Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

I will address amendment No. 8, which is tabled jointly by Deputies Cian O’Callaghan and Ó Broin. The amendment seeks to replace the word “appropriate” with the word “essential" in section 3(2) of the Bill. This would amend section 3(2) of the Bill to specify that the Government may by order specify such period, in this section referred to as an "emergency period", for the purposes of this section as the Government considers essential, rather than as the Government considers appropriate. I must reject the amendment because the word "appropriate" sufficiently covers the intentions of this proposal.

Furthermore, section 3(4) of the Bill outlines that before making an order under subsection (2), the Government must be satisfied that the making of such an order is in the public interest - this may have escaped both Deputies in advance of them tabling the amendments - and specifically having regard to: the nature and potential effect of Covid-19 on individuals, society and the State; the need to eliminate or reduce the threat to public health of Covid-19; the policies and objectives of the Government relating to the protection of the public from Covid-19; the need to mitigate the adverse economic effects resulting from the spread of Covid-19 and the measures adopted to prevent its spread; and the need to eliminate or reduce the impact of Covid-19, and the measures adopted to prevent its spread, on the effective performance of functions under those enactments. It is clear how the Government would deem it to be appropriate.

Section 3(5) of the Bill requires that before making an order under subsection (2), the Government must be satisfied that the making of such an order is in the public interest. I do not envisage any instance in which a Government would make an order that it did not consider to be in the public interest under these measures. In the case of sections 4(4), 6 and 17(6) of the Building Control Act 1990 or any instrument thereunder, it should ensure the effective operation of that Act and protect the health, safety and welfare of occupants of, and visitors to, buildings and persons for the time within the curtilage or immediate vicinity of buildings. In the case of any other relevant enactment, it must ensure the effective operation of such enactment and proper planning and sustainable development. It is clear why I will not accept amendment No. 8. The Government has set a high bar for this to happen, and it is done in the public interest to protect against the spread of Covid-19 and, indeed, to protect the staff.

Amendment No. 9 is also tabled jointly by Deputies Cian O'Callaghan and Ó Broin.

It seeks to insert a new subsection (3), which would require the Government to include a schedule to an order made under subsection (2) or to otherwise publish at the same time:

(a) the reasons and considerations for the making of the order under subsection (2), including reasons in respect of all the considerations listed in subsection (4), and in the context of each of the administrative areas covered by the order and those excluded from it,

(b) and the associated justification necessitating the approach taken to the application or non-application of the emergency period, or varying emergency periods across relevant enactments specified in subsection (9) and administrative areas covered by and excluded by the order.

I am also opposing this amendment because I believe that the Bill as it stands contains more than sufficient provisions to cover what is intended by this proposal. In making an order under subsection (2), the Government must have regard to the matters specified in section 3(4). Therefore, an order made under subsection (2) will state that the Government must have regard to the matters specified in section 3(4). Following enactment, the legislation, including section 3(4), will be made available on the online Irish Statute Book. Furthermore, an order made under subsection (2), which, pursuant to subsection (3), specifies an emergency period in respect of one or more administrative areas - and different emergency periods in respect of different areas - must state that the order is specifying such matters pursuant to subsection (3) in such an order or it will not apply. All orders made under section 3 following enactment will be available on the online Irish Statute Book.

Section 3(4) requires that before making an order under subsection (2), the Government must be satisfied that the making of such an order is in the public interest, specifically having regard to:

(a) the nature and potential effect of Covid-19 on individuals, society and the State,

(b) the need to eliminate or reduce the threat to public health of Covid-19,

(c) the policies and objectives of the Government relating to the protection of the public from Covid-19,

(d) the need to mitigate the adverse economic effects resulting from the spread of Covid-19 and the measures adopted to prevent its spread, and

(e) the need to eliminate or reduce the impact of Covid-19 and the measures adopted to prevent its spread on the effective performance of functions under those enactments.

Section 3(5) requires that before making an order under subsection (2), the Government must be satisfied, in addition to the provisions in subsection (4), that the making of such an order is in the public interest, specifically having regard to:

(i) in the case of sections 4(4), 6 and 17(6) of the Building Control Act 1990 or any instrument thereunder, to— (I) ensure the effective operation of that Act, and

(II) protect the health, safety and welfare of occupants of, and visitors to, buildings and persons for the time within the curtilage or immediate vicinity of buildings, and (ii) in the case of any other relevant enactment, to ensure— (I) the effective operation of such enactment, and

(II) proper planning and sustainable development.

I will now address amendment No. 10, as jointly tabled by the same Deputies. The amendment seeks to delete subparagraph (ii), which refers to "different emergency periods in respect of different relevant enactments" of section 3(3)(a) which allows a Government order to specify an emergency period in respect of one or more than one relevant enactments and different emergency periods in respect of different relevant enactments; and substitute subparagraph (ii) with:

(ii) "an emergency period in respect of the provisions of the Principal Act and the Planning and Development (Housing) and Residential Tenancies Act 2016, and any instrument under the foregoing, so as to provide for a uniform and fair approach, with the exception of the potential to provide for different emergency periods to be specified in respect of enforcement matters under the foregoing, so as to ensure necessary enforcement is facilitated,

(iii) for all other relevant enactments listed in subsection (9) different emergency periods in respect of different relevant enactments.".

