to be stood up. Government will have to make decisions on that. I typically pivot to the energy side, our grid and the ESB because all of that involves a programmatic approach. The reason we have captured programmes and projects is to deal with the State's investment programmes through our semi-State bodies. We all know these programmes are needed if we are going to build out the renewables we require. That is one example I can foresee but I am trying to respect the process we are to stand up.

To Deputy O'Callaghan's point, you could make the argument he is making in respect of literally everything Government decides about everything. Of course, we are transparent with the Oireachtas about what we do, whether on this legislation or on any other matter. If the Deputy asks me why we made the decision to allocate a certain amount to a particular Department or an area I am responsible for, I am accountable and will answer him. That also applies here in the context of the decisions we will come to. Government is accountable for the decisions we make and has to set out the rationale for them. That is a natural outworking of what is in the legislation and of the basic functioning of the Government and its accountability to the Oireachtas. That will continue and is present anyway in the context of parliamentary oversight. I will just make that point. We will have to set out the rationale as we do with other issues the Deputy might ask me about. The same applies here.

Conor Sheehan (Limerick City, Labour)
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I move amendment No. 3:

In page 5, to delete lines 22 to 26 and substitute the following: “(4) A designation order shall be laid before each House of the Oireachtas as soon as may be after it is made, and the order shall not have effect until a resolution approving it has been passed by each such House.”.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 4:

In page 5, between lines 26 and 27, to insert the following: “(5) The Minister shall, lay a report before Dáil Éireann on the rationale, criteria, decision making process used to draft the designation order as soon as may be after it is made.”.

Réada Cronin (Kildare North, Sinn Fein)
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I move amendment No. 5:

In page 5, line 40, after “completed” to insert the following: “and to comply with relevant binding time-limits that will be issued by the Minister within four weeks of the passage of this Act”.

This amendment proposes to insert a provision on relevant binding time limits in line 40. The rest of the section mentions prioritisation, expeditiousness and undue delays. That is all fine but we have to make public bodies, and subsequently the Government, more accountable and have transparency there. It is important that we have binding time limits. Does the Minister agree with inserting such a provision?

Jack Chambers (Dublin West, Fianna Fail)
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I thank Deputy Cronin. I will speak to the wider reforms we are undertaking, which will help to achieve what the Deputy is seeking through this amendment. I will not be accepting the amendment, however. While I agree with the principle that every authorisation process should have a time limit associated with it-----

Réada Cronin (Kildare North, Sinn Fein)
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That is particularly true when something is deemed to be critical infrastructure.

Jack Chambers (Dublin West, Fianna Fail)
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There is a challenge in certain instances. For example, if there is a particular statutory function connected to the Environmental Protection Agency or another regulatory body that has independent statutory functions separate from this legislation, which may be connected to certain EU legislation, and we legislatively impose a specific timeline on that particular body that undermines that body's statutory remit, it could potentially undermine the decision the body then makes, which could create legal uncertainty as to the integrity of that decision. There is also different sectoral legislation, some of which already contains statutory time limits for specific processes. There is therefore a risk of conflicting with EU legislation and compromising the independence of some public bodies. That is important in the context of approvals. We need to make sure they are more efficient and that there is better performance, but that is one risk.

To speak to what the Deputy is trying to do, we have a new circular on principles for better regulation. That was issued to all public bodies and Departments. It sets out eight principles for better regulation that they must implement in their own regulatory processes. One of these requires public sector bodies to provide fixed timelines for all licensing, permitting and consenting processes. It also requires that they track and measure these timelines, supported by key performance indicators. We are actually seeking to achieve the objective of the Deputy's amendment, but within the legal framework we have and reflecting the EU context, which I have to respect as I draft legislation. While I agree with the intention of the Deputy's amendment, I believe it is not necessary and may present a risk with regard to the regulatory functions of certain bodies and agencies. That is the context in which I cannot accept the amendment.

Conor Sheehan (Limerick City, Labour)
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I move amendment No. 6:

In page 6, between lines 16 and 17, to insert the following: “(2) The duty imposed by subsection (1) includes, in relation to a relevant public body who is a Minister of the Government and who performs functions in respect of another relevant public body, including functions relating to the determination or allocation of funds to that body, a duty to ensure, insofar as practicable, that the other relevant public body has sufficient resources to enable it to carry out the duties imposed on it by that subsection.”.

