Alice-Mary Higgins (Independent) | Oireachtas source

I thank the Acting Chairperson. I may have to change around the order of the amendments as I address them, so I will effectively begin from the end.

On amendment No. 17, I am concerned about the provision as it is worded at the moment. I hope that concern is inadvertent but it could have an unforeseen consequence. The provision as it is currently worded would mean that within the scope of this Bill, the definition of State authorities would be subject to subsection (8) of section 156, in that the definition of State authorities would include subcontractors. I am therefore concerned about subcontractors as State authorities. It seems unusual to be stretching the definition where it creates a kind of muddying of the waters with regard to responsibility and what is and what is not a State authority. It is different to be doing work on behalf of a State authority and being an actual State authority under definition within a Bill. I am hoping that that is an inadvertent mistake that can, perhaps even at this late stage, be addressed.

On amendments Nos. 22 to 25, inclusive, these are very much about increasing the accountability and the participation which are core.Amendment No. 23 seeks to insert a new subsection into section 4 to specify a number of areas where regulations arise. It specifies that resolutions would be required of both Houses of the Oireachtas in order to approve the making of regulations. The Bill requires a vast number of regulations, which contain extraordinary powers that are of significance, given there are so many areas where the processes that now stand are being changed. New regulations are being created in multiple areas and previous regulations will be expiring. New regulations will apply to local developments and to the manner in which the planning authorities will operate at all levels. The Bill currently requires a rewriting of most of the planning regulations that apply in the State. Those rewritten regulations will simply be made and laid unless they are annulled. There will be no opportunity for the Oireachtas to offer input or insight. What tends to happen in such situations is that we get a poorer quality of regulation as we saw, for example, in respect of past regulation of Airbnb. In that case, a statutory instrument had to deactivate its own provisions after they had been commenced. If that statutory instrument had benefited from Oireachtas scrutiny and engagement, it may well have been a better piece of law.

Amendment No. 24 seeks the deletion of section 4(6), which currently provides, "If, in any respect, any difficulty arises in bringing any provision of this Act into operation ... the Minister may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty". That is an extraordinarily wide power. The Minister can act if any aspect of this Bill is not going according to plan. Because there are enormous flaws throughout this Bill, I suspect many areas of it will not go according to plan. In such a situation, the Minister is simply allowed to create regulations as he or she wishes. The section refers to anything that appears "necessary or expedient". It is not even restricted to regulations that may be necessary where an urgent issue arises. The section would apply wherever it might be quicker to act through regulations. Much of this Bill is characterised by the myth that it will create faster planning when, in fact, it will create a longer, more expensive and more contentious planning process. When we fail to do things right and take poor shortcuts, as has happened in the past, it leads to judicial review. That happens when there is poor decision-making and too little time is taken to consider the relevant factors in the first place. The power for the Minister in the provision and the impetus of expediency that is driving everything are too wide.

Amendment No. 25 seeks to insert a new subsection into section 4 to require the Minister to establish a list of prescribed bodies with which he or she would consult about the making of regulations under the Act that are relevant to his or her remit, function and jurisdiction. The amendment suggests that there are bodies which can bring a useful expertise to the Minister when he or she is making regulations. Such regulations have significant consequences. Each line in each regulation can make something happen or not. Regulations affect how something happens. They have incredible impact on the shared spaces of our communities, on how we live and on what it feels like to live in Ireland's cities, towns and rural areas. These are significant regulations and it would be appropriate for the Minister to engage with relevant expert bodies when making them. My amendment suggests that those expert bodies should include organisations involved in environmental protection and independent organisations to ensure the Minister is not being advised solely by State bodies or agencies that are ultimately answering to him or her and, therefore, may at times lack the freedom and independence to offer a fully critical perspective.

Turning to the rest of the group of amendments, I greatly regret the decision made in the Seanad, and not by the Minister of State, to rule out of order, on the basis of cost, an amendment providing for a report. We must examine this idea. Officials must examine an important issue which they should be examining anyway, namely, compliance with the Aarhus Convention.Is it the case that having officials examine the question of whether this Bill is actually legal and the paper involved in printing a report on the matter create too much of a cost for the State? This is a serious question because we are seeing it contributes to what has been a massive curtailment of democratic engagement and rights under the Aarhus Convention, both within the Bill and in the manner in which it has been put forward and moved through the Oireachtas. It is essential that there be a re-examination of compliance with the Aarhus Convention because all of the signs clearly point to the Bill being non-compliant. Our recommendation to have a report was useful in that regard. The very fact of not even allowing a report on compliance looks very poor for Ireland.

Amendment No. 22 proposes to insert a new subsection into section 4 requiring that the Minister "shall facilitate effective public participation at an appropriate stage, and while options are still open, during the preparation of regulations which may have a significant effect on the environment". Again, this was reflecting the obligations under Article 8 of the Aarhus Convention, namely, the idea that when there is decision-making with significant environmental impact, the public should have a say and be heard on those matters. Amendment No. 22 suggests that but unfortunately many of the other provisions throughout the Bill not only fail to robustly seek to strengthen Ireland's performance under the Aarhus Convention but, in fact, are directly at odds with Ireland's compliance. I will address a number of those areas over the course of the debate. It is important to begin with the Minister's amendment No. 3, which is in this grouping.

