Thursday, 13 April 2017
Heritage Bill 2016: Report and Final Stages
Before we commence I wish to remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded, except Government amendments.
This was originally in the Schedule to the Bill but is now brought up front in a new section 3 following drafting advice from the Office of Parliamentary Counsel. I have tabled another amendment to delete the Schedule and section 5 of the Bill which refers to the Schedule. In respect of other items in the Schedule, I advise the House that there is no need for a new definition of the Minister as the functions were transferred from the Minister for Communications to the Minister for Arts, Heritage and the Gaeltacht by virtue of SI 332 of 1996. Similarly, there is no need to delete the definition of commissioners or to substitute Waterways Ireland for the commissioners as the functions vested in the commissioners under the Canals Act 1986 transferred to the Minister by virtue of SI 332 of 1996 and transferred to Waterways Ireland by virtue of the British-Irish Agreement Act 1999.
Basically, there was a Schedule at the end of the Bill but we are now moving part of the information to a new part. We are getting rid of it and moving some of it to another part.
I move amendment No. 2:
In page 4, line 9, after “designate” to insert “, without unnecessarily impeding navigation,”
The canals were built more than 200 years ago and their principal purpose was navigation. It is important to maintain the navigability of the canals as far as possible. We discussed this on Committee Stage and I changed the wording slightly in response to the debate. Instead of just saying baldly "without impeding navigation", which might restrict the authorities a little, I put "without unnecessarily impeding navigation". I think that is reasonable. One has to maintain the canals open for navigation. However, if there is a necessity or it is required for maintenance or safety purposes or whatever good reason, they should be able to take this action. The inclusion of the words "without unnecessarily impeding navigation" should make it acceptable to the Government. I hope the Minister will accept the amendment.
I second the amendment and reiterate what Senator Norris stated. I presume we are speaking on amendment No. 2, that is, on not impeding navigation for users of the waterways. I am interested to hear what the Minister has to say.
I understand what the Senators are trying to achieve. The only problem is that it will be impractical to implement. The amendment would restrict Waterways Ireland's ability to provide new infrastructure such as moorings and weirs along the canals. For example, water levels need to be lowered due to flooding and other circumstances which would impede navigation. Waterways Ireland, through its marine notices, regularly closes navigation to allow special events to take place. This system has been in place for many years, works well and allows all navigation users' interests to be represented and accommodated. It has never caused any difficulty. I know what the Senators are trying to achieve but it would be impossible to implement because it is very hard to say what "unnecessarily" means. It is very hard to define. If the Senators would accept that, I would appreciate it.
I will help the Minister. "Unnecessarily" can be defined as something that is not required by the process. Of course one may have to lower the water levels in the canals from time to time and of course there may be special events, but these things necessitate the closing of the canals to navigation. Therefore, it is very simple. May I just say that the two examples provided by the Minister are clearly covered by this amendment. I, therefore, do not understand the Minister's difficulty. There may be some other reason that the Minister has not put on the record, but I see no reason. The amendment states "unnecessarily". In other words, whether one can perform the function one wants to perform without closing the canal relates to the whole concept of it being necessary or unnecessary. If one requires to close the canal in order to perform certain actions, it is necessary. If it is not required, it is unnecessary. It is really quite simple.
It may sound quite simple but what the Senator thinks is necessary and I think is necessary could be two different things. To put that ambiguity into the legislation could cause all sorts of problems. Some people might think it unnecessary and others might think it necessary to do something. Then we run into a lot of trouble. It is a subjective term and someone would have to adjudicate whether it was necessary or unnecessary. It would make it very difficult. At the end of the day, we are trying to allow the canals to be policed so that they can be used for the enjoyment of everyone.
I move amendment No. 7:
In page 4, line 31, after “canals” to insert “subject to existing maximum dimensional criteria”.
I may be a little slow on this because there is quite a large grouping. To address amendment No. 7 first, the canals were built more than 200 years ago and maximum dimensional criteria have, in practice, been in existence for that time.They sustain the position of traditional canal boats and it is for that reason this should be maintained and we should support the traditional heritage boats, which were actually what the canals were built for. This is why I suggest maximum dimensions. I see the Minister nodding. I am not sure whether that means she agrees with me, but she is in a very good mood today.
Yes, like myself.
It will be a fairly restricted debate because of the constrictions on the number of times people can come in. This is a reasonable amendment to make, that they should be subject to the maximum dimensional criteria.
Amendment No. 8 is about the regulation of the canals, particularly with regard to closing. To ensure this is not done on an ad hocbasis it proposes to insert "in the event of emergencies within agreed procedures on a temporary basis". In other words, to limit the number of times these procedures can take place.
Amendment No. 10 is an amplification of what is in the Bill at present. The Bill mentions boats on the canals or other canal properties and this should be more targeted. The amendment proposes inserting "the canals or other canal property by all users. Any permits or licences issued should be set at a cost appropriate to the intended use and linked to the rate of inflation in the economy". In other words, it is the intention of the Minister and the Department to make the canals as accessible as possible to the general public. For this reason, I think it appropriate that permits and licenses be set at a rate that will have the effect of encouraging people to use these amenities. This is an argument that is very defensible. I do not see any reason against it.
I will leave Senator Ruane to speak on her amendment, but I may comment on it when I come back, because it would be impertinent of me to take up her amendment.
Amendment No. 12 is a continuation of the same section, and it proposes to insert "within agreed procedures on a temporary basis, taking into account with due diligence the safety of boats that may be on that stretch of the canal that could be effected by the alteration of water levels, that may need to complete the journey underway and notifying owners of same". This is a question of safety. If the water levels are being altered, the safety and welfare of boats that are already on that stretch of the canal need to be taken into account. In other words, it is to try to prevent a situation being created through lack of diligence whereby water levels could be altered and damage caused to boats. We need to ensure this does not happen. This is why I propose this amendment.
Amendment No. 13 is a Government amendment. Amendment No. 14 again is a question of safety. It proposes putting into the text of the Bill the whole question of "safety, security and access by the emergency services". We all accept that access by life-saving people, fire brigades and ambulances should not and must not be impeded.
Amendment No. 15 proposes to insert "prescribed for and detailed in the bye-laws" after "activities" in page 5, line 12. In other words, we want everything done by the book. We need to have provision for it made in the by-laws. The same argument goes for amendment No. 16. Amendment No. 17 is exactly the same, and then we come to Amendment No. 18, which proposes to insert "and only issued where there is failure to comply with warning notices as defined within the bye-laws". The question of notices is interesting, and I will come back to it in my reply because I have a note about it but I do not want to hold up the Seanad while I am rooting around looking for it.
Yes, I will. I have it. The Minister is of the view these amendments are unnecessary. However, the Inland Waterways Association of Ireland, IWAI, can provide evidence that in recent times marine notices are occasionally issued after closures have taken effect. There is not much point in sending out a notice stating something will be done when the thing has already been done. This is the actual historical fact. In the past, marine notices have been sent out after a closure has taken place. Many notices are occasionally issued after closures have taken effect and works commenced. There have also been occasions where water level management has not taken into consideration the needs of boat owners. This is a serious point. Alterations, notices and all the rest need to be given to people with boats on the water so they can then take the necessary action to protect their boats from damage, either by moving them to a different location on the canal or doing whatever is necessary. It would risk serious damage to vessels if levels drop from underneath moored boats, grounding the boats, putting pressure on mooring lines and risking boats taking on water and sinking. At a meeting between the IWAI and Waterways Ireland management, Waterways Ireland assured the IWAI that procedures would be put in place to ensure situations such as that which I described would not happen again. However, the facts demonstrate, and I have written evidence to this effect, that the situation has occurred again since the meeting took place, and I will give the House the specific locations and dates. It happened in Lowtown on the Grand Canal in late October 2016, and in Robertstown on the Grand Canal in March 2017. It actually is a real situation on the ground that has happened. This could be cured by my amendment so I urge the Minister to take account of it.
I second the amendment.
I will not go into too much detail on all the amendments, as Senator Norris and others will cover them. I will speak to amendments Nos. 10 and 11 specifically. As we all know, the canal waterways are not just for the enjoyment of tourists. For communities of people the canal is their home. In this context, with regard to our housing crisis, we must ensure any laws impacting on canal residents are done in such a way that the crisis is not exacerbated. At no point during the hours and hours of debate in the Chamber on the Bill has the Minister referenced in any way our concerns about the potentially huge increase in costs for boat users on our canals. I wish to spend a little time looking at this today.Many canal users have contacted me and come to my office. Some of them are students. One of them is training to be a teacher and has another two years to complete. He is living in great fear that the minimal amount of money it costs to live on the canal at present will increase dramatically because it is not linked to inflation. They are paying a small amount at present but they are concerned that the cost of a permit will increase to a few thousand euro a year.
Amendment No. 10 is reasonable and sensible. It simply seeks to ensure that the cost of permits and licences is set at a level that correlates to the intended use and to ensure that there is some linkage with the general level of prices in the economy. It is not a radical amendment. It would simply ensure that the canal residents are protected from prohibitive increases in costs.
Is the Minister willing to accept the amendment? If she feels she cannot accept it, amendment No. 11 is a compromise and also provides for some joined-up thinking in respect of the Department of Housing, Planning, Community and Local Government and rent pressure zones. As homes on canals might also be homes in rent pressure zones that legislation should link up so that it applies to houseboat owners as well. Amendment No. 11 deals with increases in costs for permits and licences. Will the Minister at least accept that canal residents moored in designated rent pressure zones are living in areas where there is huge pressure in the local rental market and that people who live on the water, as opposed to the land, deserve protection from cost increases as much as others? Is she willing to link the canals in rent pressure zones with the current rent pressure zone limits set in the rental market?
I will speak first on amendment No. 7. Heritage boats can travel on the canal. In fact, any boat that fits on the canal can travel on the canal. There is no need for this additional wording. The maximum dimension criteria are already in section 14 of the 1988 by-laws so it is not necessary to qualify this subsection further. The canals have not changed in size so the 1988 by-law provisions are adequate. The size is determined by the width of the lock chamber and the depth of the canal. It is any boat that can fit on the canal. It would not make sense to insert this provision because we cannot legislate to put a boat on the canal that will not fit. The amendment states "subject to existing maximum dimensional criteria". If a boat was bigger than the canal, it could not go on it anyway.
I am saying we cannot legislate to put a boat on the canal. If it is too big it will not fit. The amendment states "subject to existing maximum dimensional criteria", so if a boat is too big and will not fit on the canal it could mean that we are stating in legislation that it should go on the canal.
Amendment No. 8 limits the closing of navigations to emergency situations and does not take account of other reasons a navigation can be closed, such as land drainage, flood management and control, where there is a loss of water, where something sinks, the need to protect men working and so forth.
Waterways Ireland regularly issues marine notices advising of the closing of a navigation. However, it is not practicable or workable to give due notice before closure of the navigations in an emergency situation. I cannot accept the amendment.
Amendment No. 10 proposes that licences and permits would have to be issued to everybody who is using the canal. Everybody who uses the canal is not a boat owner. There are also walkers and cyclists, so they would have to have a licence to use the canal property. I am aware of what the Senator is trying to achieve in the amendment, but the amendment would not achieve what she seeks. Waterways Ireland and its predecessors traditionally have only charged boat owners on the canals. This seeks to widen the charge to all users which would not be practical, for example, with regard to towpath users walking or cycling and whose use and the benefit derived are recognised and supported by the local authorities and Waterways Ireland which are working together to create these off-road amenities. The amendment is over-restrictive.
I know what Senator Ruane is seeking in amendment No. 11 but the Residential Tenancies Acts 2004 to 2016 do not apply to Waterways Ireland. Section 7(1)(p) of the Heritage Bill already provides for the power to make by-laws for the charging and fixing of fees, tolls and charges in respect of the use of the canals by boats, including the use of locks and moorings on the canals and the taking of water from the canals. The Department's legal advice is that this provision would also include the powers to charge a fee for the issuing of such licences, so there is no need for the additional sentence at section 7(1)(e).
