Conor Murphy (Sinn Fein)
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I move amendment No. 1:

In page 3, to delete lines 26 to 31 and substitute the following: " "infrastructure” means any infrastructure that enables essential facilities and systems of the State to function effectively and includes, but is not limited to—

(a) housing,

(b) health facilities,

(c) transport facilities, including ports and airports, and transport systems, including roads and railways,

(d) energy generation, transmission and distribution systems, and

(e) water supply, wastewater and waste management systems;".

Cuirim fáilte roimh an Aire. We raised in a previous debate the extent of what was considered critical infrastructure. I move this amendment because there are very obvious things, pressing things, which we speak about and debate every day in this Chamber and, I am sure, in the other Chamber in relation to housing and healthcare provision and facilities for such, and there is the idea that they would not be considered critical infrastructure at a time when there is such huge pressure, particularly on housing but also on healthcare. I know the Government has argued that there is flexibility to include healthcare and housing, but then why stipulate some areas and not stipulate those two areas? That is the question. Arguably, housing is the most critical infrastructure that is required. It is the primary crisis facing the Government and has been for some time, so I do not see the logic in not naming it in the Bill. We put forward this amendment in the hope that the Government would reconsider the position it had outlined previously and consider including these two areas in the listed parts of critical infrastructure in the Bill.

Victor Boyhan (Independent)
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I support these amendments. They make common sense. I thank the Minister and his officials for coming to the House and for the work they have put into this legislation.

Today we had great fanfare from the Government press office, with the Minister for housing announcing the housing infrastructure investment fund, HIIF. If there was ever a case to have housing as infrastructure, it was today with that announcement. Everyone in the Seanad seems to have circulated it to all 31 local authorities because I have seen ten iterations in different forms, but this is the crystal-clear one, the Government Information Service one which sets out the great announcement.

Housing is infrastructure; it has to be infrastructure. It is a Government commitment. I have served for two terms on the Oireachtas joint committee on housing, planning and local government. Everyone in this room and this Parliament knows the importance of housing infrastructure.

The Minister will know that along the east coast we have a major deficit in sewerage and wastewater infrastructure. He will know how that has impacted housing and how An Bord Pleanála, now An Coimisiún Pleanála, indicated that it could not grant permission for many housing projects over the past ten to 15 years because of the lack of capacity in the sewerage system serving the east coast all the way over to Poolbeg. Again, there was the need for infrastructure. We were told there was this blockage in the infrastructure in relation to sewerage and water.

We all know about our health, the major health concerns and the plans in health. We have read in various iterations of legislation on planning that there are what are termed "serial objectors", or people who are frustrating the planning process in developing major critical infrastructure like health services. That is an important priority.

We see the major deficit and shortages in transport infrastructure. We do not see an eastern bypass, a circular road right around the coast, yet it has been on the boards for years. We look at Galway. I could tell the Minister about loads of projects where major deficits of infrastructure have frustrated the roll-out and development of roads and facilities that bring on jobs, which are so essential to our economy, and housing.

We then talk about energy and the need to get solar, wind and wave energy. We are again told - and I agree to a certain extent about this, and others have lectured us on it - that there is this hold-up in terms of critical energy because of the infrastructure. We are not getting on with meeting our objectives in terms of producing alternative energy, and that is also a problem.

We see this in areas of agriculture, but I will not talk about agriculture because that is not part of this amendment.

Clearly, however, housing is an issue. I welcome this amazing commitment and ambition. It puts the people's money where the Government wishes to go in relation to the housing infrastructure investment fund. I did not make that title up; that is the Government's position. We have a housing infrastructure investment fund of millions of euro, with 82 projects in the first phase announced today. I welcome all that. That is not a criticism. We have challenges around health facilities and transport facilities, including our ports. We see the Minister talking about lifting bans in Dublin. We see issues around the various ports. We see the ambition for the western rail corridor, which I also support. All of these are critical components of infrastructure and layers of transport for goods and people and for our economy, and we have to invest in them all. Let us not be afraid to call it infrastructure.

