Pat Gallagher (Donegal South West, Fianna Fail)

It is necessary to first outline the general background to the section in order to set the context in which it has come about. The purpose of section 99 is to ensure that the legislation is not at any stage an impediment to the implementation of responses to situations of an emergency nature affecting the national interest. Such provision may be needed from time to time, for example, in situations such as those that arose in the foot and mouth disease crisis some years ago when statutory obligations to carry out certain monitoring or inspection functions may be contrary to the national interest in containing the spread of disease by minimising the instance of entry onto land.

It is envisaged that the provisions of section 99 would only be used in rare and exceptional circumstances which resulted in the Houses of the Oireachtas being sufficiently concerned to bring an order on this section into effect in the first instance. The procedures under the section are fully transparent and allow for maximum possible accountability via the Houses of the Oireachtas before an order is made. To this end, subsection (3) provides that a draft order must be laid before each House of the Oireachtas and that the order shall not be made until each House has passed a resolution to approve it. The process proposed, therefore, subjects every order to full, due democratic process before it is made.

On amendment No. 166, I am concerned that the addition of a specific reference to an emergency in section 99 may, in the absence of a definition of what constitutes an emergency, cause unnecessary difficulties with the application of the section. It is essential that sufficient flexibility be available to enable the Oireachtas, not the Minister, to respond as appropriate and necessary in all circumstances. Furthermore, if the word "emergency" proposed by Deputy Bannon was to be defined, the application of the section may be restricted and hampered subsequently by a dispute as to whether a particular incident came within the scope of the section.

On the other hand, in the absence of such a reference it will be a matter for each House of the Oireachtas to adjudicate on the merits of any particular situation giving rise to a draft order under this section. Each House will be fully aware on a case by case basis of the gravity of the situation leading to the submission by the Minister of a draft order for approval. It is unnecessary to confine the scope of their deliberations by the insertion of an additional wording proposed in amendment No. 166.

That being said, it is useful to set out the general context in which the powers in this section may be applied. Amendment No. 167, therefore, provides that the purposes for which an order may be made under section 90 are for the prevention of risk to public health and the protection of the environment. The amendment inserts an unambiguous objective into the section the fulfilment of which will, as occasion demands, give rise to its application.

It is envisaged that the necessity to apply this section will be decided on a case by case basis. There will be no question of looking for blanket approval and it will be subject to the approval of both Houses. The insertion of amendment No. 167 will guide the deliberations of the Oireachtas as to whether the content of an order is appropriate in a given circumstance. It is a necessary but sufficient addition to subsection (1) without the need for further provision limiting the circumstances in which the section may be applied. On the basis of what I have outlined, and in the light of amendment No. 167, I respectfully suggest to Senator Bannon that he might reconsider amendment No. 167 and his opposition to the section. The term "emergency" must be left vague because, if defined, it would limit the scope of the Bill's application, leaving the legislation open to challenge. The Oireachtas makes decisions on the basis of the Minister's recommendations as power ultimately rests with it. Power resting solely with the Minister will only happen in exceptional circumstances, such as the foot and mouth disease outbreak.