With regard to linking the costs to the rate of inflation in the economy, the canals are a public asset. In setting costs for boat users of the canals, such as permits for mooring, Waterways Ireland would set the costs having regard to the fees paid by boat owners for similar facilities on other navigations provided by the private sector. Costs and fees linked to the rate of inflation could be significantly higher than the modest increases currently being proposed by Waterways Ireland. The permits or licences issued by Waterways Ireland for boats and residential boats or houseboats are not tenancies. They are permissions to moor a boat, which could be a houseboat, and usually the boat is owned by the licensee. Waterways Ireland does not charge rent for moorings. A licence fee or toll is charged. As I said earlier, the Residential Tenancies Acts do not apply to Waterways Ireland. If one applied the inflation rate or the consumer price index since 1988 to the licence fees they would be approximately €300 at present, rather than the modest increase being proposed by Waterways Ireland in the revised canal by-laws of €4, bringing it from €126 to €130. If we had gone with the consumer price index it would have been much higher. That is the reason it is not included.
With regard to amendment No. 12, it is the Department's opinion that there is not need to put in primary legislation what will be in the by-laws. All of this detail will be in the by-laws and it is more appropriate to include it there. For that reason it is over-prescriptive to put it in the legislation. The by-laws will be brought before the Houses of the Oireachtas.This sort of detail would be better served in the by-laws and not in primary legislation. Amendment No. 13 is a Government amendment to delete the "Minister for Communications, Energy and Natural Resources" and insert "Minister for Communications, Climate Action and Environment". The proposed amendment No. 14 would narrow the power to make by-laws in this area. Safety, security and access by the emergency services are considerations in everything Waterways Ireland does, so Waterways Ireland has to take account of that anyway. It is best not to put that in. Amendment No. 15 is unnecessary as it is a repetition of section 7(1), which is about the powers of Waterways Ireland to make by-laws. Amendment No. 16 is a repetition of section 7(1) and is unnecessary. Amendment No. 17 is a repetition of section 7(1).
Amendment No. 18 misrepresents the basis underlying the issue of a fixed payment notice. The fixed payment notice is issued in lieu of prosecution for an alleged contravention of the by-laws, not for failure to comply with warning notices. The form of the notice will be specified in by-laws. The notice will specify the alleged offence and by-law contravened. The by-laws will be subject to 90 days of consultation. That is something that I took on board from the recommendations in this House. The by-laws will be laid before the Houses of the Oireachtas, which will have 21 days to annul them if they are not happy about them. It would be better if those issues that I talked about there could be put into the by-laws. They will be consulted upon and the Senators will have an opportunity to have their views known on them.
I am a co-signer of amendment No. 11 and wanted to express that the substantive issue in what we are looking at here has not really been addressed by the Minister. I accept some of the points that she has made on the cost of inflation, although I would note that we say "with reference to" and "taking into account". We do not suggest a prescriptive matching with the rate of inflation. I also note the spirit of what we are doing here follows a very intensive debate in this House on the Planning and Development (Housing) and Residential Tenancies Act 2016. Severe concern was expressed right across the House, including by the Minister's own colleague, the Minister, Deputy Simon Coveney, about the great pressures in areas that have been identified as areas of rental pressure. I would like if the Minister would indicate that she is understanding of the spirit of it. In effect, as I know from our meetings with departmental officials, there was a concern that the best market rates available could become a determinant for moorings when looking at the areas of canals.
We have a community of dwellers. It is a neighbourhood very close to us here, in Grand Canal Dock. If Grand Canal Dock were to be treated simply as a commercial proposition, with the aim of maximising the return, I think we would see a displacement of a number of residents who live on the canals and have their homes there. We would see a further lack of diversification within the area. We are supposedly committed to a social mix within our neighbourhoods. There is a real concern. We have not yet had any assurances that there will be any break put on the costs that may be attached to those who, for example, would seek to moor in an area like Grand Canal Dock. We have a real concern that we would see a further addition to the high levels of displacement, rental insecurity and persons who may become homeless unless some kind of measure is put in place to manage that issue. I note that similar issues will arise in other rental pressure zones, for example in Galway.
I ask the Minister to address the spirit of this point because it will have to come up in the Dáil. We need to know where the cap and measure are for these neighbourhoods and the people who are living and resident in these areas. Not everyone is recreational. We have people who are resident on canal boats. I do not know if my colleague who also proposed wishes to speak.
Waterways Ireland has no plans to dramatically increase the costs of licences or permits. Its remit is to enhance this amenity for everyone and for public use. To be clear again, the by-laws will go out for consultation, which will include the fees, and will be laid before the Houses of the Oireachtas. There will be an opportunity to voice concerns at that stage. I understand the spirit in which the Senators are putting forward the amendment.
That particular amendment is a cause of a concern to the Inland Waterways Association of Ireland, in particular the increased fees. The fees have not been increased since 1986, as I understand it. It would be expected that those fees would increase with new investment and development of the canal network. The spirit of this amendment is certainly not to increase the fees, taking the rate of inflation from 1986 to 2017 into account. It is to ensure that the fees do not increase any further than that. There is a great fear there. It is a fear that is not underpinned in the legislation, that the fees would be drastically increased by Waterways Ireland. No one knows what the intention of Waterways Ireland will be. The lack of consultation by Waterways Ireland with the users on the canal network, including the Inland Waterways Association of Ireland, which did not hear about this legislation until BirdWatch Ireland informed them of it-----
I know that we differ on that. I can assure the Minister that Waterways Ireland did not want to hear anything that would question its authority as a North-South body. If it is not willing to listen to us as Members of the Oireachtas within the confines of Leinster House, then I would hasten to add that there is little chance that it will listen to ordinary users or to people who are representative of the Inland Waterways Association of Ireland. There are concerns and there has to be a clear remit given to Waterways Ireland that it cannot drastically increase these costs. I know that the Minister mentioned an initial increase from €126 to €130, but that is not in the Bill. There may be some indication from Waterways Ireland that that is what it is about to do, but it is not underpinned in the legislation, nor should it be underpinned in the legislation. Consultation is required and I very much welcome that. If there are to be increased by-laws, there should be consultation and that should form part of the 90-days consultation. I presume that that is the case and any increase in fees will form part of this new 90-day consultation. That is to be welcomed.
There has to be a bit of leeway here. It cannot be written in the legislation, but Waterways Ireland, as a North-South body, which receives substantial funding, in the region of 80% from the Irish State and 20% from the Northern exchequer, has to listen to the users here. The taxpayer is funding its activities. It has to listen. It has not done that up until now. It certainly has not done so in the Barrow network or in other areas. As I understand it, it is undertaking an investment in the region of €16 million to develop towpaths without any analysis of the impact on flooding or economic analysis of the benefits or otherwise of the project. There are questions to be asked. I posed some of these questions at the briefing in Leinster House but there were no answers to very simple questions. If €7 million is being spent to develop a towpath along the River Barrow, it may or may not have implications for flooding. A senior engineer working for Kildare County Council said it would have major implications.Despite this, no study or analysis of the flooding implications was carried out on the project.
Consultation is required and Waterways Ireland, which has done some excellent work, must listen to ordinary stakeholders. If it had done so, I would not have to raise concerns because the amendments are the result of grassroots concerns. The extensive engagement between departmental officials and Waterways Ireland in recent weeks and months must continue. If all else fails and the North-South body is unwilling to listen, the stakeholders need a pathway into the Department through which they can raise concerns.
Some of the matters raised by the Senator regarding the River Barrow are subject to the planning process and a matter for the planning authorities. The matter will, therefore, have to take its course.
Many Members indicated to me that they found the briefing provided by Waterways Ireland very worthwhile and had learned a great deal from it. I ask Senators to raise any concerns they may have with me and my officials and we will address them. I was able to arrange a briefing for them, for example, when they sought one.
This is enabling legislation to allow the making of by-laws. Some of the issues causing concern can be included in the by-laws, which is the appropriate forum for addressing them.
Waterways Ireland does a great deal of collaborative work with local authorities. I visited Moate, County Westmeath, this morning to launch the town and village enhancement programme, under which €20 million will be provided for investment in towns and villages in the next 15 months. Speaking to members of the local authority, they complimented Waterways Ireland on the way it had worked with them in developing blueways and greenways along the route of the Royal Canal. This was an unsolicited compliment as I had not mentioned Waterways Ireland. From my experience of working with Monaghan County Council, which works with Waterways Ireland on collaborative projects along the route of the Ulster Canal, the agency is frequently complimented on the collaborative approach it takes to delivering projects along the canal route for the benefit of the wider public. These projects are good for attracting tourists to areas that do not normally receive many visitors. Waterways Ireland has a good record and it is appropriate that I defend the organisation. I often hear it complimented on the good work it does.
On amendment No. 12, the Minister stated these matters will all be addressed in by-laws. I am glad the report of the proceedings will show that she made that statement because it will enable us to hold her to it later. However, I remind her of a principle in philosophical logic known as Occam's razor, which prohibits the hypothetical discussion of the non-existent. Given that the by-laws do not yet exist, any discussion of them is hypothetical. In this case, Occam's razor rules out the Minister's argument completely because, as I stated, one cannot discuss the hypothetical existence of the non-existent.
With regard to amendment No. 14, the Minister stated Waterways Ireland would take these matters into account. This is a highly generalised phrase which does not mean the matter should not be addressed in the legislation. It is very important that safety, security and access by emergency services are provided for in the main Bill, rather than being left to the goodwill of Waterways Ireland. I ask the Minister to reconsider her position on this very important amendment because I intend to press it. The issue of safety, access for the emergency services and so on should not be left to the goodwill of Waterways Ireland. While nobody questions the agency's goodwill, and I am glad compliments have been paid to it, I also strongly support Senator Ó Domhnaill's comments, particularly on the River Barrow pathway and the use of inappropriate materials. I do not believe planning permission was sought for this project, although retrospective planning permission may be sought. It is not good practice, particularly for a semi-State body, to rush in, wallop matters through and subsequently seek planning permission.
I hope the Minister will reconsider, even if she regards the amendment as somewhat redundant in the sense that it is already provided for. By saying that, she ceded the principle that access for the emergency services and so forth should be taken into account. It is no big deal for her to accept the amendment because, according to her, it will not affect practice. It means, however, that something that is so fundamental to the use of the canals as access by the fire services, ambulances, rescue services and so on should be guaranteed. That is crucial to the proper and safe use of the waterways. It should be provided for in the main Bill, rather than being left to the goodwill of Waterways Ireland, which I do not doubt. I hope the Minister will give way on the amendment because there is no contraindication and it is not causing a problem. She stated the amendment was redundant because Waterways Ireland already does that for which it provides but Waterways Ireland is not required to do so in legislation.
I assure the Senator that Waterways Ireland is obliged to have regard to safety, security and access by the emergency services. My advice is that the amendment would narrow the ability to make by-laws in this area. While I agree in principle with what the Senator seeks to achieve, Waterways Ireland must do this in any case and take account of-----
I move amendment No. 11:
In page 4, line 36, to delete “boats on the canals or other canal property” and substitute the following:
“the canals or other canal properties by all users. Any permits and licences issued should be set at a cost appropriate to the intended use and taking into account the rate of inflation in the economy. In the case of residential boats moored in designated rent pressure zones, increases in the cost of permits and licences should only be permitted in accordance with section 19 of the Residential Tenancies Acts 2004 to 2016”.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Daly, Aidan Davitt, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Billy Lawless, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly.
Gerard Craughwell, Maire Devine, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Gerald Nash, David Norris, Brian Ó Domhnaill, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Grace O'Sullivan, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Paul Daly, Aidan Davitt, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Billy Lawless, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly.
Senator Craughwell and other Senators raised this matter with me during the Committee Stage debate on 29 March. I agreed in principle to accept the amendment regarding communication with local authorities and to introduce an amendment on Report Stage. This is provided for in section 2(a)(ii). To incorporate the amendment into section 2(a) there is the substitution of the earlier section 2(a). The content of the provision remains the same - it is merely reformatted.
The purpose of amendment No. 20 is to change and extend the period of consultation for the making of by-laws to 90 days to take account of concerns expressed by many Seanad Members about the insufficiency of the consultation period. This amendment will enable objections to draft by-laws to be submitted for up to 90 days from the date of the publication of notice of the proposal to make by-laws.