The Government, as the Minister has indicated previously, will set this out. Nothing is set in stone. He needs a certain amount of flexibility in relation to these matters. However, we need to be clear, concise and strong in our messaging, and I never doubt that in the Minister. He brings great clarity to everything he does in politics. I have observed him for a considerable period, and one of the great things I admire about him is that he takes decisions.He makes those decisions simple and brings great clarity to matters. I do not think it is unreasonable to send out a clear message to the citizens, the people the Minister represents. None of this conflicts in any way with Government policy or with the programme for Government. We need to send a message that the Government sees housing, health provision, transport, energy transmission and distribution systems, the water supply and wastewater management as key critical components of a vision and a plan for infrastructure. There should be some degree of certainty and clarity on these issues and this legislation. There may be another way of doing so outside of this amendment. I would welcome the Minister's considered view on these matters.

Cathal Byrne (Fine Gael)
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The Minister is most welcome to the Chamber this evening. I have said on the record of the House before that I believe this to be among the most important legislation that Senators will debate and discuss during the entire term of this Seanad. It is really important that, from the outset, we acknowledge the work the Minister and officials in his Department have done, together with the various task forces the Minister has also established. I am a member of the Oireachtas infrastructure committee. Over the past 13 or 14 months, we have examined a number of the key challenges the State is facing in delivering critical infrastructure projects.

On the amendment, I accept that there will always be projects that are considered critical, depending on where you are and how you look at things. I see the Enniscorthy flood relief scheme in my own town as critical infrastructure. I have raised this with the Minister previously and, in fairness to him, he wrote back to me saying that there is flexibility within the legislation as currently presented to designate various projects as critical infrastructure. He stated that, rather than having a prescriptive list, there must be flexibility to account for what might be considered critical in the future.

I am particularly drawn to the wording in section 3, which speaks about how a project can be designated as critical infrastructure. Section 3(3)(b) states that among the matters the Minister must consider, whether now or in the future, as to whether a project can be deemed critical is "whether delay to, or disruption of, the delivery of a project or programme, or failure to deliver a project or programme, may have adverse economic or social consequences for the State". The provision of housing, healthcare, transport, energy, water and wastewater management systems can all be captured within that as failure to deliver these may have adverse economic or social consequences for the State.

When this legislation was originally proposed, given the enormous challenges we have had in Enniscorthy in delivering the Enniscorthy flood relief scheme, it was my view that there may need to be amendments, which I would have put down myself, to designate flood defences as critical infrastructure. However, based on the Minister's correspondence and the proposed wording of the legislation, I am now satisfied that those projects and other critical projects in the areas of housing, health, transport, energy, water supply and wastewater can be captured by the legislation as currently presented.

I fear that, if we get too prescriptive as to what exactly we can do, we will be tying the hands of the Minister or future Ministers in this regard. Making our definitions too broad could result in projects not having flexibility to adapt. I would hate to see the goal, that is, trying to speed things up, being frustrated and the Minister's hands being tied because we prescribed too specific a list. The definitions have to be as broad as possible. The Minister and future Ministers have to have as much flexibility as possible. We must also always be conscious that, in order to designate something as critical infrastructure under the legislation, a vote in Dáil Éireann is required. There is therefore a safeguard. For a project to be designated as critical infrastructure, it will have to be voted through in the Dáil.

I have a question for the Minister. What happens if a project has been designated as critical infrastructure, a designation order has been made to a public body to speed it up and that public body does not fully comply or delays exceed what would be reasonable given the State's designation of the project as critical? What safeguards are in place? If there is a difficulty with a public body in respect of a project, such as a health facility or housing, what happens? What protections are in place for the public and the taxpayer to make sure there is follow-through and sanctions and penalties? I know that, in theory, any public body can be brought before the Committee of Public Accounts but what exactly are the consequences if a body does not live up to what it is meant to be doing in respect of a critical project?

Victor Boyhan (Independent)
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I will just come back in to address Senator Byrne's contribution. I agree with all of it. I just wanted to come in before the Minister replies. The Senator was right to say that these issues, such as housing, transport and energy, could be "captured". That is correct. I am not advocating for anything parochial. That is right. The Minister has said that before. We cannot get into the minutiae, fine and granular issues, or parochial projects, although I do not mean to take away from the very significant damage caused by flooding in Enniscorthy and other parts of Wexford. It is important that we do not fall into the trap of being parochial, micromanaging or anticipating. Of course, there will be political manoeuvring. That is the very nature of representative constituency politics. However, I presume the Minister and the Ministers who come after him will be strong enough to resist that and there will also be accountability through this process.