Amendment No. 3, regarding commencement dates, seems to be consequent from the serious concerns that arose on 10 June when Ireland was sent a report from the Aarhus Convention compliance committee. It addressed - among many other matters - and explicitly reviewed, at the request of the Government, Chapter 5, Part 4 of this Bill because Ireland had put that in front of the committee. The Government asked the committee to look at it, indicating that it intended to rely on Chapter 5, Part 4 to resolve the outstanding issues where Ireland had been found - not "considered" but "found" - to be non-compliant with the Aarhus Convention committee under section 42 of the 2000 Act on the extension of duration of planning permissions. The Aarhus Convention compliance committee looked at that question. It previously found that the test the Government uses to decide whether public participation was required was inadequate. It found that section 42 of the 2000 Act had problems in that regard.

The Government then wrote this new Chapter 5, Part 4. I will read a direct quote from the compliance committee from June. It is important to emphasise this. I am sorry to put so much on the record but it is important to do so because we have had told multiple times, including by the Minister of State in previous debates in the Seanad, that the Bill was unquestionably Aarhus-compliant. That was the phrase used by the senior Minister and a similar statement was made by the Minister of State in this Chamber. However, as we highlighted in June, the Aarhus Convention compliance committee stated, in paragraph 47 of its progress review, that "the Committee does not consider that, if enacted in their current form, proposed sections 133 and 135 (2) (b) and (d) of the Planning and Development Bill 2023 would fulfil the requirements of paragraph 4 (a) (i) of decision VII/8i."They have said they will not fulfil the requirements for compliance with the principles of public participation under the Aarhus Convention. They have been explicitly clear on it. The Aarhus committee has not examined the rest of the Bill. It is not that it has said the rest of the Bill is compliant. It has not been examined. The Government thought this part was so good that it put it out front and centre. It was examined and failed a compliance test. That should be a signal that there are problems with Aarhus throughout the Bill. That is why this should be addressed and engaged with. We have had no satisfactory response. The Bill has come back to this House without clarification as to whether the Minister misled the House or was simply mistaken, whether he was unaware of the report. The Minister of State said he was satisfied the Bill is compliant with the Aarhus Convention. He changed that position later to say he would be addressing the issues, but the issues have not been addressed. We have it back here before us again.

I will highlight one of the issues specifically raised by Government amendment No. 3. It addresses commencement dates for certain sections of the Bill. This relates to judicial review, another significant problem area in this Bill. The Bill creates problems in terms of standing, grounds, who can take the cases, how much it is going to cost them, and the constraints on time that are placed on them. It breaches all of those principles of access to justice which are core to the Aarhus Convention. There is a suggestion that sections 50A and 50B from the 2000 Act may remain in place until new regulations under Chapter 1 are commenced. There are problems of compliance with Aarhus associated with 50A and 50B but there are greater problems with the new chapter 1 that is being proposed. As the Bill is set out at the moment, as soon as Chapter 1 commences, 50A and 50B will cease to operate. This is in respect of the commencement clause so it really does relate to the Minister's proposal on commencements. The new rules on some areas are in Chapter 1 of Part 9, when that is commenced. However, the new rules on cost are in Chapter 2 of Part 9. There is a potential lacuna whereby, if Chapter 1 is commenced, the existing rules on costs will cease to operate but if Chapter 2 has not been commenced at the same time, there will be no rules on cost. Inadvertent or intentional, either way this is creating a potential lacuna where there will be no rules in place in respect of cost. There is a danger that this could create an environment in which nobody can confidently take cases because they have no idea whether they will have their costs returned to them if they are successful. We will come to it later in detail. There are serious problems with the proposed new Chapter 1 and Chapter 2 in terms of access to justice, standing, cost, and the breadth of remit.There is also a major problem in that a lacuna could be created. Regarding Government amendment No. 3 in regard to commencement, how can we be assured that the kind of situation I have just outlined, whereby provisions of the old Bill will stop while new provisions have not been commenced, will not arise and will not create difficulties, whether inadvertent or intentional, regarding the taking of a judicial review and clarity in regard to costs?

All of this points to the fact that the failure to properly address the Aarhus Convention, and the failure to address the issues I had proposed to be addressed in the report that I requested under my amendment to amendment No. 3, are not going to make things simpler but are going to make things far more problematic. We are effectively going to have a situation where the Bill is not consistent with international law or the provisions of the Aarhus Convention and we are also going to create confusion in many areas, particularly around judicial review. Has there been an estimate of the cost to the State in this regard? It seems to me that there will potentially be huge costs if people find they effectively have to take cases to the higher courts, potentially including the European Court of Justice, because the decision-making process has not been got right in the first place.

People do not go to court for fun. Nobody wants to spend their time, money or energy taking cases. We need to make good decisions that reflect the wisdom, insight and input of local government and local government representatives, as Senator Boyhan outlined, and reflect proper public participation where the public have had a say, as well as reflecting international law and our obligations under it. If those factors are taken into account at the beginning, we will make better decisions that do not end up in the courts. However, what we have here is a recipe for decisions ending up in the courts and in long and elaborate processes. That will not be about individuals taking cases. It will be entirely about the Government making poor decisions and declining to address the well-signalled, notified and undeniable issues of non-compliance with the Aarhus Convention. As I said, there is a direct statement of non-compliance in regard to some sections of the Bill and the very clear flags that have been raised concerning other areas, like judicial review.

I ask the Minister of State to address the question of how the Government proposes to address the Aarhus Convention compliance issue and also, specifically, the gaps and problems that arise on the question of commencement. Right now, whether it is intentional or inadvertent, it is wrong that we would dissolve provisions in respect of cost prior to an obligation to have introduced this. Of course, the fact that we will introduce it is not the same. We make a point in the Bill of saying that Chapter 1, Part 9, must have been introduced before the other parts dissolve. Why are we not doing the same for Chapter 2?