Amendment No. 6 relates to the duty imposed by the Bill on public bodies. When dealing with a designated project, the body must not only prioritise its consideration of the project but must also allocate adequate resources to facilitate its consideration. The amendment proposes that where one body is responsible for funding another, such as the Minister for local government and a local authority, then the Minister's duty extends to ensuring that the local authority is sufficiently resourced by central government to enable it to perform its statutory duty. The reason we are tabling this amendment is we have had many instances in recent years whereby critical projects have been delayed because a statutory body was tasked with carrying out a function and the body - in many cases, a local authority - was adamant that it did not have the funding in order to carry that out. We are bringing forward this amendment in relation to the relationship between the Department of housing and local authorities, particularly regarding issues such as, for example, the housing infrastructure fund that was set up recently by the Minister for housing. We have seen a number of instances in recent months where critical housing projects have been delayed because the funding was not made available to carry out the necessary infrastructure or enabling works on those projects.

Jack Chambers (Dublin West, Fianna Fail)
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I am not accepting this amendment. Appropriate resourcing is, of course, critical to making well-informed regulatory decisions. I appreciate that the complexity of the required regulatory decisions has increased over time. This exorbitantly growing regulatory complexity was one of the core findings of my Department's assessment of the most pressing barriers to infrastructure development, published last July. The resourcing decisions made by the Government in relation to key regulatory bodies reflects this. For example, in the past ten years, the number of staff in the Environmental Protection Agency, EPA, has increased by 50%. Over the same period, staffing levels in An Coimisiún Pleanála have doubled. Its maritime functions have moved to the Maritime Area Regulatory Authority which has an authorised head count of 73. Today, the Commission for Regulation of Utilities has a staffing allocation of more than 300% above its 2016 level. The solution cannot be to solely increase resources allocated to various public bodies involved in the authorisation process. Instead, increased resource allocation must be complemented by measures to improve the efficiency of our processes.

The regulatory systems that have been built over time to underpin infrastructure development in Ireland have been built with the best intentions in mind but there needs to be consideration of the cumulative impacts that each of these additional requirements imposes on the development of infrastructure, the risk of delays and the resulting costs that delays impose in society. There needs to be a reappraisal of the balance between the competing pillars of the protection that regulation affords and the timely provision of infrastructure in society. That work is being led by the regulatory simplification unit around the broader principles of better regulation. That means reforming some of the processes sitting behind many of these bodies or agencies to ensure that, with increased staffing in recent years, they change how they conduct themselves to make quicker decisions. It cannot always be a binary conversation of more staff or resources. Of course, we work in the context of the annual budgetary process with colleagues on staffing decisions and how we prioritise that, but there cannot be an endless or open resource calling of different bodies or regulators. There is a need to reform. We are seeking to balance that. Putting a positive obligation in the legislation is not necessary.

Seán Fleming (Laois, Fianna Fail)
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Is the amendment being pressed?

Conor Sheehan (Limerick City, Labour)
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I want to come back in on what the Minister has said. We tabled this amendment because of one of the findings of the accelerating infrastructure taskforce in relation to the issue that is there with fragmented funding models and the issues that are there in terms of infrastructure delivery. What we are trying to do with this amendment is to streamline that.

Jack Chambers (Dublin West, Fianna Fail)
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We can streamline. That means reform, not necessarily more resources in certain instances. I will be responsive to the needs of regulators or agencies, but we cannot just keep an eco-system of fragmented process and then just resource it more if it is too slow. Agencies or regulators need to restructure. They need to reprioritise their staffing to ensure that is aligned with quicker, faster and more efficient decision-making. That is what will yield better accelerated infrastructure delivery. It is against a backdrop of very significant resourcing and staff increases across many of these authorities where the pace of decision-making is desperately slow. I do not agree with a proposition or suggestion that more staff solves the problem in certain instances. There may be cases where we need to respond with agencies and regulators, and we are open to that. Mentioning the sufficient resources is quite an open call. It is the wider about what we are trying to do in terms of how we reform.

If they have got multiple processor layers, it is about removing those layers, cutting the processes and reducing unnecessary bureaucracy, which has a resource attached to it presently or a staffing resource attached to it. That needs restructuring in order to build a more efficient public service. That is the work we are doing in terms of wider delivery. If the first issue any body or agency I meet raises with me is the need for more staff and it is not willing to look at itself in the context of reform, that is a problem. Every agency, body or Department should be restructuring and reforming, digitalising and becoming more efficient in the context of resource constraints which exist across the system. That is the case in any given year. This does not speak to the spirit of what we are trying to do. Of course, in any given year, we work with Ministers and Departments on pressure points, but there has to be reform, and both have to work together.

