Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 5:

In page 6, to delete lines 9 to 16.

Amendment No. 5 seeks the deletion of section 3(b), which amends section 104 of the Planning and Development Act 2000 to allow the Minister to appoint additional ordinary members without placing a limitation on how many he may appoint, removing any existing limits on the proportion of the board that can be appointed by the Minister. Under the current legislation, there is a constraint. It was a constraint designed in the spirit of section 30 of the Act, recognising that section 30 does not sit alone but sets a mandate for the separation of powers and how planning should be separate from the Minister. In following through on section 30 and ensuring there is not undue influence by the Minister, the current legislation makes it clear that no more than one third of the ordinary members can be appointed by a Minister. This legislation removes that limit.

The phrase "power-grab" has been used. It is very clear in this regard because this would take us away from a situation where there is a constraint on the Minister's power to configure entirely the constitution of the board. Now, such limitations will be gone. It is a massive shift in power away from independent structures and away from civil society through the panel system and directly into the hands of the Minister. Under the proposed new rules, a future Minister could theoretically expand the board by whatever number of ordinary members and stack it with his or her own appointees. If a few of those members disagreed with the direction being taken by the board, or if dissent or concerns were raised around a particular category of development, the Minister could simply increase the board to ensure he or she had the numbers to win any vote or decision. While the current Minister may not have any intention of using the powers in such a way, we do not know what future Ministers may do. We are moving from a system that was carefully calibrated to try to limit the influence of a Minister. Ways around that seemed to be found at different times but the key point is it was designed to ensure separation and independence of the planning process from the Minister. This legislation seems designed to ensure the power of the Minister will be pre-eminent.

Amendment No. 6 seeks to insert a new subsection (2A) into section 104 which would provide that any orders to increase the membership of the board beyond 14 members would have to be approved by the Oireachtas. We have been told it is already within the power of the Minister to increase the number on the board, but under the current legislation, if the Minister increases it beyond 14 - or beyond nine, as it was - the Minister would have to bring that order to the Oireachtas for its approval. The capacity was there but there was a check and a balance on it. If the Minister wanted to go from nine to 12 because of capacity issues, because there was a huge volume or a backlog of cases, or whatever it might be, that power was there but it was subject to being brought to the Oireachtas, which is an appropriate check and balance and ensures scrutiny because we would know if the board were being increased. My amendment recognises and accepts the increase from nine members to 14 but stipulates that, when we go beyond 14, it should be brought to the Oireachtas for that oversight. For a board that has lost public confidence to the degree An Bord Pleanála has, we should not be removing checks and balances. This is yet another very small and reasonable check and balance that is being removed. Amendment No. 6 would reinsert that. Amendment No. 7 seeks the deletion of section 3(c). This relates to amendment No. 6 and requiring Oireachtas approval to increase the size of the board beyond its ordinary membership.

Amendment No. 12 seeks to delete the proposed provision removing the constraint on the proportion of appointments the Minister can make directly to the board and incentivises the Minister to move to a less discretionary and more transparent system of appointment. Amendment No. 12 would move away from that discretionary power of the Minister around appointments and would encourage the Minister to take a more transparent approach.

Amendment No. 13 seeks to insert a new paragraph (d) into section 104(4) of the Planning and Development Act, which would specify that before the Minister can appoint civil servants to the board, there must have been a public appointments process through the panel system provided for in section 106. This would have the effect of ensuring there is no situation where civil servants could be seen or perceived to have been handpicked by the Minister in a case where there had been no attempt to appoint additional members through an appropriate panel system. If the Minister is appointing civil servants because they say the gap cannot be filled, let us see that it cannot be filled. That allows for the Public Appointments Service to play its appropriate role and we would not have a situation where we simply have preferred candidates filling roles inappropriately.