Amendment No. 21 is related to the consultation period for the making of by-laws.Amendment No. 22, as stated previously, relates to the consultation period for the making of by-laws. It provides that if any person submits an objection during the 90-day period, Waterways Ireland shall consider the objection. Amendment No. 23, as stated previously, relates to the consultation period for the making of by-laws. This amendment provides that the by-laws can be made after the expiry of the 90 days. The purpose of amendment No. 24 is to delete the title “Minister for Arts, Heritage and the Gaeltacht” and replace it with “Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs”.
Shall I speak to amendment No. 25 now or later?
Regarding paragraph 2, the Bill already provides for the publication of the canal by-laws on its website. This amendment is unnecessary.
On paragraph 3, this is unnecessary because the by-laws are published online. This is a procedural issue and is not for primary legislation. If an authorised officer tells a person that he or she is breaking a by-law the officer will specify which one, and the person can look it up. The officer will say which by-law is being broken so it should not be necessary to physically show the person the piece of paper with the by-law on it.
Gardaí are not obliged to show anyone the Statute Book when they tell people they have broken the law and the same principle applies here. What this officer is trying to do is police the waterways for everyone's enjoyment and make sure that people do not break the laws. It is not fair to ask them to produce the piece of law. Once they have quoted the relevant by-law, that should be sufficient.
I thank the Minister for accepting the four amendments in the names of myself and Senator Ó Domhnaill. I am glad she has done so. It is a good day's work and shows the engagement and involvement of the Seanad.
The Government's amendment No. 19 by and large reflects the spirit of our amendment. The Minister says amendment No. 25 is redundant because the notice is already published. That is not actually the case until the Government's amendment is passed. I get the feeling that the Government was pushed to an extent by the existence of our amendment No. 25 and it is for that reason that it is publishing the notice. That is very welcome because that shows a certain degree of collegiality between the Minister and Seanad Éireann.
However, amendment No. 25(iii) now reads to: "provide to authorised officers for presentation on request for reference purposes a copy, either hard copy or copy by electronic transmission by smart phone, iPad, etc., of the bye laws in the event of a bye law issue being raised by the authorised officer." This is a change from our proposal on Committee Stage because then the Minister said that the authorised officers could not be expected to hump around an enormous book all the time. Our response was that it is the modern age, there are iPads and smartphones and so on, and it would be no great imposition to have the authorised officers carry the regulations on their smartphones.
The Minister makes quite a good point about gardaí not having to produce the Statute Book of Saorstát Éireann and the Republic of Ireland which would be very onerous. However, this was a situation that was established before the existence of smartphones, iPhones and iPads and so on, and now that we have these things, it is not too much to expect that regulations be uploaded onto the smartphone of any authorised officer. For the sake of convenience, it would be a very good idea if someone is being charged with an offence, that the officer can just turn on the phone and show the person the exact section of the code under which he or she is being charged. It is not onerous.
We have listened to the Minister's argument and changed this amendment and it is perfectly reasonable to expect an authorised officer to have the by-laws on a smartphone. The by-laws of the canals of Ireland are nothing like as extensive as the enormous collection of statute books that a garda would be required to carry around in similar circumstances, had I introduced an amendment covering the Garda. I do not think that is fair and I am inclined to stick on this. I am interested in what my colleague, Senator Ó Domhnaill, thinks, what his arguments are and if he has any additional information to add to this if the spirit moves him to contribute. It seems a perfectly reasonable thing to do. When the Minister returns, I will listen to her or any of my other colleagues on either side of the argument and then I will make a decision on whether to pull a vote on it.
I acknowledge Senator Norris's excellent contribution and acknowledge his input into this area of the communication element of enforcing by-laws.
I acknowledge the Minister's willingness to accept our recommendations to increase the period of consultation around the objections to by-laws from 21 days to 90 days and placing the onus on Waterways Ireland to have an adequate consultation period which is in line with the consultation period in its own corporate plan. It affords an opportunity to all stakeholders and users, more importantly some of the stakeholders who are the local authorities or councillors, and the Minister has acknowledged that. It is important that there is a direct point of interaction between Waterways Ireland - a North-South body - and local councils, where democracy interfaces with the public at the closest point.
The Minister's amendment No. 19 places an onus on Waterways Ireland to furnish each local authority with a written copy of any proposals within the functional area of the local authority. That is vitally important. The 90 days is important. Take the example of a by-law issued in July. If a council did not hold its plenary meeting in August, the 90-day period means that it would still be able to raise objections by its meeting in September.
The issue of communicating the by-law by publishing it on the website has been addressed in section (ii) of amendment No. 25.
Senator Norris spoke on section (iii) of amendment No. 25 and the need for authorised officers to present the by-law in an electronic or hard copy format. I am relatively easy on that. I am not sure whether other authorised officers, such as fisheries officers within the Department of Communications, Climate Action and Environment working for Inland Fisheries Ireland, have to provide regulations. If they do not, it may be difficult to implement or request Waterways Ireland officials to implement it. I agree with the thrust of Senator Norris's request. I can only assume that there are going to be a lot of new by-laws coming down the tracks from Waterways Ireland, given its investment programme and developmental works. There is nothing wrong with that, and there is consultation built in, but if there are new by-laws coming down the tracks, then if people are in contravention of a by-law, they need to be clearly aware of what it is.There may be a need to update communications and there are ways of doing it. For example, Electric Ireland meter readers bring an electronic device to one's home which can read the meter. I do not see why officers, whether of Inland Fisheries Ireland, Waterways Ireland or any other State agency, would not have an electronic device. If one gets registered mail through the post, one does not sign a piece of paper rather one signs on an electronic device. There is a little pen. Technology has advanced, albeit I am not sure that is the perspective Senator Norris comes from with the amendment. It might be something to look at. I am not sure whether it can be incorporated at this stage. Is there a rationale for refusing to accept the amendment? Is there a constitutional issue which prevents it or another reason?
I thank the Minister for accepting the 90-day period. It is sensible and shows she is willing to take such steps.
I join other speakers in welcoming the fact the Minister has taken on board the strong message from across the House on the 21-day consultation period being inadequate. I appreciate the Minister has now accepted and agreed to a 90-day consultation period, which is a significant improvement. Government amendment No. 19 is positive in that it clarifies not simply that there will be consultation but that there will be clarity around information on by-laws and an invitation to consultation. It is positive both in terms of its communication with local authorities and in terms of its general public advertisement provision. I commend the amendment.
I wish to speak in favour of amendment No. 25, which is important. It is not simply a matter of technology but of accountability and transparency. The authorised officers who will come under this legislation will be the front line of Waterways Ireland and will implement the by-laws. It is a considerable evolution of the original points put forward by Senator Norris. He argues not that presentation would be required but for presentation on request. It is extremely reasonable where one is being told one is in breach of a by-law that one should be able to know, on request, what exact by-law that is and to see it. It is a reasonable point. We should bear in mind that in other provisions of the Bill authorised officers are being given the power to issue fixed notice fines. I urge Fianna Fáil to look at this. Perhaps the Minister will indicate that she will take it on board on Report Stage. However, I urge others to support it. Do we want a situation in which an authorised officer can say one is breaking a by-law, hand over a fine and walk away with no mechanism for appeal in place while one never sees the by-law of which one is supposedly in breach? It is a reasonable request and it is updated. It is simply a hard copy or it could be as simple as a phone. It places an onus on Waterways Ireland to provide authorised officers with the materials they need to do their jobs responsibly and appropriately.
It is a reasonable amendment to allow one to be clear. While the analogy of gardaí was used, I note that there are appeals mechanisms where one is fined by a garda. They may not be adequate and we may have had problems with their implementation but there are structures in place. With due respect to the Minister, it is not right to suggest that people who feel wrongly treated having been fined under a by-law which they have never seen should pursue redress through the courts. It is the policy of the Government as stated elsewhere on other occasions to take these kinds of tiny cases out of the courts system. We do not need someone clogging up the courts system or having to take on the cost of legal counsel simply to contest a €200 fine he or she feels was wrongly imposed. It is a simple measure. If we are introducing these powers for authorised officers and the power to introduce by-laws, the least we can provide is a simple transparency at the point of contact. It is very basic and extremely reasonable. I cannot understand why it would not be taken on board. Perhaps the Minister would like to suggest a reworded amendment and carry it through herself, but if it is opposed, I will certainly support Senator Norris should he wish to press it.
I welcome some of the points that have been made. My concern, as I said to the Minister the last time, is that in Carlow-Kilkenny there was no power given in respect of the River Barrow. One had the local authorities, the OPW and Waterways Ireland but one could not get them when one wanted them. My main concern is to ensure that in the 90-day consultation period Waterways Ireland contacts every local authority. I see that it says there should be communication with every local authority in the long term, but local authorities have a 90% input on this because every local authority is different from rural ones to city ones. Waterways Ireland needs to have meetings with them. Everyone will know his or her own area best and that is half the work done. By-laws are also crucial. Where some small works have needed to be done on the River Barrow, there has been no real point of contact and one did not know who was responsible. No one took responsibility. Going forward, by-laws are crucial but they cannot be made without every local authority having an input into the consultation.
Fees are something that need to be minimal. We must ensure that this does not go under the radar and that we cannot vouch for it. Fees must be kept as low as possible. I ask the Minister to ensure that Waterways Ireland visits and consults with every local authority. That is crucial.
I reassure the Senator that Waterways Ireland writes to all local authorities. A notice of proposed by-laws will be published in the newspapers and on the website, there will be consultation meetings and all known users will be written to. It is important to note that what the authorised officers will be doing is reprimanding people for doing something wrong. We should look at it from that perspective also.
My point is that it is not in the interests of authorised officers to go around issuing fixed notice penalties to people who are doing nothing wrong. That does not make sense. They are well trained people and they take their responsibilities very seriously. Wildlife officers do not have to carry around their rules and regulations nor do Inland Fisheries officers. I do not see why those policing the canals should have to go around with a set of rules and regulations. Having said that, there is nothing to stop Waterways Ireland from taking on board the views of Senators. It might be good practice for authorised officers to have a copy of the by-laws on their iPhones.
Of course the person breaking the law will be told which by-law he or she is contravening and can be referred to a website which he or she can access on a mobile phone. If anyone has a query, he or she can request information from Waterways Ireland which will be provided. A fixed notice will state exactly what by-law has been breached. It would be onerous and unfair to pick out the officers of Waterways Ireland where a similar obligation does not apply to other officers right across the board.
The Minister's amendment just states that if it is proposing to make a by-law it would put it up. It does not say that when the by-law is passed it should be put up. The Minister states it is good practice. There is no reason that we should hold things back just because things have not been done in the past. Perhaps the Garda should have to carry this information. I will be pressing the amendment.
I do apologise for transgressing.
I move amendment No. 25:
In page 6, to delete lines 24 and 25 and substitute the following:“(ii) publish canal bye-laws on its website,
(iii) provide to authorised officers for presentation on request for reference purposes a copy, either hard copy or copy by electronic transmission by smart phone, iPad, etc., of the bye laws in the event of a bye law issue being raised by the authorised officer.”.
Ivana Bacik, Gerard Craughwell, Maire Devine, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Gerald Nash, David Norris, Grace O'Sullivan, Brian Ó Domhnaill, Niall Ó Donnghaile, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Paul Daly, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Billy Lawless, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly.
This is an exceptionally wide provision. I will read the lines I propose to delete:
(3) Canal bye-laws may contain all such incidental, subsidiary and ancillary provisions as Waterways Ireland considers necessary or expedient for the purposes of the bye-laws.
That is a huge catch-all phrase. Waterways Ireland can introduce anything it thinks is expedient or good for it.It gives it such enormously sweeping powers that I am against it. There should be some degree of restriction and consideration given. That is all.
Waterways Ireland has to publish the proposed by-laws and they have to go out for consultation as we have just discussed. Waterways Ireland has to write to all users and the local authority. There is not a chance that it will do something outrageous without somebody picking it up. To be fair, it is within the area it already makes by-laws about.
On amendment No. 27, I indicated to the Senators that I would look at having a review of the by-laws every five years and introduce an amendment on Report Stage. This amendment provides that Waterways Ireland will review the by-laws within five years of the making of any by-law and thereafter at intervals not exceeding five years and submit a report of its findings to the Minister. I am also arranging for a copy of the report to be laid before each House.