Conor Sheehan (Limerick City, Labour)
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I wish to come back in very briefly. I know we are not going to agree on this. The spirit behind this amendment is around addressing the issue that is there, for example, in some cases, a lack of multi-annual funding frameworks to make sure that prescribed bodies, such as local authorities, have sufficient resources to be able to carry out, in a timely manner, the things that this Bill is going to prescribe to them.

Jack Chambers (Dublin West, Fianna Fail)
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Expenditure has increased - a lot of it is attached to public sector staffing - very significantly in the past five years. Across many of these bodies, there is sufficient staff but it is about how we deploy our staff in the most efficient process that yields better delivery and reform. It is not an absolutist position. Of course, we will work constructively and with bodies. Many of them attended our infrastructure taskforce. We are already seeing some of them reform process, which we know will improve delivery. They have been clear that, for many of them, it is not a case of more staff and resourcing. They acknowledge that there are processes that have become unnecessary or burdensome. We are working with them constructively to reshape how they function in the interest of delivery. That should apply whether it is in infrastructure or in any other way of the public service. That should be the ambition and aim. It should not just be a conversation of more resourcing and staff. We want to be agile about responding to that if required, but also pushing for a better system and more reform.

On the Deputy's point on multi-annual funding, current expenditure trajectory has increased significantly. The funding allocation to most public bodies is quite stable and certain in terms of their position in any given year.

I have not had that raised with me as an issue for public bodies in that context.

Peadar Tóibín (Meath West, Aontú)
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I am in support of Deputy Sheehan's amendment. We had representatives of the local authorities before this committee. They said that they were shy hundreds of positions and that they needed to be able to do their work. It is no secret that a lot of local authorities need more planners, for example, and that this is a block on the speed of planning. The objective the Minister has indicated of reducing the level of bureaucracy, red tape, processes, etc., and simplifying matters is music to my ears. He is absolutely right. Regulation often swings. It has its own cycle. Sometimes there is under-regulation, which we had up to the crash and 2011, and then we have over-regulation happening. There is a sweet spot in terms of making sure that the rights and the needs of the environment, people and society are protected but, obviously, over-regulation causes major problems and costs to the rights of people, the environment and businesses.

We had An Coimisiún Pleanála here. Public servants are always very cautious about saying they do not have enough. You can tell - there is a speak that public servants have. They do not want to point fingers at the Minister or the Department. There is, however, still a planning backlog in An Coimisiún Pleanála. It will have a certain size of planning objective it is processing in that timescale now, but there are heaps that are smaller, for example, projects with fewer than 100 houses. I know of a builder in Meath who has been waiting, I think, 20 months for a planning application to go through. While I accept fully that An Coimisiún Pleanála has had a significant investment in planners in the last while, it is still not where it needs to be.

The key issue here is that we need sufficient resources. I mentioned that this could be a zero-sum situation in that if we do not increase the capacity of the whole process, we are just pushing stuff up the priority list that will have the effect of pushing stuff down. In reality, however, this country went ten years after the crash with a massive gap in infrastructural spend. I think we were second to Romania in how low our infrastructural spend was for that period. If we take the Minister's admission here that the system is also grinding to a halt, our infrastructural capacity is about 36% less than it should be in relation to other countries. Both are necessary, and we should look at sufficient resourcing as a statutory objective.

Louis O'Hara (Galway East, Sinn Fein)
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To follow on briefly from that point about An Coimisiún Pleanála, the reality is that deadlines are being missed. We recently had the most recent iteration of the Galway ring road planning application. It was passed, and I very much welcome that decision, but it took two and half years and longer before that. It seems clear to me, on the basis of that and other projects, that we do not have the resources within An Coimisiún Pleanála to deal with these really large planning applications. Is the Minister satisfied with that length of time being taken for a decision? If he does not see it as a resource issue, what is causing these extremely long delays in decision-making?

Jack Chambers (Dublin West, Fianna Fail)
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I appreciate everyone's comments. This Bill is not drafted to deal with resourcing of any public body. That is a matter of our engagement with respective Departments and Ministers. In the political system, in government and in opposition, across everybody, the primary response to issues or delays is always more resourcing. We all have to question process and regulation. To Deputy Tóibín's point, if you want more resources or more staffing, you are not necessarily questioning the system that exists underneath it. I accept that he wants to do both, but that is against the backdrop of very significant increases for An Coimisiún Pleanála in recent years.