I must reject this amendment because it would remove a significant flexibility for the Government to be able to make orders in respect of different relevant enactments, as required, in order to address concerns of specific local authorities or the board that may arise as a result of the pandemic. I would have thought that it would make sense to have that flexibility and that there should not just be a blanket approach. We have seen how we have been able to manage with elements of Covid. A blanket or one-size-fits-all approach does not make sense and that is why this amendment would not help in any way, shape or form.

In the absence of section 3(3)(a)(ii), any emergency period order made by the Government under subsection (2) would have to apply to the entire "Principal Act and the Planning and Development (Housing) and Residential Tenancies Act 2016, and any instrument under the foregoing" excepting for enforcement matters, even if the impact of a surge in Covid-19 infections only impacted on certain enactments. This would have the effect of stalling processes that may be able to proceed, for example, the extension of duration periods for planning permissions, which might not be affected in the same manner as public participation periods, due to the fact that the construction of a development might be deemed to be an essential service, as the Government has done in the level 5 restrictions we have recently exited. We made sure that construction and ancillary services, including planning, have remained as essential services. One would be curious as to why Deputies would wish to hinder or stymie that and stall a process that does not need to be stalled. I am sure that is not the intention of either Deputy in tabling the amendment, but that would be the effect, in which case there would be no reason to delay or extend such extension of duration periods. In all likelihood, the provisions to be included in each order would have to be assessed, with respect to the principles and policies in section 3 on a case-by-case basis, depending on the potential constraints resulting from any future travel restrictions.

Amendment No. 11 is also jointly tabled by Deputies Cian O'Callaghan and Ó Broin. It seeks to delete subparagraphs (i) and (ii) of section 3(3)(b), which allow a Government order to specify:

(i) an emergency period in respect of one or more than one administrative area, and

(ii) different emergency periods in respect of different administrative areas.

This allows the Government, at my request, to make an order that applies to specific administrative areas, or indeed to the whole country, if so required. Again, I must reject this amendment, as it would remove a significant flexibility for the Government to be able to make orders in respect of different administrative areas, so as to address concerns of specific local authorities that may arise as a result of the pandemic.

In the absence of section 3(3)(b), any order made by the Government under subsection (2) of the Bill would have to apply to the entire country. That would not make sense in many instances, even if the impact of a surge in Covid-19 infections was only occurring in some limited localities. That is why we need that flexibility, or with respect to the operational capacity of specific local authorities. If it were Donegal, Carlow or Fingal that were affected, why would one want an order that would have to extend to all areas? I am sure that is not the intention, but that is the effect of the amendment, as it would inhibit and remove the flexibility that I, as Minister, and the Government will need. We hope never to have to use these provisions, but they are there should we see future surges. The deletion of this provision would also remove the ability of the Government to make different emergency orders in respect of different periods for different administrative areas. Again, that is not something I could agree to remove in any way, shape or form. This is an important part of the Bill and the Government needs these important powers. I hope we will never need to use those powers, but we certainly need to be prepared in this regard.

Amendment No. 12 is again jointly tabled by both Deputies.

It seeks to insert a new subsection (4) into section 3 to require the Government to consider additional matters in respect of orders made which specify emergency periods for certain administrative areas pursuant to subsections (3)(b)(i) and (ii). The additional matters to be included pertain to considerations to the public interest of the administrative area and others with respect to environmental decision making and public participation. Again, unfortunately, I cannot accept this amendment as the Bill contains sufficient provisions to cover what is intended by this proposal, noting that the purpose of an emergency order will be to extend an appropriate period - or a specified period or any other relevant statutory period for the period of the emergency order - thereby ensuring that the integrity of the planning system, especially its public participation elements and certain decision making and enforcement processes of the building control system, will not be compromised. Sections 3(4) and (5) already outline sufficient reasons and justifications for the making of the order by the Government in the public interest.

As already stated, section 3(4) specifically requires that before making an order under subsection (2), the Government must be satisfied that the making of such an order is in the public interest, having regard to the following factors: the nature and potential effect of Covid-19 on individuals, society and the State; the need to eliminate or reduce the threat to public health of Covid-19; the policies and objectives of the Government relating to the protection of the public from Covid-19; the need to mitigate the adverse economic effects resulting from the spread of Covid-19 and the measures adopted to prevent its spread; and the need to eliminate or reduce the impact of Covid-19, and the measures adopted to prevent its spread, on the effective performance of functions under those enactments. Section 3(5) requires that before making an order under subsection (2), the Government must be satisfied, in addition to the provisions in subsection (4), that the making of such an order is in the public interest, specifically having regard to:

(i) in the case of sections 4(4), 6 and 17(6) of the Building Control Act 1990 or any instrument thereunder, to— (I) ensure the effective operation of that Act, and

(II) protect the health, safety and welfare of occupants of, and visitors to, buildings and persons for the time within the curtilage or immediate vicinity of buildings, and (ii) in the case of any other relevant enactment, to ensure— (I) the effective operation of such enactment, and

(II) proper planning and sustainable development.

For these reasons, I am also opposing this amendment.

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