Amendment No. 29 provides that "In page 6, line 32, to delete 'a class D fine' and substitute “warning notices and fines as defined within the bye-laws". This is potentially a €1,000 fine. The fining system should reflect the seriousness of the offence. As it stands, this means that someone not displaying the permit correctly is open to the same fine as, for example, someone who discharges slurry into the canal. They are two totally different events in terms of their seriousness so there should be a system of provisional notice without fines, so sending a warning notice and-or fines. I have received communications from members of the public on the subject of fines. I will quote a letter from a decent woman who lives in Phibsboro, who said:
I sense there's a false understanding represented in the Heritage Bill that penalising the residents and moored boats along the canals will encourage more traffic on the canal. This is a conclusion reached with no research and no consultation with the boating community. Simply cycling along the canals (as I do often) it is clear to see that there are not enough moorings to facilitate the imposed movement, nor is it always possible to get these moorings due to travel restrictions currently in place. In essence imposing the penalty described in the bill will be like shooting fish in a barrel.
There is a certain degree of resistance from the general public out there on this. I recommend my amendment. With regard to a €1,000 fine, there is a lack of discrimination and a lack of fineness in the application of the law. It is wrong if a person can be fined this amount for the inappropriate displaying of a permit, on the one hand, and get the same fine for discharging slurry into the canal which will kill fish stocks and create a nuance and a very noxious situation. There should be more definition and discrimination. I will be pushing the amendment at least to a voice vote.
The fines will be determined in the courts by the judge and €1,000 is the maximum fine. The maximum fixed penalty is €150. The penalties are for breach of by-laws. It is legislative practice to provide penalties in primary legislation. I cannot accept the amendment. We must provide for the fines in primary legislation.
Amendments Nos. 33 to 36, inclusive, and amendments Nos. 38 and 39 are related and may be discussed together. Amendments Nos. 33 to 36, inclusive, and amendments Nos. 38 and 39 are in the names of Senator Norris and Senator Ó Domhnaill. Amendment No. 37 has been ruled out of order because it would result in a potential charge on the Exchequer.
These amendments all follow the same line of thought. I am sorry that amendment No. 37 has been disallowed on this nonsensical notion which I do not blame the Cathaoirleach for but I think the Seanad should be free of the notion of creating a charge on the Exchequer. It is complete and absolute nonsense. We should be allowed to create a charge on the Exchequer. Why not? God knows the Dáil has made a big enough balls of the economy over the years. I think we could be trusted a lot more than Dáil Éireann. I regret this. I would like to ask the Minister to take into account-----
I would like to ask the Minister to take into account the notion of an independent appeals board. There should be some degree of appeal. I know the amendment was ruled out of order but I would like the Minister to take it into account.
With regard to the use of the word "balls", I said it and perhaps it was wrong but it is there. I would like to make this point. Last week, I said "bugger off" about something in a lighthearted way. It was changed by the transcribers. I do not think that is right. The record of the House should show exactly what is said. I have had this before when a Senator who I was rather friendly with said that he was about-----
I was censored before because my sense of humour was cruel. I do not think the transcription office is a place for cruelty police. I will leave it at that.
Amendment No. 33 provides that Waterways Ireland needs to produce proof and needs evidence. Amendment No. 34 provides that Waterways Ireland needs to give the details of reason for grounds for believing that an offence has been committed and details of proof of this offence. One is entitled to know what one is charged with. One is entitled to know if there is any proof.Amendment No. 36, which proposes the insertion of the words "determining reasonable proof", is similar. We are seeking to provide for proof in this respect other than that an offence has been committed.
On amendment No. 33, the words "reasonable grounds" included in the section are sufficient. It is normal in legislation to use the words "reasonable grounds". One does not have to prove it on the spot. That is all I have to say on it.
I move amendment No. 35:
In page 7, line 20, to delete "21 days" and substitute "30 days".
My apologies, I did not realise they were all grouped. I would be interested to hear if the Minister has reflected on the proposal to increase the period for allowing persons to pay fines from 21 days to 30 days. I appreciate that 21 days is the norm but that does not necessarily mean it is right. Given that the financial cycle now tends to operate on a 30-day cycle, with people being paid monthly and visa and credit cards payments operating on a monthly cycle, 30 days prior to interest accruing, a 30-day period would be much more appropriate in this respect. A 21-day period, irrespective of from which Department this comes, is out of date. I am sure the Acting Chairman, being an accountant by profession, would agree. I hope the Minister will indicate a willingness to accept this amendment for the purpose of allowing people an additional nine days to pay a fine. It makes sense. There is no rationale for having a payment period of 21 days versus 30 days. This is a reasonable proposal. The Minister will probably make the argument that other Departments have a set payment period of 21 days. That might have worked in 1985 or 1995 but we live in 2017 and these are changed financial times where people live from paycheck to paycheck, from month to month. Also, the 30-day cycle is relevant to every other aspect of economic activity within a household, for example, mortgage payments and credit card statements. Therefore, a 30-day payment cycle would be much more appropriate. I should have probably pushed it out to 31 days because 30 days does not cover some calendar months. I would be interested to hear the Minister's response.
A period of 21 days is the standard number of days for payment of a fixed payment notice for similar offences under the Maritime Safety Act, the Merchant Shipping Act, the Shannon Navigation Act and the Harbours Act. The fixed payment provision is not a new provision having already been provided for in section 56 of the Maritime Safety Act, which amended the Canals Act 1986. We are trying to be consistent here. The advice is that variants would be confusing and inconsistent with other provisions within this Bill. I take the Senator's point but for the sake of uniformity it should be left at 21 days. If a person pays a fine by credit card and their credit card payments are up to date, they will get a month's credit on top of it.
I move amendment No. 39:
In page 8, line 3, after "defendant" to insert the following:". This will be determined by the issue of a receipt by Waterways Ireland confirming that a payment has been received".
I did not realise this amendment was being discussed.
The Senator's amendment proposes that "This will be determined by the issue of receipt" but they will get that. This proposal is not necessary. A prosecution can only be brought if the amount payable on the notice has not been paid by the defendant. With respect to the proposal that Waterways Ireland would issue a receipt, the person would have paid the fine and Waterways Ireland would not bring the case further when the person has paid the fine.
No, one does not. I am definitely going to press this amendment. There is nothing in the legislation indicating that one gets a receipt. Apparently, there is such as reference, as I note the Minister's advisers are indicating that there is. When they have written out in clear legible writing that we can have this, I will be satisfied.
On page 7, the new section 7A(2)(b) states that where notice is given under subsection (1) "Waterways Ireland may receive the payment, issue a receipt for it and retain the money paid, and any payment received shall not be recoverable in any circumstances by the person who made it ...".
I certainly can. That is not the intention behind the amendment but an additional benefit of it is that it would only require Waterways Ireland staff to carry out inspections. In other words, Waterways Ireland would not have to hire in other people to carry out that work; it would be carried out by its employees who are salaried and paid for in any event. They are there from 9 a.m. to 5 p.m. and there would not be any additionality in terms of wages. I am not sure why the amendment was ruled out of order.
To be helpful, my officials advise that the reason it is out of order is that amendment Nos. 40 and 41 both relate to the same matter and amendment No. 41 causes amendment No. 40 to be out of order where amendment No. 41 provides that "All authorised officers should be permanent employees of Waterways Ireland". It is probably the reference to permanent-----
I understand that but we should send it to that committee for a ruling on whether it is properly out of order.Let me make a point of principle. I have felt for a long time that there should at least be some justification given for rulings from the Chair. It is like if I had an argument with my poor unfortunate older brother who died last year. If we had an argument, I would ask, "Well, why?" He would say in reply, "That's the why."
It is clearly a misunderstanding of the text of amendment No. 41. There should be a new ruling on it. What has been perceived from the amendment which seeks to insert the words "All authorised officers should be permanent employees" is that new employees would be given permanent contracts, but that is not what the amendment seeks to do.
That is clear. In fact, it is based on an amendment Senator Lynn Ruane and I brought forward and that was the clear intention. As a member of the Committee on Procedure and Privileges, I will raise it at it also as a concern.
We have already spoken about substituting the words "boats may be used in the canals in" and the words "the canals and canal property may be used in" would merely broaden them slightly.
On amendment No. 43, the words "stop a boat that is under way" are too broad for me because there are safety issues involved. One must take into account the safety and seaworthiness of a boat. One does not want to involve oneself in a situation where one is causing danger.
Amendment No. 45 which seeks to insert the words "if this evidence is not available then an individual should be able to produce said evidence within a reasonable period of time as determined in the bye-laws" seems to be quite reasonable. In other words, if the evidence is not directly to hand, the individual concerned should be given a reasonable amount of time to produce it. I do not see any reason to be against this, but I will wait to be informed by the Minister.
Then there is the amendment which seeks "In page 9 ... to delete "A person to whom a direction is given, or a request is made" and substitute the words "Where there is an identified risk to safety a person to whom a direction is given, or a request is made, by a suitably qualified authorised officer...". As it stands, the Bill is too vague. The amendment would tie it down a little more and indicates a situation where there is an identified risk to safety.
Are we also discussing amendment No. 47 which is about fines? I would have thought it would have been much more relevant to group it with the other amendments.
I agree with Senator David Norris. The powers set out in the section are aimed specifically at boat users and no others. Concerns have been expressed about the powers authorised officers will have under the section. For example, the Inland Waterways Association of Ireland is of the view that they are excessive and prohibitive. The concern seems to be that boat users risk being exposed to the impersonation of officers in terms of being stopped and boats being robbed, etc. I am not sure how those fears can be addressed and allayed. This applies particularly to vulnerable boat users where persons impersonate officers and stop boats along a canal. Amendment No. 45 seeks to ensure an officer acting on behalf of Waterways Ireland would be compelled to produce evidence not only of his or her identity but also of the by-laws or the section of the legislation under which the boat user was being stopped.
The other issue is safety on board a vessel. The master ultimately has responsibility not only for the vessel but also for the passengers and crew. If the vessel is being stopped, pulled in or detained, does that compromise the safety of passengers on board?
These are some of the concerns being expressed and I am sure they have been articulated to the Department by, for example, the Inland Waterways Association of Ireland. That is the general thrust of thee amendments.
In amendment No. 42 at lines 25 and 26 the Senators want to take out the words from "boats" and insert "canals and canal property". In paragraphs (b) and (c) the Bill covers what they want to do by way of amendment of paragraph (a). That should allay their concerns. Subsection 5(a), (b) and (c) cover all of the matters about which they are concerned for users of canal property.
On amendment No. 45 which seeks to insert the words "if this evidence is not available then an individual should be able to produce said evidence within a reasonable period of time as determined in the bye-laws", I know what the Senators are trying to do, but it does not make sense in that particular space. It would be a material change to the provision and as such, I am not able to accept it. I presume the Senators are referring to evidence of insurance. I am a little unclear on what is meant.
Amendment No. 46 would be very restrictive for Waterways Ireland. One can only give directions for safety reasons and the amendment would make the measure unworkable.
To be clear regarding impersonation, all officers must carry a warrant of appointment. That is included in page 8 of the legislation. Section 7B(2) states they must produce identification.
During the passage of this legislation through the House I have stated on a number of occasions that the intention of the provision under section 8(2) is to allow hedge trimming to take place in the month of August on roadsides and that the trimming will only be of the current year's growth and not involve the use of heavy flails. If a person needs to carry out heavier cutting of hedges such as grubbing and flailing, he or she must do so during the current permitted period between September and the end of February. Therefore, I propose in the amendment to section 8(2) to delete the provisions relating to grubbing and destroying and confine the activity to the cutting of vegetation in hedges and ditches on roadsides in the month of August. The regulations which my Department will produce on foot of this provision will emphasise the fact that the destruction and grubbing of hedges is prohibited in the month of August. My amendment is similar to amendment No. 54 which has been proposed by a number of Senators. In fact, it strengthens the language of the Bill and makes it clear that any cutting in the month of August can only happen on foot of and in accordance with regulations to be made by the Minister. I ask Senators to support it.