Every year in the budgetary process, we engage with Departments on their pay and numbers strategy, on what is being prioritised, and where they are deploying and redeploying their headcount. There is a broader staff complement within Departments and agencies, and they can manage their pay and numbers to prioritise headcount into an area that requires focus in the context of their overall numbers. I accept the intention behind the amendment. In any legislation we do not deal with resourcing or staffing. We deal with that on the basis of how our budgetary process advances. What we are trying to do here is de-layer, reduce regulation where possible and reprioritise roles in the context of making different bodies or agencies more efficient. We will then work with different bodies properly on their respective needs as well. I am not denying that some bodies may require more. I am just saying the whole focus of what we are trying to do this year in our infrastructure team is to change things as they exist today in order that we better use the staff we have.

Conor Sheehan (Limerick City, Labour)
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I move amendment No. 7:

In page 7, to delete lines 8 to 10.

This amendment goes back to the issues I raised at the start of Committee Stage in relation to the amount of power this Bill vests in the Minister. This amendment seeks to remove the power of a Minister to direct a public body to take specified steps in relation to specified projects. This is to remove the power of the Minister to essentially step into the shoes of a public body, overriding its discretion and effectively performing functions that are vested in law in another entity. If we are talking about doing this, a much more honest conversation would be about taking the functions away, or looking at taking the functions away, from these bodies in certain cases and conferring them all on Ministers, instead of the approach being taken in this Bill.

Jack Chambers (Dublin West, Fianna Fail)
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I thank Deputy Sheehan for his amendment. I am not accepting it. I am happy to provide any clarification. I will run through what exactly is proposed here.

The power to issue directions to public bodies as regards authorisation of designated critical infrastructure is an important safeguard. It allows direct instructions to be given to a relevant public body but only in relation to the implementation of measures that are required to give effect to the principles outlined in section 5 of the legislation. The power to issue such directions is a common measure that is contained in multiple pieces of legislation in the context of public bodies that Ministers have to deal with in terms of their day-to-day responsibilities. That is why in this context any direction will be limited to specifying those measures that may be deemed necessary for the public body to prioritise the performance of its relevant functions, act in an expeditious manner, avoid undue delays, reduce the time required for the authorisation to be completed, perform functions in parallel with any other relevant public body, co-operate with any other relevant public body and allocate the necessary resources for these functions. These functions must be performed without prejudice to a public body's functions under any other enactment. It is hence clear that I cannot use a direction to circumvent other legislation or to determine a decision, nor will I.

No Minister has the ability to do that. The powers of direction we are discussing solely relate to the acceleration of decisions. In addition, I am required to consult the Minister responsible for the respective public body in question before issuing any direction under the legislation. It is important to retain the authority to do so because of the interdependencies of the approval processes for designated critical infrastructure. The lack of any one authorisation may unduly delay a project or programme. This may have a particularly pronounced effect where an authorisation is a sequential one on a critical path for a project or programme. In other words, to give effect to the purpose of this Bill, which is the acceleration of critical infrastructure, this limited scope but important direction allows for an intervention to take place in the event that the legislation is not being implemented effectively. This is what the section seeks to do. That is why I am not accepting the deletion.

Conor Sheehan (Limerick City, Labour)
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I move amendment No. 8:

In page 7, between lines 16 and 17, to insert the following: “(6) Where a relevant public body is stated in law or is otherwise required by law to be independent in the performance of some or all of its functions, the power to give a direction in writing under this section shall not be exercised so as to override, compromise or otherwise interfere with the independent performance of those functions.”.

Amendment No. 8 is very similar to amendment No. 7. It would apply where a public body is stated to be independent in its functions, as An Coimisiún Pleanála is, or where it is required by law to perform certain functions independently, as a local authority would be in planning cases. The law requires that decisions be taken by those on whom the decision-taking function is conferred and not by anyone else by reference to relevant criteria and considerations and ignoring irrelevant and extraneous factors. The amendment provides that the power to direct cannot override, compromise or otherwise interfere with the independent performance of such functions.

