Michael McNamara (Clare, Labour) | Oireachtas source

Before we finished last time, I welcomed the Minister's considerable efforts in bringing the Bill before the House. While the Bill has many positive attributes, I expressed concern on Committee Stage about the compensation requirements. When we were originally on Committee Stage, I questioned whether a compensation clause was required for forest owners who were refused a felling licence. There is a compensation regime in all jurisdictions of the UK. There is one in the English Forestry Act and a simple compensation regime was introduced in Northern Ireland when its forestry Act was introduced in 2010. It was not brought in because the Northern Ireland Executive particularly wanted to compensate forestry owners, but because it felt there was a legal requirement to do so, arising from the UK Human Rights Act, which incorporated the European Convention on Human Rights, ECHR, and the property rights guaranteed in it into UK law.

We have a similar incorporation measure here, the European Convention on Human Rights Act. Therefore, I was initially perplexed on Committee Stage about how something could be a requirement to comply with the ECHR in Northern Ireland but not here. The Minister said the legal advice he received had changed, and this is of concern to me. The law did not change, nor did the ECHR or the Irish Constitution, and there were no Supreme Court cases interpreting this aspect of the Constitution. While I accept that the legal advice changed, I do not know how it could have. If it was wrong the first time, is it right now? If it was right then, is it wrong now? If it was wrong then, is it still wrong now?

The legal advice was that compensation was required, and I commend the Minister on introducing it. I commend him on going to the trouble of following up on what I asked him to do, and finding out that a compensation provision was required. However, I am concerned that the compensation provision is a compensation provision in name only because there are so many exclusions in that no Deputy could have any illusions that anybody will ever be compensated under it. If a compensation provision is required, surely a compensation provision which can and will never result in compensation being paid could not possibly meet the requirement.

For all those reasons, I have personal doubts as to whether this Bill is constitutional. I accept that the Minister's legal advice is that it is, and I accept the separation of powers, which was in the news earlier this week. It is not for this House to decide what is and is not constitutional. Only the Supreme Court can do so. However, the House should be cognisant of previous decisions by the Supreme Court when it outlined the contours of private property protections. Pursuant to Article 26 of the Constitution, the Supreme Court has found that Bills which came from this House, namely the Employment Equality Bill 1996 and the Housing (Private Rented Dwellings) Bill 1981, were unconstitutional because they transferred a benefit which would accrue to one group in society to another.

In the case of the Employment Equality Bill, it was the cost of providing places of employment which were accessible to persons with disabilities and in the case of the Private Rent Restrictions Bill the issue was restricted rents. I fear the Forestry Bill does something similar. We all agree that the environment and water quality must be protected and that these are issues of the common good. However, if a decision is made for certain reasons, a person will not be compensated. While we all accept that the reasons set out are valid ones for restricting people, the issue is why the costs of that should be borne exclusively and entirely by the private forestry owner, particularly where that private property owner has obtained permission from the State to plant the forest in the first place. I have reservations about the Bill and its compliance with the protections for private property in the Constitution. It is for the Supreme Court not for me to decide that. The President may or may not see fit to refer the Bill. It is his prerogative which he exercises on the advice of the Council of State free of any interference from anybody in this House.

My concern regarding the constitutionality of the Bill does not relate to the above-mentioned provision only, although it is the primary issue. Section 14 empowers the Minister to remove or destroy vegetation on land which is unoccupied or where the owner fails to comply with a notice to remove it and the Minister is satisfied that the vegetation poses a fire risk to a forest in the vicinity. Again, there is no compensation requirement for the owner of the adjacent lands. There was a case in the 1980s - ESB v.Gormley - in which the Supreme Court found that parts of the Electricity (Supply) Act 1927 providing for a way leave for the ESB to enter across lands to erect structures were unconstitutional. While the court indicated specifically that the right to enter onto lands and lop trees or cut vegetation was not an unreasonable restriction and was constitutional, the Act included a right to compensation. Owners of lands the ESB enters to cut trees or remove vegetation can apply for compensation. Section 14 includes no right to apply for compensation where the Minister empowers somebody to enter onto lands to cut vegetation.

I cannot put the matter any further except to say, going back to the idea of the separation of powers, that if the Bill were referred to the Supreme Court, it would exercise curial deference. It would consider that the Oireachtas knows best and that the Members have debated the matter. Within certain limits, there is a deference to the Oireachtas. The court will say that the Oireachtas considers the Bill will promote forestry. However, we have not discussed how it promotes forestry to introduce a provision whereby a person who applies for a permit to plant lands can be told 50, 60 or 100 years later, the Minister having carried out whatever tests he or she wants, that we have changed our minds, the trees cannot be harvested and we are not providing compensation. It could be 200 years in the case of an oak forest. While I can see how that might benefit the environment and water quality, I cannot see how it will encourage private persons, corporations, companies and trust funds to engage in forestry. I cannot see how it is for the good of forestry that someone who is granted a permit to plant a crop on his or her land does not have the certainty of compensation in the event of being refused a felling licence. They have that certainty in Northern Ireland because the legislature there felt it was legally necessary to comply with the European Convention on Human Rights, or ECHR. They have it in the UK, where it was introduced in 1967. There was no issue of doing it to comply with the ECHR in that case but they may be particularly attached to private property rights in the House of Commons. The Bill before the House does not contain such a provision and for that reason I have concerns about its constitutionality.

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