In effect, there are two halves at work in section 8. In the first there is the extension of burning into the month of August. I realise we will not get a chance to vote on the amendments I tabled on the issue. They were quite nuanced and also considered invasive species. I trust our colleagues in the Dáil will address the very serious concerns about gorse burning and the damage caused by it to habitat and the long-term impact of the exact same issues the Minister is now suggesting she will address in regulations for hedgerows under amendment No. 53. The same issues in respect of pollination, habitat and natural heritage that affect birds, bees and pollinator plants still apply to upland burning and upland removal also. This debate will continue in the Dáil. The Minister has said she will introduce regulations. Is she also planning to make regulations for gorse burning in the extended period? Is it envisaged that she will also publish regulations and express the same concerns about management, maintenance and husbandry in section 2? Will that apply to the section dealing with gorse burning or simply to the section that deals with hedgerows?
I came to the House hoping to welcome the move towards ameliorating, to some degree at least, the extraordinary damage that can be done to hedgerows in the month of August by limiting the cutting to hedgerows on the roadside. Unfortunately, I am extremely concerned because while it is not adequate, I had hoped to welcome it at least as a small concession. We will come to amendments dealing with the regulations and where they might be published. I am concerned about the policy intent in a later section which effectively will undo the progress made in amendment No. 53. If amendment No. 53 represents what I believe has been a genuine, an open, a well intentioned and honest debate and engagement across the House by those with different perspectives to come to a form of compromise on the Heritage Bill and, even though we may not agree fully, reach an amelioration, we are in danger of undoing the good that will be done by the later amendments tabled by the Minister. I will support amendment No. 53, but I regret that there might be a danger of what it symbolises being diluted later in the Bill by means of the Government's amendments. I hope the Minister will consider the withdrawal of amendment No. 63.
Yes, I am speaking to amendment No. 53 which represents a moment of progress and a recognition of concern, but I point out that amendment No. 63, should it be moved, will represent a roll-back on all of the progress made. I did not agree fully with our colleagues across the House in Fianna Fáil in respect of gorse burning and although we completely disagree on certain sections of the Bill, I recognise that it was an honest attempt to compromise and ameliorate the problem. That is what is reflected in amendment No. 53. I urge that we celebrate that and do not want to see it undone.
I acknowledge and support what Senator Alice-Mary Higgins said. We have made huge progress in getting rid of terms such as "grubbing" and "destroying" hedgerows. I never saw a heritage Bill as being conducive to the use of such terms. We have come a long way which I welcome and it would be most unfortunate if we were to row back at a later stage and unpick all of the work we have done in recent months on the Bill. We have listened and engaged with those involved in various sectors such as farmers, the environmental NGOs and communities which were supportive of protecting hedgerows in the month of August. We recognise that in what she has proposed the Minister has gone some way towards acknowledging what we put forward, but there is a danger that the amendment will be unpicked and rowed back on later, which would be a crisis.
I will give a little detail to show how important it is to restrict hedge cutting. I will reserve my remarks about bees until we reach Senator Alice-Mary Higgins's very important amendment on pollinators. I have been advised by Birdwatch Ireland, for example, that the impact on the most endangered species of wild birds is extraordinarily significant. I wonder if the Minister who has so far not shown a great interest in the scientific evidence is aware of the situation with regard, for example, to a series of listed birds. The barn owl, for example, is red listed in Europe because of a 77% decline in the breeding population over a 20-year period. It uses hedgerows for the purposes of foraging. Hedgerows are a vital foraging habitat for it. The research has demonstrated the importance of hedgerows as a preferred prey-rich habitat selected by adults hunting for food for their unfledged young. Another red listed bird is the yellow hammer. There has been a 90% decline in the breeding population over an 11 to 14 year period.That is a figure of 90%. Yellowhammers are almost entirely gone. They use the hedgerow for nesting and are therefore particularly vulnerable. Some 5% of yellowhammer nests are still active. In other words, they contain unfledged young at the end of August and 1% still contain young on 20 September. That is the situation in which we are encouraging this extension of burning and grubbing.
With regard to the kestrel, there has been a 34% decline in breeding. It uses the hedgerows for foraging. As with barn owls, the hedgerows offer a prey-rich habitat for the adults. There is then the mistle thrush. There has been a 37% decline in the breeding population. They also use the hedgerows for foraging. Large post-breeding flocks of mistle thrushes containing both adults and juveniles are dependent upon berries after the main nesting season during the autumn from July to September and they particularly favour overgrown hedgerow habitats.
I had a visit this morning. I was delighted to see my little robin hopping along towards the kitchen window. However, even robins are subject to a 37% decline in the breeding population. They use the hedgerows for foraging and nesting. They are important habitats for the robins throughout the year. Unusually for some birds, robins defend territories all year round, with winter territories dependent on the availability of food. Hedgerow species, notably spindle and elder, are their preferred berries, particularly in August and September. The linnet is a species of European conservation concern. The greenfinch has been amber listed due to a 38% decline in breeding population.
If we look at not just the hedgerows but at the mountains and low-lying hills, there is a similar situation. We have already referred to the curlews. There has been an 86% population decline. The golden plover has seen a 52% decline. The red grouse has endured a 50% decline. The meadow pipit has seen a 59% decline. Hen harriers, merlins, snipes, skylarks, stonechats and wheatears are all species that use upland, peatland or moorland habitats throughout the year and are particularly vulnerable during the nesting season. I believe it is extremely important that we take into account the impact on the rare and threatened bird species when discussing this legislation.
I just wish to make a point of clarity to the Acting Chairman. I want to be clear about the groupings the amendments are being taken in. One grouping includes amendments Nos. 53 to 56, though amendment No. 56 is not necessarily tied to upland burning. The grouping has taken the hedgerows------
I wish to respond to some of the issues raised. This relates to both hedges and gorse and therefore involves hedge-cutting and burning. Citizens must abide by the existing legislation until this proposed legislation is passed and the regulations issued.
I move amendment No. 57:
In page 12, between lines 6 and 7, to insert the following:“(3) All hedges cut and uplands burned under this section of this Act shall be included in a register with the Department of Communications, Climate Action and Environment which is made publicly available.”.
Amendment No. 57 states that all hedges cut and uplands burned under section 8 of the Act must be included in a register to be located with the Department of Communications, Climate Action and the Environment and to be made publicly available. Amendment No. 58 also suggests that hedgerows cut under the pilot scheme as proposed in section 8 of this Act and under any section 70 order should be included in a register that is made publicly available.
I will speak first to amendment No. 57. What is important to highlight and what is clear is that this is not simply a hedge by hedge issue. There is a collective concern in respect of the hedgerows of Ireland. They are part of a shared heritage. They are the conduits of our nature and have a value for all of the citizens in Ireland. They contribute to the global responsibility of a shared planet. Ireland and the Irish Government has in two key areas made strong and key references to hedgerows. In its representations in respect of the Common Agricultural Policy, CAP, Ireland has been very clear that hedgerows constitute a large portion of our habitat maintenance and greening in order to qualify for the greening section of the CAP payment, which constitutes almost a third of the payment. The Department of Agriculture, Food and the Marine seems to be very far ahead of the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs in this area. The Department of Agriculture, Food and the Marine under the current GLAS scheme lists extensively very specific measures that will be applied in respect of hedgerows, for example, the margin around each hedgerow, whether there is a bee box, and which particular species is being supported and how.
We are moving towards a period of time in which, in order for farmers to access their GLAS payment scheme, the single farm payment or any other schemes that may be considered meriticious, there will need to be extensive indicators provided. As we move towards the 2020 wave of CAP, it is increasingly likely that we will need actual concrete results. For example, if the yellowhammer were to disappear from Ireland, as it may well as Senator Norris has described, Ireland will no longer be eligible for payments in respect of the yellowhammer habitat. There is a very direct interlinked economic case to be made. That is why we are suggesting that we need to register and know exactly what is happening under this legislation.
Along with the carrot of the CAP payment, not far down the line we will be looking as a nation at the stick of penalties and fines in respect of failure to meet our climate change targets and emissions. That which we cannot prove we are delivering upon in terms of, for example, sequestration through our hedgerows will need to be proven and delivered upon under other targets in other areas. We are looking for something that we will discuss later when we discuss the pollinator plan. Ireland will need to know and be able to prove what it is doing in respect of our hedgerows and how they are contributing and meriting CAP payments and greening. The Irish EU Commissioner, Phil Hogan, is currently fighting for a larger role for greening within the payments from CAP. At a time of extraordinary vulnerability for our farmers due to Brexit, these payments are crucial if we are to find a way through what will be an economically testing period for farmers.
At a time when we are representing our interest in that way, there is a danger that this legislation would be perceived by Brussels and others as representing a significant message from Government that the preservation and conservation of hedgerows is not of the same degree of priority as it was when we last applied for CAP farming and that the hedgerows that we have cannot be considered with the same merits and on the same grounds as previously in terms of meeting our climate change targets. We would be weakening our case. This amendment is a small and practical suggestion in order to at least monitor what is happening so as to have some chance to ameliorate the weakening of our case as represented by this legislation.I previously asked if the Minister had engaged with the Minister for Communications, Climate Action and Environment and the entire legislation had been proofed against Ireland's climate change targets, but we have not received a satisfactory answer to that question.
With regard to amendment No. 58, people have contacted us to say they face obstacles when they seek to report illegal cutting of hedgerows and gorse burning out of season with devastating consequences, including the contamination of water and, for example, the cutting off of electricity to the Aran Islands in early March. They are asked whether the landowner has a section 70 order. The amendment proposes that where such orders are issued, they should be recorded in order that they would be publicly available and people would know whether hedgerows had been cut legitimately. Our group tabled practical amendments to strengthen the section 70 regime which would have allowed landowners to actively seek an order to better deliver what they believed to be road safety. Our amendment also provides that concerned citizens could seek section 70 orders. The order system, while established and functional for more than 20 years, could have been strengthened. I am concerned, however, that the proposal seems not only to fail to keep a record of section 70 orders and make them publicly available but also ensure councils will maintain records of hedges cut for road safety reasons. It is proposed to abolish the section 70 order system and move towards something closer to a free-for-all without regulation or monitoring. Amendment No. 58 would represents an improvement in, and a strengthening of, section 70 transparency. We have bigger battles ahead in later amendments.
Amendment No. 57 relates to the maintenance of a register. On Committee Stage I referred to the EMBER project that had demonstrated the effects of moorland burning on the ecology of river basins, which is practised predominantly to support the red grouse population for gun sports. Senator Daly highlighted that the red grouse population in his area had recovered through good practice as people acted as the guardians of the countryside. However, there is a need for a register to know what is going on in the countryside. Long-term monitoring under the EMBER project has shown a significant negative impact on peat hydrology, chemistry and physical properties, river water chemistry and river ecology. We need a clear record of what is happening on peatlands and uplands in the context of gorse burning. The changes to bogs and upland peatlands are not clear, particularly in respect of how often different areas may be burned to encourage grass growth. Senator David Norris has clearly covered the numbers of bird species and pollinators that can be affected by this, but the effects of upland burning on soil erosion and expensive flood relief works being carried out and the sponge effect of the upper peatlands have not been covered. It seems we want to race to extend the area that can be burned when the current areas are not even controlled properly. In 2005, 4,500 acres of land in Killarney alone was damaged by burning out of season, but there was little enforcement at the time and not much data was available subsequently. I accept that this is difficult. Somebody can go to the uplands, set a fire, go to the pub and before anybody realises what has happened, the damage has been done. I strongly support the proposal for the establishment of a register. We must protect uplands. If we do not know what is happening and cannot monitor what is happening in the long term, there will not be a scientific basis for decisions.
With regard to amendment No. 57, it should not be mandatory for every hedge cut and area of land burned under this provision to be reported to the Department of Communications, Climate Action and Environment. I cannot accept that there might be a gain from having such a register that would justify the cost and efficiencies involved, nor can we require another Department to keep a register.
With regard to amendment No. 58, it should not be mandatory for every hedge cut under this provision to be included in a register. That would be an overly bureaucratic and time-consuming process which would have significant cost and resource implications for my Department. I cannot accept that any gain there might be from having such a register would justify the cost and efficiencies involved.
We cannot amend the Roads Act which covers section 70 orders.