Jack Chambers (Dublin West, Fianna Fail)
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I am not accepting the amendment. It is similar to what I said previously. The amendment is simply not necessary. I pointed out that it does not dictate the decision that public bodies must reach in any way. Instead, it simply provides a clear articulation of a small number of projects or programmes the Government considers to be vital in the public interest and creates a fast-track pathway without skipping any steps in the respective approval process or weakening any safeguards or statutory functions attached to a particular agency. I also pointed out concerning the previous amendment that the power to issue directions in the authorisation of designated critical infrastructure is an important safeguard. Where I do decide to issue a direction, it must be strictly limited to the measures a public body must take to accelerate its authorisation process and would be issued in consultation with the relevant Minister. A direction under this Bill cannot dictate a specific regulatory decision. As such, it would already be unlawful for any direction issued under this section to override, compromise or interfere with the independent statutory performance of particular functions. Therefore, the provision suggested is redundant. I do not believe it is necessary to include it.

Conor Sheehan (Limerick City, Labour)
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We are opposed to section 7 because of the modification of the application of the climate Act. We propose that section 7 should be deleted because this is the third Bill that has sought in recent months to disapply the Climate Action and Low Carbon Development Act 2015. We are concerned about this because the Minister in his remarks at the beginning of the session did not rule out designating fossil fuel infrastructure as critical infrastructure. Also, many of the issues that arose in relation to judicial review concern how EU law is transposed. The 2015 Act is a reason a decision was upheld in a number of judgments. The disapplication of that Act stops the Government prioritising something as critical infrastructure were it potentially to have positive climate benefits, such as a new Luas line, for example. I believe this was raised extensively on Second Stage in the Dáil.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have concerns about this. Section 15 of the climate Act strengthens the rationale for the delivery of critical infrastructure, be that public transport or renewable energy. Section 15 strengthened the case of An Bord Pleanála in the Coolglass case. I will read from the Bill digest concerning that case:

The Supreme Court considered application of section 15 of the 2015 Act in Coolglass v An Coimisiún Pleanála. The Court held that section 15 of the 2015 Act does not require public bodies to undertake any new functions related to climate action. Rather, section 15 of the 2015 Act requires a relevant body to perform its functions consistent with climate objectives, so far as practicable.

It is not highly onerous. There has been a pattern where these issues begin to be settled in Supreme Court rulings and then the Government comes along with new legislation or provisions just as the matters have been clarified in the courts. That is not necessarily helpful. Did the Minister read the views of Alice Whittaker, the chair of Philip Lee and climate and environment partner at the firm about her views that it would lead to "unintended consequences" and is a "very blunt" policy measure? She said that the Coolglass judgment allowed for a "practical" approach as outlined in that judgment and "there's a clever way to go about this, and I think that it's a very blunt instrument to strip out something that is essentially within government control". She also said "simply excluding that from the legislation is a little bit short-sighted". Did the Minister read those comments? What are his views on those comments that there are potential unintended consequences for doing he is doing here? By doing this, he is removing provisions that would strengthen the case for the efficient delivery of much-needed critical infrastructure, be it public transport or renewable energy.

Réada Cronin (Kildare North, Sinn Fein)
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Under section 2, we are already obligated to be compliant European law in connection with climate targets. Is that correct?

Jack Chambers (Dublin West, Fianna Fail)
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We have to comply with EU law.

Réada Cronin (Kildare North, Sinn Fein)
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This section is not abandoning climate targets.

Jack Chambers (Dublin West, Fianna Fail)
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Section 7 disapplies section 15 of the climate Act from designated projects and programmes. Section 15 imposes an additional, unnecessary and vague level and layer of bureaucracy on the decisions of public bodies. This risks being one of the factors of judicial reviews public bodies face in the performance of their duties. On the Coolglass judgment, section 15 creates a legal standard which must be complied with by a relevant body and, if necessary, enforced by the courts.

