Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I fully accept the need to use such a motion to introduce amendments that are Covid-related because of the emergency nature of the pandemic. However, the use of this mechanism to introduce what is essentially an entirely new Bill to address the legal problems with existing substitute consent legislation is wholly inadequate. It is important to remember that this issue has not just been sprung on us. The first Derrybrien European Court of Justice case was in 2008. The second case, as the Minister mentioned, was in 2019. The €15,000 per day fines have been accruing since then and will continue to accrue, even if we pass this legislation today, until at least June or July of next year. That will result in a total of up to €15 million in fines. We also had the Supreme Court judgment on a related substitute consent matter in the summer of this year. We are therefore led to believe that the Attorney General was working on regulations from July, when that Supreme Court decision was taken, through to November. Only three weeks ago, we are told, the shift was made to legislation. Again, this is not in any way a criticism of any official in the Department, but to expect officials to write such complex legislation in three weeks and then to give Members of the Oireachtas literally hours to consider it is wholly inadequate.

My big concern about this is not an objection to the intention behind the legislation. Modest and all as it is, I support it. My worry is the mistakes and genuine human errors that people working late into the night on complex legislative formulas are likely to make. One possible error I wish to bring to the Minister's attention now, in case we do not get to amendment No. 21, relates to that amendment and to the proposed subsection 6(b)(1A), the new proposal to introduce essentially a second consideration of exceptional circumstances when the substantive matter is before the board. My concern is this: against what definition of "exceptional circumstances" will the board make its deliberations? Will it rely on the existing legislative provisions for exceptional circumstances outlined in subsection 177D(2) of the existing planning Act or something else? The Minister's amendment does not make that clear. My big concern is that, as we know already, when substitute consent leave or notice applications are being considered, the existing legislative provisions of - I am forgetting the words because this is so damn complex - exceptional circumstances do not apply in all those cases. It is incumbent on the Minister to say at some stage today whether that legislation, specifically subsection 177D(2), will apply to all substantive considerations by the board of applications for substitute consent at the second stage, as per his amendment.

The Minister does himself and his Department no favours by not giving us more time to scrutinise this. I am not yet convinced he could not have introduced a full Bill, gone through pre-legislative scrutiny and then asked the committee and the Oireachtas to prioritise it early in January. If we had done that, we would have had more time and it would still have been in place in time for the board to consider these matters and make the decision within the timeframe it will probably make that decision by next summer. Therefore, spending just a little more time to get this right would have been the right way to do it and would not have incurred any additional fines.

I wish to acknowledge not only the two detailed briefings we got from the Minister's officials but also the very detailed written answers they gave to the committee at my request. I believe they stayed up until 1 a.m. drafting those to email them to us, and that has helped us enormously. I am not convinced, however, that the majority of us, and I include myself in this, are fully assured that the text of the legislation before us does exactly what the Minister says he wants it to do, or that it is the best formulation of the text to address the Supreme Court decisions and the two European Court of Justice decisions referred to and does not contain accidental human errors, mistakes or unintended consequences. On that basis, while I will not oppose the Minister's motion, I urge him not to get into the habit, which his predecessors did, of bringing in complex legislation at the last minute and denying the House the rightful opportunity to scrutinise it fully, irrespective of whether we are for or against the legislative proposals coming from the Government.

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