Amendment No. 58 would not place a requirement on the Department; it would place a requirement on those issuing section 70 orders at local authority level. Given the extraordinary reluctance to monitor the provisions and that the question of road safety has been moved aside, is the pilot project also to be cut? Monitoring is regarded to be onerous, yet in earlier debates we were told pilot projects would be carefully selected. It will be the most extraordinary pilot project where not only have we rejected previously any opportunity to conduct a baseline study but there will also be no intent to monitor where the pilot scheme happens. Presumably, if the area in which the project is happening is not monitored, what is happening will not be monitored. There is a disjunct in that regard. Perhaps when the Bill reaches the Dáil, we might arrive at a point of honesty where the language of the pilot project will be entirely abandoned because that is clearly what we are looking at, unfortunately.
The Minister has stated she cannot amend the Roads Act and does not wish to engage with the amendment as it relates to the Act. It has previously been used as the rationale to reject amendments, yet amendment No. 65 provides for a direct set of actions in respect of the Act. The Minister is weighing in on a level not seen in more than 20 years. The Roads Act 1993 gave cognisance to the Wildlife Act 1976.Unless she changes her mind, the Minister is very shortly proposing to engage with all of the delicate proposals, amendments and structures for overlap between those two Acts constructed at that time which have been in place for over 20 years. I find it somewhat inconsistent that the Minister speaks about not intervening in the Roads Act in respect of my amendment but is discussing the Roads Act at the centre of her own proposed amendments a little bit later on.
I am genuinely losing faith in all of this. I would like to be reassured by the Minister. The reason I am losing faith is that when I travel around the country, which I do regularly, and look at the hedgerows all along our motorways and our roads, they are hacked to death. Leaving out the internal and external hedges of farms and those internal to every county, when I travel on the motorway, which I did yesterday and the day before and the day before that, the hedges are hacked to death. One would think Vikings had come in with huge hooks and hacked every bush regardless of its size and shape and its natural environment.
I move amendment No. 58:
In page 12, between lines 6 and 7, to insert the following:“(3) Hedgerows cut under the pilot scheme in Section 8 of this Act and hedgerows cut under a Section 70 order must be included in a register that is publicly available.”.
This amendment relates to section 8(4)(b) of the Bill which provides for a sunset clause in the provisions in sections 8(1) and 8(2) on burning and hedgerows, which are only in force for a two year pilot period and can only be extended by a resolution of each House of the Oireachtas. Having considered the contributions of a number of Senators on Committee Stage, I am of the view that it is appropriate that such a resolution should be limited to a period of three years at any one time. This will allow me to report back to the Oireachtas on the workings of the section in a timely manner.
I thank the Minister, because I made very strong representations to her on Committee Stage that there should be a sunset clause in this. The Minister just mentioned this pilot scheme again. Now that we have not accepted the register, how are we keeping a record? This is a pilot scheme as the Minister just mentioned again.
How are we to know what damage is done or how well the pilot scheme operated if there is absolutely no record of what has happened in respect of upland burning or hedging? If it is a pilot, will the Minister please tell us how we are going to measure whether it has been successful or not? We have now accepted that there will be no records of what will happen over the next three years.
I have listened to a lot of the debate around the pilot issue and the hedges. Senator Marie-Louise O'Donnell, who reminds me of Gráinne Uaile, a great Irish champion who stands up and is counted when it is important, has hit the nail on the head. There is an issue here around how we define the pilot scheme. Are we going to completely abandon what was agreed here the first day, namely that it would be confined to roadside hedges? Now there seems to be a dilution of that position. I cannot wait to hear what the Minister has to say on that when we come to amendment No. 63.
On the pilot issue, let us not fool ourselves. We cannot operate a pilot scheme over two or three years and include the whole country, because there would be no comparative analysis to base findings on. It is not really a pilot in the scientific sense. I would be interested to hear what the Minister has to say about two current pilot projects which are taking place around our hedgerows in Ireland. They are being undertaken by Tipperary County Council in conjunction with Donegal County Council. That is one pilot project that is defined to two counties. Submissions were made locally. Considerations of biodiversity have been taken into account. The conclusion of that pilot project was due at the end of March but it is my understanding that the volume of work was such that it has not concluded yet. Why are we even talking about a national pilot project when we have a pilot project in County Donegal and in County Tipperary which could be used as a barometer? Has the Minister's Department had any engagement or interaction with the local authorities or the staff involved in these counties? Surely, if we are really interested in biodiversity, heritage and protecting wildlife, we should at least use that project as our barometer. We are pre-empting that study - which is a study because there is something to compare it against - if we push ahead with what is being suggested here today.
Senators O'Sullivan and Higgins touched on amendment No. 58, around the issue of pilot schemes and so forth. I agree with that, but if we are going to undertake a pilot scheme, and if we are here as Members of the Oireachtas in Seanad Éireann, we should make laws based on the best available information from the professionals who operate within the sector. We should base laws on hearsay or decide to bring in laws that will satisfy the needs of one interest group over another.
This is a very serious issue. It is about protecting our biodiversity and it also about protecting our agriculture. Over the period up to 2020 the Common Agricultural Policy, which is a European project, will deliver €10.7 million to Irish agriculture. Some 30% of the direct payments, which make up €8.8 million of that €10.7 million, are provided for greening proposals. All of the farmers I know on the western seaboard and the farmers in County Donegal have been doing that for years anyway without getting any money for it, but the whole objective was to protect biodiversity and soil quality and to deal with issues around climate change. Some 30% of direct payments provided for by the European taxpayer are in respect of greening. It would be very wrong it that were torn up here today by allowing a free-for-all on cutting of hedges throughout the entire year, which would appear to be the objective of amendment No. 63. That is wrong. We are not dealing with it.
The Senator hit a sandbank in his pilot.To return to Tipperary and Donegal, could the Minister use those for her pilot project or do we not trust the officials in both councils who run it? Surely if section 8 is to be introduced on a national basis, we would first take on board the work of both of those local authorities and then decide if it was appropriate to proceed. Maybe that is where we should start from. Would the Minister delay further debate on this until the findings of both those pilot programmes are complete and available to her Department and all Members of both Houses and relevant committees of the Oireachtas. Surely that would be the correct, scientific approach if we are to make the best possible laws in this House.
I am welcoming it but I hope that in the Dáil we will see an actual sunset clause inserted. What we have now is a constraint on the period of renewal but the legislation still allows for indefinite renewal on an ongoing basis. I acknowledge that it is a step forward and improvement on the Minister's part, but I would like to see a sunset clause.
I want to clarify a number of incorrect statements. My Department will monitor activity under the proposed new provision and an assessment of the impacts will be carried out before any decision is taken on continuing this measure beyond the pilot phase. Records will be kept. Officials from my Department, National Parks and Wildlife Service staff, are out working very hard every day, and they work very closely with the local authorities. I want to make sure people are aware of that.
I move amendment No. 60:
In page 12, between lines 13 and 14, to insert the following:
“(c) The regulations set out by the Minister under Section 8 of this Act will be laid before the Joint Oireachtas Committee on Arts, Heritage, Regional, Rural and Gaeltacht Affairs for consideration.”.
This is to clarify a number of points that have been raised. We have been told that records will be kept and regulations will be put in place on husbandry and the way things are carried out. We have also been told there will be regulations on, for example, the amount of growth that will be cut. The Minister has given indications of policy intent on the kinds of regulations she envisages. We have pushed strongly to have those provisions inserted into the legislation, which is my preference, but if the various issues we have raised are to be addressed in regulation, and we have been told they will be, we ask that the regulations would be sent for scrutiny before the Joint Committee on Arts, Heritage, Regional, Rural and Affairs for consideration. We are asking that there be an oversight process for these regulations. My preference would be that some of the concerns we have raised would be addressed in primary legislation but if they are to be addressed in regulations instead, let us ensure there is oversight and scrutiny of these to ensure they deliver on the stated and hoped-for intents.
If we are to look at a pilot period, for example, and regulations in respect of a pilot period, we would assume that we would learn from that. The Minister has indicated she will keep records and information will be gathered from it. We would imagine that information would lead to change in the regulations before they were extended. The Minister just stated that there would be a review and an examination of impacts before making any extension. That would potentially necessitate a change to regulations. I am stating similarly where new experiments are conducted on hedgerows, those regulations would also be put before the relevant committee for discussion and scrutiny.
I welcome the Minister saying that there will be no changes to the legislation until the regulations have first been issued. That is positive. Is the Minister's intention to do the regulations through statutory instrument?
The answer to Senator Humphrey's question is yes.
The regulations will be laid before the Houses. The Wildlife Act, section 8(4) states that; it is not practice to lay regulations before a committee. They will go before both Houses and the primary legislation should not specify which committee.
For clarity, I asked the Minister two questions and the answer to both is yes. One is that the legislation will not be enforced until the regulations are passed and the regulations will be done by statutory instrument.
I move amendment No. 61:
In page 12, between lines 13 and 14, to insert the following:
“(c) Any subsequent changes to the regulations under Section 8 of this Act will be put before the Joint Oireachtas Committee on Arts, Heritage, Regional, Rural and Gaeltacht Affairs for consideration.”.
I move amendment No. 62:
In page 12, between lines 13 and 14, to insert the following:
“(5) The Minister shall have regard to the objectives and actions in the All-Ireland Pollinator Plan 2015 to 2020 in making regulations under Section 8 of this Act.”.
I second the amendment.
The plan has been written by Dr. Una FitzPatrick in the National Biodiversity Data Centre in Waterford. It is an excellent plan. She has consulted a huge number of stakeholders, particularly the Bee Federation of Ireland, to input into the pollinator plan. When we talk about pollination, we are talking about a number of different species that pollinate and the importance of pollination in Ireland for food growth. Only recently, I heard a story of a tillage farmer in Kilkenny who has diversified and is growing pumpkin. He requested that a beekeeper in Kilkenny bought some of his stock to pollinate in order to get the best pumpkins possible.Pollinators are absolutely essential not only for the growth of food sources but also the growth and support of biodiversity around the country. I refer to an earlier debate in which we discussed the importance of pollinators in the supply of food for bees in the months of July and August. Pollination is critical. This plan, if the Minister or officials in her Department read it, sets out very well what Ireland should do to meet and comply with its EU obligations. Senator Alice-Mary Higgins has requested that the plan be given teeth and some foundation whereby it would be recognised in policy-making and legislating in the future for the betterment of biodiversity, farming, gardens and the country generally. I hope the Minister will take note of it as it is an excellent report which needs to be recognised. I hope she will also support the amendment.
I hope the Minister will accept this, but I very much doubt that she will. It seems that, by accepting this excellent amendment, she would actually be going against the thrust of some of the legislation. She has blissfully ignored the plight of bees. We are now in a situation where there are practically no wild bees in this country. All of them are cultivated by beekeepers who are not happy about this legislation. They are completely against it.
I have received correspondence from the president of the Federation of Irish Beekeepers Associations. It talks about how he had been watching farmers cutting down hedges outside the times permitted and that they are getting in contractors. The contractors are - she highlights it by capitalising the word - "FLAILING the hedges, not cutting them, already outside the permitted nesting time," resulting in damage to hedges which consist of willow, alder, chestnut, whitethorn, blackthorn, gorse, ivy and all other species of native trees and briars which all produce food which sustain the pollinators, bees and birds, throughout the years. It takes 15 years for a whitethorn to recover having been flailed and cut.
The correspondence reads:
Even now, around the country, farmers are cutting hedges and ditches all over their farms, setting heather on fire on the hills outside the permitted time, totally against the law but there isonly one case I know where the local farmer was fined 3500 euro for doing so, but if this bill goes through, farmers will have another few months to do as they please and not care about nature.
These are very significant points. I ask the Minister or her advisers to comment because what is being alleged is that farmers are replacing the strain of clover in their fields that is particularly attractive to bees with another main crop for a different pollinator that is not good for bees. They are doing this while acting on advice from Teagasc. It seems extraordinary that farmers are being advised by one Government agency to replace one strain of clover which is attractive and beneficial to bees with another that is not attractive or beneficial to bees. That seems absurd and I wonder if the Minister will comment on it. There is much more lyrical stuff about blackberry tarts and gorse bushes in flower and so on, but I will leave that aside.