Further, that decision stated that relevant bodies must make their decisions in a manner consistent with climate objectives. That decision will vary widely on a case by case basis. Departure from climate objectives is permissible only where there are genuine practical difficulties that make full alignment impracticable. My difficulty is that this is an inherently subjective matter and hence section 15 may open a rich new stream of judicial reviews of decisions of public bodies. What we are seeking to do is to remove the avenues for judicial reviews. They are an important tool to ensure that the decisions made by bodies are carried out in a transparent, fair and accountable way, but as the administrative complexity of the State rises, the application of this test to a significant number of the decisions made by public bodies risks delaying critical infrastructure. I can go through different critical infrastructure in water, transport and energy, and the risks that could emerge. I believe, and we have assessed this legally within the Department and the Government, that there is a risk that the Supreme Court judgment could lead to increasing calls on the courts to determine whether individual decisions by public bodies pay sufficient attention to what is set out in section 15. This risks potentially slowing the development of many of the projects in the national development plan and creates a significant deference to the courts in determining whether a project is aligned with section 15 or not. I would say, importantly, that every Exchequer-funded project is already required to measure and price its greenhouse gas emissions under the infrastructure guidelines. That provides an important incentive to minimise emissions where it is cost-effective to do so. Every project is also required to undergo a climate adaptation assessment to ensure it does not give rise to undue risks. All other climate and environmental obligations will apply. However, even where a project may have a negative impact on the climate, that alone should not be a reason that a particular project should not proceed. We must have a balance in the context of prioritisation, which is there in the national development plan.

I referenced during the Second Stage debate what has been said publicly by certain people about, for example, using section 15 to stop a road project. I do not believe it is a matter for the courts to decide whether we should fund a particular road project or not. If it has gone through all the processes and has got planning permission, and has got that planning permission through an appeal, we should not create a significant risk through section 15 of that project ending up in the High Court or the Supreme Court. The judgment raises a significant risk of that. That is the basis upon which we are removing the application of section 15. It will lead to a better balance in decision-making and remove that additional avenue, which presents risks to wider delivery.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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This fundamentally comes down to why we have the climate Act and section 15 of it. The reason is that the previous Government signed up to the Paris Agreement and ratified it to ensure that Ireland is legally bound to the goal of keeping global temperatures within safe limits. This Government is now saying that should not necessarily be a consideration when it comes to critical infrastructure. The Coolglass ruling is clear that projects need to be consistent with climate objectives, as far as is practicable. It is not absolute but requires it as far as is practicable. That is now being ditched. As I said, section 15 strengthens particular types of critical infrastructure and the rationale for delivering them, but it seems now that there is an abandonment of those objectives when it comes to the Government. It seems this is no longer a priority. We are signed up to the Paris Agreement but when it comes to the objectives set in legislation by the previous Government and the commitments that were made, we are ditching them, one by one. That seems to be what is happening.

Peadar Tóibín (Meath West, Aontú)
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The Climate Action and Low Carbon Development Act 2015 is problematic in terms of the building of infrastructure across the country. Infrastructure needs to take a balanced approach on a case-by-case basis. The Galway ring road, for example, was cited in relation to that Bill. People in Galway are spending hours in traffic on a daily basis, trying to get through the city but they cannot do so due to the lack of the Galway ring road. In the North of Ireland, the A5 has been stalled in court by a similar Bill, which was voted on by the parties there. Dozens of people are dying on the A5 at the moment. There is a hierarchy of need on certain occasions. For sure, we need to aim towards and fulfil our climate objectives, there is no doubt about that, but there are occasions when we have to rebalance that with the needs of people and communities. At the moment, the climate action Act is a difficulty in that regard.

I have mentioned the habitats directive, which is obviously a European issue that is not in our gift at the moment. However, I think the Government should be using its influence. That directive is stopping the likes of flood defences being built across the country. The problem is that there is an imbalance here, which is, unfortunately, leading to significant suffering in communities.

Conor Sheehan (Limerick City, Labour)
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I want to ask the Minister specifically what evidence he has that the climate duty he is removing as part of this Bill is holding up critical infrastructure projects. Can he outline what judicial reviews have been upheld because of section 15? Sections 2 and 7 of the Bill maintain the supremacy of EU law, if that makes sense. If we have to act in accordance with EU law in terms of our climate objectives, surely what we designate as critical infrastructure if it is aligning with EU law because of the climate directives that are there should trickle down into Irish law, as it currently is under section 15 of the 2015 Act.

Réada Cronin (Kildare North, Sinn Fein)
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It is important that the Government does not even attempt to pretend that the reason Ireland is in such a bad infrastructural state, as I spoke about in the Dáil last week, is because we are trying to reach climate targets. I am a member of the climate committee. The Government cannot hide behind judicial reviews and climate targets as the reason we are in a league of our own when it comes to infrastructure. This Government is falling short and communities are being left behind. I do not think the Minister should be pretending that us trying to reach our climate targets is the reason for our infrastructure deficit. Communities are waiting, whether for a ring road to clean up pollution in a city or for delivery of the rail service to Navan and Kilcock. The Government should be careful about pretending that climate responsibilities are causing delays in infrastructure because they are not.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Deputies for their comments. To Deputy Cronin's point, we still have targets that we have set out in the context of the climate Act-----

Réada Cronin (Kildare North, Sinn Fein)
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European targets, yes.

Jack Chambers (Dublin West, Fianna Fail)
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-----and we need to reduce emissions. What I have said here is that the subjective test set out on a case-by-case basis in the Coolglass judgment has a chilling effect. We have to be real about that.

One thing we set out in the infrastructure reform is responding to legal precedent. I do not believe it was ever the intention of section 15 to defer decision-making on infrastructure to the courts, in a very subjective manner, on whether a particular road should progress or not. I believe we need to consider emissions on a sectoral basis. There may be a particular project of critical infrastructure which may, on a case-by-case basis, not fulfil what is set out in section 15 but it should not be stopped by the courts, in my view. There is a real chilling effect from that.

The wider application of what we seek to do, in all its component parts, will accelerate and build a better low-carbon economy. That is for sure across transport, energy and, in terms of water infrastructure, a much better environment. In particular, I think of the raw sewage going into rivers across the country and the impact we want to make in terms of the wastewater infrastructure, which is all too slow. The judgment sets a very high bar. I do not believe that communities should be at the behest of a particular judicial interpretation for one particular project. We should leave that avenue open. If it is a project that is funded, that we want to accelerate and progress and has gone through all the respective planning and appeal considerations, to create this new bar of uncertainty based on the Coolglass judgment would create real difficulties. It is on that basis that section 7 is important.

We are trying to capture it in terms of the broader definition that is there. We are looking at the definition for public infrastructure. We have a definition at the moment. I have said that I may come back on Report Stage in terms of ensuring it is captured across public infrastructure more generally. We have had it there. I was clear during the Second Stage debate that it does not relate to some of the other issues that were referenced by Members. That is not the intention of section 7.

Conor Sheehan (Limerick City, Labour)
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The Minister referenced the Galway ring road. As far as I understand it, the Galway ring road was upheld because of the 2021 climate Act. To the best of his knowledge, what judicial reviews, if any, have been upheld specifically because of section 15?

Jack Chambers (Dublin West, Fianna Fail)
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What we are responding to here is the legal precedent that was set in the Supreme Court from the Coolglass judgment, which creates a risk for critical infrastructure. It is on that basis we have progressed the legislation, under section 7.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The Minister did not respond on Alice Whittaker's comments and views.

Jack Chambers (Dublin West, Fianna Fail)
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I have read her comments and that is her opinion. Again, it is this broader deference to the courts making all the decisions. We are trying to build a system that reduces the number of judicial reviews that go to the courts. We are giving a legal avenue here for more judicial reviews to the courts, and trying to respond to the legal precedent and the judgment that has been set. That is her view. We have assessed it in the Department and with the Attorney General.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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With respect, it is not deference to the courts. Ms Whittaker said, “I think there's a clever way to go about this, and I think that it's a very blunt instrument to strip out something that is essentially within government control”. Her argument is that we are ceding influence and control over this by taking this out, and that what the Minister is going to do will have unintended consequences. It is not going to achieve the objectives the Minister thinks it is. She is making the point that by taking this out, while there is still European law and European provisions, this is reducing what is under the control of the Government. That is not deference to the courts. Has the Minister considered that?

Jack Chambers (Dublin West, Fianna Fail)
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Having read the Coolglass judgment, I think not acting in response to that judgment would absolutely be creating risk in the context of future infrastructure. We have to be responsive to that.

Seán Fleming (Laois, Fianna Fail)
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Amendment No. 9 has been ruled out of order because it is not relevant to the provisions of the Bill.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 10:

In page 7, between lines 32 and 33, to insert the following: “Report on permitting process

9. The Minister shall, within 6 months of the passing of this Act, lay a report before Dáil Éireann on the feasibility of streamlining permitting processes for large infrastructure projects, so as to identify what permits can be applied for concurrently in order to save time and reduce costs.”.

This amendment proposes that within six months of the passing of the Bill, the Minister would lay a report before the Dáil on the feasibility of streamlining the permitting processes for large infrastructural projects. The issue around the concurrent issuing of permits, where possible, to reduce time and save costs is one that he is familiar with. Will the Minister give us an update on where the processes are around trying to streamline this? Where are we at? Is it being worked on? Will the Minister provide the Dáil with a report within six months of the passing of this Bill?