Further correspondence from the Federation of Irish Beekeepers Associations, the group to which I have already referred, states the value of pollination services in Ireland is estimated at €53 million a year. It pays tribute to Senator Alice-Mary Higgins and the report in her name. It notes that the proposed changes to section 40 will allow the cutting of hedgerows from 1 August annually, rather that from 1 September. It will also, as we know, extend the period to 31 March. This is capitalised and headlined in the letter - "THE FEDERATION OF IRISH BEEKEEPERS' ASSOCIATIONS CONDEMNS PROPOSALS IN HERITAGE BILL 2016 TO EXTEND HEDGE-CUTTING AND BURNING PERIOD BY TWO MONTHS." The Bill totally ignores sectors such as beekeeping. As far as I can make out, there is no reference to beekeeping at all in the legislation. Bees are not even mentioned once, even though they are under threat worldwide. The Bill also ignores the fruit sectors which rely on pollinators and which "in turn rely on pollen in August to survive throughout the winter. Ireland's hedgerows are a vital source of pollen and permitting a blanket cutting of the hedgerows in August will greatly endanger the bee population". The federation is calling on the Minister to think again on the issue.
The federation gives a list which might be of interest of crops in Ireland that are pollinator-dependent. They include apples for eating and cider, blackcurrants, pumpkins as indicated by my colleagues, strawberries, courgettes, marrows, blueberries and raspberries. "Blueberries" is the American name. In County Laois we know them as "fraochán". The last on the list is cultivated blackberries which is probably the reason for the reference to blackberry tart. In addition to these outdoor crops, indoor crops which are pollinator-dependent include tomatoes, cucumbers, raspberries and bell peppers. Bees absolutely depend on hedgerows for sustenance. They provide essential pollen and nectar for them to store. The correspondence reads: "They benefit especially from the long, late flowering blackberry crop in the hedges, which would be decimated by earlier hedge cutting".
The letter states: "WE CANNOT AFFORD TO LOSE ANY MORE OF THESE VITAL RESOURCES FOR OUR POLLINATORS ... WE RISK LOSING MANY OF OUR CROPS IF WE LOSE OUR POLLINATORS". I think many people just accept that fruit and vegetables emerge year after year and never think of this almost invisible action of pollination that takes place. It is vital to the production of most, if not all, species of fruit and vegetables. I strongly urge the Minister to take into account the all-Ireland pollinator plan which is essential. Inclusion of the amendment in the legislation would give some degree of respect and recognition to the threatened bee population of Ireland.
It might be helpful for all Senators to realise we have about 12 amendments left and just over an hour in which to deal with them. We may end up not getting to all of them and obviously we would prefer to talk about them. I, therefore, ask Senators to be relatively brief in their contributions and we might then get to all of them. Otherwise, the debate could be guillotined, which would not-----
They are more likely to get through than the others. Senator Kevin Humphreys wanted to speak. I will let Senator Alice-Mary Higgins speak first because it is her motion and she should have been able to speak. I will call Senator Marie-Louise O'Donnell. I ask Senator Alice-Mary Higgins to be brief.
As the proposer of the amendment, I am hopeful it will be accepted and receive support across the House. We have all heard from the beekeepers of Ireland in their advocacy. It is clear that the protection of bees and beekeeping is not in any way a whimsical issue. Beekeeping is a key activity in rural Ireland and our pollinator plan is an excellent document. It the was the subject of extensive consultation and there was an input from farming groups of every kind and type.It has had inputs from communities across Ireland. The All-Ireland Pollinator Plan is an excellent piece of work on the part of the Government and it should be proud of it. I ask the Minister to be proud of that work and of the significant targets set out in it. This amendment is not prescriptive but simply proposes that the Minister would have regard to the national pollinator plan. It is very reasonable.
Others have spoken at length about the role of pollination in respect of our crops and so forth. These are core issues for farmers if we move towards high value goods and market gardening, which is effectively the future for much of Ireland's farming. I can give a small example which resonated with me. It takes 20 visits from a pollinator to form a full correct apple. One might have an apple that tastes fine but if one wishes to have an apple one can sell and which will meet the various standards that are demanded in different shops, 20 visits are required. There is a real concern that if pollination is compromised the output of orchards, market gardeners and farmers, and the marketability of their product, will be impacted directly. Potentially, we face large scale food wastage as well as economic loss. We heard previously about pumpkins. Basically, higher value, high input crops are crucial. In fact, in many parts of the world bees are moved around actively to encourage positive pollination.
We have a good pollinator plan in the Government's plan. We have opposed the Government on various other matters but, in fairness, neither I nor anybody else here drafted the plan. The plan represents the input of all groups in society, including the farming community, so it would be appropriate that the Minister would have regard to it when she draws up her criteria and regulations. I strongly seek the support of the House on this. It would be strange not to support regard for the All-Ireland Pollinator Plan. To refer again to the collective good, there are certain tillage crops that do not depend on pollinators, but on wind pollination. However, when we develop our national agricultural policy and when we make the case to Europe for that policy we must look to the wider, collective good. I urge all farmers, including those who might not be directly affected by the pollination issue, to have regard and consideration for their fellow farmers and to ensure we have a robust and effective pollinator plan. I will press this amendment strongly and I hope it will receive support across the House.
There has been a 50% decline in the bee population since 1980 and that has the potential to have a negative impact on food production, as outlined by Senator Higgins. If we wish to be fair to all of the farming community, especially farmers in the fruit production area, we must ensure protections are put in place. The amendment simply provides for having regard to the plan. I would prefer if it were stronger, but there is a need for it to be included. The pollination plan needs to be considered. Senator Norris mentioned Teagasc earlier. Among the Teagasc guidelines for hedge cutting is a recommendation that hedge cutting should take place between January and February to avoid destroying the food supply of seeds and berries in the autumn for pollinators. Even our experts in the agricultural sector are saying we should be careful here-----
According to National Geographic, if all the human beings left the planet it would flourish but if the bees left it would die. It is very interesting. I remember reading that years ago as a young person, but it is coming to fruition. Two weeks ago I saw hundreds of beekeeepers gathered outside the Dáil. I knew instantly that the Bill was flawed. Otherwise, they would not have arrived. I have read everything they have sent us and I agree with everything Senator Norris has said. I also agree with Senators Ruane, Grace O'Sullivan and Higgins on this. It must be included. Beekeepers do not gather outside the Dáil unless there is something amiss, wrong, omitted or flawed. In this instance, we should re-align and include the pollinator plan to ensure there is protection in this area. I hope the Minister can see a way to do it.
The main forage for bees in August is undoubtedly heather, followed by herbaceous plants such as knapweed. The main hedgerow nectar resources would be provided earlier in the year by species such as willow, blackthorn and hawthorn.
The All-Ireland Pollinator Plan 2015 - 2020 was published in 2015 and includes a strategy to address pollinator decline and to protect pollination services on the island of Ireland. Almost 70 governmental and non-governmental organisations agreed a shared plan that identifies more than 80 actions to make Ireland pollinator friendly. I agree with Senator O'Donnell that we would not exist without the bees. It is absolutely true. I pointed out on Committee Stage that any regulations I will make under section 8 will take account of our obligations under the EU birds and habitats directive, other international nature conservation conventions and the Aarhus Convention on access to information on the environment. It would not be normal practice to list these various directives or conventions in legislation. EU directives are binding on member states, so there is no need to provide for them separately in legislation.
The All-Ireland Pollinator Plan 2015-2020 includes a strategy to address pollinator decline and protect pollination services on the island and its recommendations will be taken into account in developing the regulations. A number of plans inform our decisions, for example, the national biodiversity plan and the action plan for rural Ireland. These are all taken into account. However, it is not proposed to list them in the legislation. That is not to say that we do not think they are important or that we do not take account of them. I am trying to strike a balance here. The input of the specialist groups and experts will be taken into account when reviewing the pilot project.
At one point the Minister appeared to be responding to a previous Committee Stage amendment in respect of EU regulations. There is no amendment here regarding EU regulations. My concern with regard to the pollinator plan is the fact that it is not statutory and is not an EU directive or obligation. In fact, it was made clear to me during my meeting with the Department's officials that it was not statutory or an obligation. That is the reason I am seeking an indication that it is taken seriously. It is not enough simply to state that it exists-----
I know. I am asking the Minister to consider supporting the amendment, which would include the plan. It is at the heart of this issue. The Minister talks about striking a balance. I ask her to ensure that we are not striking a blow in respect of the pollinators of Ireland, our bees and birds and the reproduction of natural life. Without going into detail, and all of us could dwell on this, we know that the red berries are a key source of food in August. They need to be available for bees.We have heard that is what provides the protein, which allows bees to build up their bodies in order that they can survive the winter at a time of significant attrition. It is an extraordinarily reasonable amendment, which is weaker than I would like. It only asks for the Minister to confirm that she will have regard to the pollinator plan, that it will not be subsumed to other commercial interests and that, for example, it will be placed on the agenda for consideration. It is a mild amendment, which I will have to press. I regret that she is unable to take it on board.
Ivana Bacik, Gerard Craughwell, Maire Devine, Paul Gavan, Kevin Humphreys, Billy Lawless, Pádraig MacLochlainn, Gerald Nash, David Norris, Marie Louise O'Donnell, Grace O'Sullivan, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Paul Daly, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, John O'Mahony, Pádraig Ó Céidigh, James Reilly.
This is a dangerous amendment and I am not sure to what degree the Government is aware of what it is doing. I have been contacted by various people who are extremely alarmed at it. It appears to contradict sections of the Wildlife Act 2000. That Act is specific in requiring oversight of hedge cutting for health and safety purposes during the nesting season and the amendment removes that protection.It is very regressive. It could result in a year-round roadside hedge-cutting free-for-all in the name of health and safety, which is one of the things the Wildlife (Amendment) Act 2000 was intended to prevent, so the Government proposes to reverse original Government policy. I very much hope Fianna Fáil will listen to this and make the appropriate decision as to which way to vote.
Section 40 of the Wildlife Act restricts hedge-cutting from 1 March to 31 August, the closed period, in order to protect wildlife. Road safety issues during the closed period are defined by the roads authority. The roads authority has the power to issue notices to landowners to deal with health and safety issues on public roads under section 70 of the Roads Act. There is some uncertainty as to whether a landowner who is served a section 70 notice by the roads authority during the closed period is exempt from the Wildlife Act. An amendment was proposed by Senators Grace O'Sullivan and Lynn Ruane to clarify this situation by stating explicitly that notices served under section 70 of the Roads Act would be exempted, and the Minister agreed in principle to this amendment on Committee Stage last November. Section 8(2) of the Heritage Bill, as currently amended, permits landowners to cut roadside hedges in the month of August subject to ministerial regulations. Road safety issues during the month of August are self-defined by landowners but are subject to regulation. The new Government amendment goes beyond just exempting section 70 notices; it appears, at least to me, to remove the restriction in section 40 of the Wildlife Act on hedge-cutting by landowners for health and safety purposes. Road safety issues all year round would be self-defined by landowners with no regulation. This is a potentially disastrous measure-----
-----whereby landowners could decide to cut hedges without any regulation at all. Section 8(2) of the Wildlife Act would therefore be completely overridden. The amendment to section 8(2) of the Heritage Bill is intended to make sure that road safety issues during the month of August are self-defined by landowners but are subject to regulation, and this regulation is now being removed. What was proposed and agreed in principle by the Minister last November was that road safety issues covered by a section 70 notice would be exempt from the Wildlife Act, but the actual effect of this amendment is that road safety issues all year round would be self-defined by landowners with no regulation, and for that reason section 8(2) of the Wildlife Act would be overridden. This is a disaster. I am not sure whether it was intended - I cannot believe it was - but having pointed it out now, I hope the Minister will rethink her position on the amendment, which is a last-minute effort and is highly dangerous. We on this side of the House at least have been very much warned against it and asked urgently to oppose it in the House.
As Senator Norris just outlined, it has really shocked us to see this amendment to the Bill. We had felt we had made progress over the course of the past months, and then we see this, which we feel is absolutely regressive. I would like to hear from the Minister exactly what she intends by tabling this amendment. The amendment reads "Disapplication of section 40(1) of Act of 1976 to cutting etc.". When does the expression "etc." come into such a Bill?