Jack Chambers (Dublin West, Fianna Fail)
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I agree with the broader sentiment of the amendment, but work is already under way within the Department. We have extensive reform of the regulatory processes at the core of the action plan we published in December. It goes into legal reform, regulatory reform, communication and delivery reform. We have stood up a regulatory simplification unit whose central focus is to make sure that this is all streamlined across the board. We will be setting out progress on this over the period ahead. For example, we have had extensive engagement with the Maritime Area Regulatory Authority on maritime consenting and licensing processes where we have bottlenecks to progress reforms. We have been working with the EPA on its regulatory processes to improve efficiency and drive reform in that area. The amendment is not necessary as this has all commenced in the quarter that has just happened, and we will be progressing reforms through the utility and transport clearing house which we established as well. The Bill will obviously help to drive some of those reforms too. I do not believe it is a necessary legislative amendment as we are willing to report on what we are doing anyway.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank the Minister for the answer. As he is aware, this has been an ongoing issue for a number of years and the process has got worse, frankly. With some large projects, we have seen that it takes years and years to go through all the different permitting processes. A marine survey can be done initially to get a project through the first stage of a process and then it moves on to the next stage and so on. By the time the project gets towards the end, the applicant can be told that its data is out of date and that it needs to go back and apply for permission to get new data and so forth.

I appreciate that there are better staffing levels now, but it has taken people years to get through the EPA for a licence which they can only apply for after they have received planning permission and so forth. It can take years to get through that. I know there are some better resources now and we are getting closer to the timelines that we need on some of these processes, but is the idea of being able to apply concurrently rather than sequentially on some projects to speed things up being looked at? Is it going to be done?

Jack Chambers (Dublin West, Fianna Fail)
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Yes.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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When is there going to be progress on that? When will the Minster be able to give us concrete information on this?

Jack Chambers (Dublin West, Fianna Fail)
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As an example, we have had the EPA and MARA before our infrastructure taskforce. The Department and its regulatory simplification unit are engaging extensively with regulators and challenging their processes, timelines and structures around how staff are deployed in the context of their statutory function. Reforms are essentially being progressed with them. For example, we recently had a positive engagement at the infrastructure taskforce with the EPA, which is advancing internal reforms that will much improve the problem the Deputy referenced. As that process progresses over the next couple of months, the Department will be able to report on those changes as they occur. To give another example, we have set out the sub-actions in the infrastructure action plan. We will be bringing a memorandum to Government on this in the next week or two but, of the 35 actions in quarter 1, 34 have been delivered. We are delivering what we said we would do, and that goes across the regulatory landscape and the legal reforms, some of which are reflected in the Bill.

We are accountable and transparent as we advance reforms. There is a lot of active work ongoing with respect to some of these regulatory agencies that are involved in permitting, licensing and consenting, for example. As we conclude some of the reforms, we will be able to report on them.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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When does the Minister think the bulk of the ongoing work he referred to will be brought to a conclusion?

In terms of permits or permissions that can be applied for concurrently, will the Minister bring forward proposals identifying the areas where it does not need to be sequential and can be done concurrently? If so, when will he bring forward those proposals? This has been talked about for years. Are we close to this actually being done?

Jack Chambers (Dublin West, Fianna Fail)
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Nearly all of the reforms set out in the action plan are for delivery in 2026. I can get into the subactions in certain areas. For example, some of them are in quarter 2 and some are in quarter 3, which may require further legislative change. Some of the concurrence will be helped with the legislation we have here, for example. We are working with the regulators to do that, but most of it will be achieved in 2026.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Will that include being able to apply for permissions, licences or permits concurrently in some instances where it is appropriate?

Jack Chambers (Dublin West, Fianna Fail)
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Part of what we issued in the circular in terms of regulatory process reform is to have a fixed timeline as well as driving parallel consent licences - to do concurrence, as the Deputy mentioned. That direction has been issued and now we are working with the respective regulators to put it into place, I expect, in 2026. Most of the reforms are for delivery in 2026. We did a lot of work on legislative changes in quarter 1. Some of the structures have been established. There are challenges to regulators in terms of timelines, performance and addressing some inefficiencies and excessive process. We just have to deliver for the country, essentially. That has all been referenced in that context and it will be helped by this legislation as well.

Seán Fleming (Laois, Fianna Fail)
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On behalf of the committee, I thank the Minister and his officials for their attendance.