When I saw the expression "etc.", I asked myself what it meant. We are on Report Stage of the Bill and there is a proposed amendment referring to "cutting etc.". What does it mean? This is absolutely regressive. I am very concerned that every step we felt we had made with the Minister over the course of the past few months has now been obliterated. I very much hope she can give us some sense that we are not misreading the amendment and that there is something in it that will help us to understand because, as it stands, my concern is that we are back to square one. The Bill, as Senator Norris said earlier, is absolutely grubby and it needs to be thrown in the bin. I am very frustrated to see what the Government has proposed here. It represents destruction of heritage, destruction of our hedgerows and destruction of the beauty of the Irish landscape. It is an absolute disgrace. I am appalled and upset by what has happened today. We are on Report Stage. We are running out of time. Our natural heritage, the acres and acres of hedgerows of our hedgerow system, pollination, birds - every aspect of our hedgerow system I see being eroded in one late, miserable, fell swoop, and I am very disappointed.
I wish to be very clear about what this amendment proposes. I question whether it does genuinely arise from Committee Stage. I ask that the Minister not suggest in any way that the amendment represents an extension of or any aspect of the spirit of the amendment we proposed on Committee Stage. On Committee Stage, my colleagues and I supported an amendment which sought to deal in a very practical way with section 70 orders, which allow the cutting of hedgerows. We engaged genuinely with issues of road safety.
Let us be clear that there are two matters here: section 70 of the Roads Act 1993 and section 40(1) of the Wildlife Act. It is crucial we get this right. Section 40(1) of the Wildlife Act concerns the protection of our wildlife and sets out that: "It shall be an offence for a person to cut, grub, burn or otherwise destroy, during the [closed season], any vegetation growing on any land". Subsection (2) of section 40 of the Wildlife Act offers a number of exemptions, mainly reasonable ones. Meanwhile, section 70 of the Roads Act 1993 states that where there is a road safety concern, a landowner is obliged to take reasonable action to address that concern. There is the natural heritage imperative and the obligation in respect of road safety. This system has been in place for over 24 years. The Roads Act 1993 came subsequent to the Wildlife Act 1976 and had regard to it. According to the system we have had in place, section 70 orders may be issued by a local authority to allow a landowner to fulfil his or her section 70 obligations on road safety. That is the balance that has been struck. In 2000, we sought to affirm further that balance and we produced legislation to make very clear the importance of the balance between regulation and the duty to safety.That is why we have a system in place which allows a landowner to take action where there is a road safety issue. Such an order can be issued 365 days of the year. We propose to go further. We recognise that, in many cases, a landowner or concerned citizen might identify an issue before the local authority does. We seek to provide that such a person would be able to request a section 70 order from a local authority, regulated under clear criteria, permitting the individual to take action to ensure road safety. In good faith, we have looked to strengthen the section 70 order permit.
The provision the Minister has put before us goes against the spirit of what has happened over two decades. It is a move to get rid of the order and permit issuing system altogether. It states that under section 42 of the Wildlife Act, we will add, as an exemption, any landowner who feels he or she has a concern about road safety. Such landowners are, therefore, to be exempt from obligations under sections 40 and 41 of the Wildlife Act. That means cutting, grubbing, burning and destroying are back on the table. When we repeal the obligations, we will make it clear that it is now permitted to do these things and all of the changes we have put in place will become meaningless. It does a deep disservice to the amendment proposed by Fianna Fáil which sought to provide for a reasonable accommodation on roadsides in the month of August. This is an extraordinarily opportunistic move. I know that the Minister will talk about a tree falling in the middle of the night and ask how people will get a section 70 order at 5 a.m. Trees have been falling in the middle of the night for 23 years, including in the 16 or 17 years since the Act of 2000. We have moved on and accommodated it. Now, right before we come to the conclusion of this debate, we are seeing an amendment being snuck in which will allow any landowner to take any action he or she personally deems to be appropriate for health and safety reasons in respect of a roadside hedge at any time of year. Regulation is out the window, as are section 70 orders. The role of the local authorities is being absolutely disregarded. The amendment is an insult to them and this House. It is an insult and an injury to our natural heritage. It is another abrogation of responsibility. We are washing our hands. It is shameful that a Minister with responsibility for heritage would seek to gut the Wildlife Act of which she is guardian.
We have nearly 25 years of history in respect of this matter. Fianna Fáil, Fine Gael and the Labour Party have been in government during that time and all three parties made progress in protecting the environment. The unintended consequences of this amendment - I believe they are unintended - will be enormously harmful. It is not that there are hundreds and thousands of farmers lined up and ready to drive a coach and four through the legislation. The vast majority of farmers are responsible. However, the legislation is in place to regulate those who do not care about the environment and will not protect our heritage and hedgerows. The amendment will allow a gap to open up. I, therefdore, ask the Minister to reconsider and redraft it.
It has become clear over the course of the debate that the Bill is with the wrong Minister. It is not about heritage. We have spent more time discussing road safety and agricultural matters. Some 80% of tourists to Ireland talk about our green economy, the beautiful countryside, hedges and hedgerows. I ask the Minister to withdraw and reconsider the amendment. It is disingenuous to propose an amendment at this stage that could have such severe consequences for our natural heritage.
I would like to hear clarification from the Minister. I would like to hear what she perceives the consequences of the amendment being omitted to be. I have heard everybody else's opinion, but what would be the consequences if the amendment was not accepted today?
I asked this question earlier. Who is responsible for hacking hedges along a motorway? If the county council, the Government or some State agency is responsible, God help us in the free-for-all when it comes to other hedges.
I agree with everything Senators Grace O'Sullivan and Alice-Mary Higgins have said. The eye is off the ball. Bringing in the issue of road safety is crazy. Everybody knows that it has to do with speed and substances. Senator Grace O'Sullivan puts it well when she describes it as the destruction of who and what we are. I can see it every day, done by supposed agencies of the State. If it was a free-for-all engaged in by individuals, where would we be? I would like some clarification and security. My flip-flopping friends in Fianna Fáil might like it also.
On amendment no. 63, Senator Alice-Mary Higgins, with our group, would like to propose that the Minister consider rewording the amendment to read: "cutting etc. undertaken pursuant to an order under section 70 of Roads Act 1993". We believe this would address the concerns expressed which would be satisfied if the Minister was to consider it.
This matter was raised on Committee Stage. I was asked to bring the Wildlife Act into line with the Roads Act. The House is aware that there is a provision under section 72 of the Roads Act which obliges landowners to ensure a tree, a shrub, a hedge or other vegetation on their land is not a hazard to road safety. There is also a provision which allows a local authority to serve notices on landowners to undertake works such as hedge cutting and clearance for safety purposes along public roads. However, these provisions under the Roads Act conflict with the exempted activities under section 40 of the Wildlife Act, whereby such works may be undertaken by public authorities such a local authority but not by individual landowners.Therefore, I have brought forward this amendment which provides that under the provisions of section 70 of the Roads Act works to be undertaken for safety purposes along public roads by landowners are considered to be an exempted activity under section 40 of the Wildlife Act. The amendment will harmonise both pieces of legislation and eliminate the confusion that has arisen on the issue during the years.
I understand the concerns raised by Senators. However, the fact is that at present there is a conflict between roads legislation and the wildlife legislation. In my view, it makes no sense that there would be a direct conflict and contradiction between two separate pieces of legislation. It is important for good governance that the entire body of law which regulates how the citizens of this State are governed is clear, unequivocal, consistent and joined up. To have it otherwise would lead to confusion, misunderstanding and inconsistency for citizens in terms of practical adherence to the law and for courts in terms of interpreting and dealing with breaches of the law. At present, if a landowner becomes aware that some vegetation on a roadside hedge belonging to him or her is giving rise to a significant hazard to people using that road and could cause an accident, possibly resulting in serious injury or death, what does the law say to that person? Under the Wildlife Acts, as things stand, it could be an offence for the owner or occupier to take reasonable steps to deal with the hazard during the prescribed closed period. However, on the other hand, that same owner or occupier is obliged under section 70(2)(a) to take all reasonable steps to ensure that such vegetation is not a potential hazard. What we are talking about here is something that is a very obvious potential hazard to road users. This divergence in law makes no sense. The amendment I am bringing forward here is designed to harmonise the two statutes and clear up confusion and conflict. The roads provision is already on the statute books. I will make a couple of points about the provision. First, it can only be invoked where there is a hazard or potential hazard and, second, the owner or occupier may only take reasonable steps. The key word is "reasonable."
If a landowner cuts a roadside hedge during the prescribed period, other than for the purposes of dealing with road safety, or takes steps which are not reasonable then that person is guilty of an offence under the wildlife legislation. This amendment seeks nothing more than to introduce certainty and avoid confusion. The conflict has been identified to my Department. There have been reports from wildlife officers saying it is a very grey area which needs to be clarified. What I am trying to do here is bring clarification to the matter. If this amendment is not accepted, a person is obliged to remove unsafe growth or branches but is also prohibited from doing so. That is not fair to anybody because they are being told, on the one hand, they have to remove it and, on the other, they are being told they cannot do it.
Nothing we can do here will change the obligations under the Roads Act which apply all year round. All we are seeking to do is to remove the conflict which says one must deal with safety issues but at the same time during the closed period one cannot. The Roads Act is saying one must do something with a particular branch because it is hanging out on the road, it is dangerous and will cause an accident. On the other hand, the Wildlife legislation is saying if it is during the closed period it cannot be touched. All I am addressing here is exceptional circumstances in the case of road safety and where it is hazardous. I am not talking about cutting the hedge here, I am taking about certain exceptional circumstances that are outlined there. The fact that-----
-----confusion and conflict has existed for nearly 25 years does not mean we should ignore the issue forever. Regional staff of the NPWS of my Department have had difficulties in understanding where they stand when dealing with issues they come across in pursuing their duty. It has been brought to my attention that they cannot enforce the law because they are unsure where they stand. To help clarify issues, advice received from my Department's legal adviser pointed to the conflict which has led to confusion. I am now trying to implement the legal advice in this amendment. I am not trying to do anything here that is not-----
What I am trying to do here is regulate and change this to make sure it is in compliance with the Roads Act. It should not interfere with any other part except when there is a hazardous danger. It is very clear what a hazardous danger is.
I want to be very clear. I am not trying to ruin all the hedges in the country. The legislation refers to trimming back one season's growth on the side of the road. This relates to the side of the road. It does not relate to every hedge in the country. It is the side of the road.
If there is a tree hanging out over the road that will cause an accident, please do not put an individual, whether it is a farmer or landowner, in the awful position where, on the one hand, he or she has to comply with the Roads Act and, on the other hand, he or she is contravening the Wildlife Act. That is all I am trying to do. This idea that I am trying to sneak something in to allow people to cut hedges is absolutely outrageous. I have been here for 20-something hours now at this stage. I have tried to work with the Seanad.
I totally accept the amount of time the Minister has spent in the Seanad. That is why I referred to unintended consequences. The Minister has outlined the process. The Minister's offices have highlighted the contradiction in law.
I also have a point of order that I have to make. The Minister stated she was speaking about one month. However, as I understand it - the Minister can correct me if I am wrong - this amendment would relate to 12 months of the year.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Paul Daly, Robbie Gallagher, Maura Hopkins, Gerry Horkan, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly.
Ivana Bacik, Maire Devine, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Pádraig MacLochlainn, Michael McDowell, Gerald Nash, David Norris, Brian Ó Domhnaill, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Marie Louise O'Donnell, Grace O'Sullivan, Lynn Ruane, Diarmuid Wilson.
As it is now past 5.30 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That the Government amendments undisposed of are hereby made to the Bill; that Fourth Stage is hereby completed; that the Bill, as amended, is hereby received for final consideration; and that the Bill is hereby passed."
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Mark Daly, Paul Daly, Aidan Davitt, Maura Hopkins, Gerry Horkan, Billy Lawless, Tim Lombard, Michelle Mulherin, Jennifer Murnane O'Connor, Catherine Noone, Brian Ó Domhnaill, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly.
Ivana Bacik, Gerard Craughwell, Maire Devine, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Pádraig MacLochlainn, Michael McDowell, Gerald Nash, David Norris, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Marie Louise O'Donnell, Grace O'Sullivan, Lynn Ruane, Fintan Warfield.