The Senator also mentioned being agile and flexible. That is also important and I fully support it. We cannot be too prescriptive but we are talking about a very substantial amount of public money. We are here as elected representatives. We will come and we will go. That is the very nature of politics. We are here for a period of time. We are trying to make this legislation as robust as possible. I do not support anything parochial. It is important that the Minister and the Government have flexibility. It would not be right to be prescriptive in what we are talking about.

What I was trying to touch on is that it is important that we capture the importance of critical infrastructure and how it relates to housing, transport, energy generation and transmission, water supply and wastewater. We know that water supply and wastewater management are critically important and linked to successful applications for planning consent. There is a need for that. Housing is one of our greatest crises but we also need a vibrant, buoyant and competitive economy. That is important too.

I also want to put on the record that I am supportive of this legislation. I said that at the very outset. However, we are on Committee Stage and it is important that we tease out some of these little concerns. I can tell the Minister here and now that I am voting for this legislation. I support it. In all the years I have been here, there have not been too many Ministers who have come into this House and accepted any amendments from the Opposition. That shows an immaturity on the part of some Government Ministers who see fit to just come in here and say "Nay, nay, nay." They do not even really say it; they read it off a bit of paper handed to them from a folder. It is a case of "No, no, no". It is an insult to parliamentary democracy. Those are my few words on that.

Jack Chambers (Dublin West, Fianna Fail)
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In response to Senator Boyhan, I regret that I will be continuing that trend with regard to this amendment. I apologise for that. I thank Senator Murphy for the amendment, although I will not be accepting it. I have been consistently clear that my central priority is to accelerate the delivery of critical infrastructure and specifically infrastructure in the energy, transport and water sectors. I focus specifically on these areas because they form the foundation on which all other social and economic infrastructure depends. We will not be in a position to build the housing and health facilities referenced by the Senator in his suggested amendment without adequate energy, water and transport supplies.

By accelerating the delivery of this core network infrastructure we can drive a wider acceleration across all forms of deployment and development, including housing. However, the definition of infrastructure is already drafted in such a fashion that this legislation is not confined solely to the areas listed in section 1. This is deliberate and ensures the Government has the flexibility needed to respond to emerging and pressing priorities as they arise. The Government could, for example, designate the development of a healthcare facility as critical infrastructure if the need arose.

That flexibility provided for in the Bill is not unlimited. It operates within the clear definitions set out in the Bill and, in particular, infrastructure must be something that enables the essential facilities and systems of the State to function effectively. Furthermore, any project or programme designed under the Bill must be developed by or on behalf of the State. The legislation therefore applies to State infrastructure only and not private development. I am satisfied that the given flexibility is there in the context of the legislation as it is drafted. We have sought in all of our reform agenda to focus on the three areas of water, energy and transport because they are the underpinning infrastructure for everything that happens but it does not impede us from designating health infrastructure, for example, or something else that might emerge, within the wider definition of infrastructure.

The wider point was made around what will be the implications for a public body that does not comply. First of all, they have a duty to co-operate under the legislation. It is the law that they must. Second, we can issue a direction to the public body that it shall comply with the direction given under this section. So, there is a clear legislative direction and obligation on compliance with respect to public bodies that will be affected by this legislation. If it does not comply to a direction under the law that has significant implications for a public body. If we have a public body that does not operate under the law then there are implications for sanctioning funding and its wider operation. I do not think that will emerge because it is a very explicit direction under the legislation that is involved.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Conor Murphy (Sinn Fein)
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Yes.

Mark Daly (Fianna Fail)
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Amendments Nos. 2 to 4, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Victor Boyhan (Independent)
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We are dealing with amendments Nos. 2 to 4. I want to touch on amendment 4. That is a proposal by Senator Stephenson which states:

The Minister shall lay a report before Dáil Éireann on the rationale, criteria, decision making process used to draft the designation order as soon as may be after it is made.

I think there is merit in that. I do not know what the Minister is going to say to it. I think there is some merit. We talk about parliamentary oversight. I share the concerns about the pre-legislative scrutiny being waived but that was a request, I presume, from the Minister or his Department to the committee and the committee made that decision. There is nothing we can do about that. It does not augur well for parliamentary democracy all of the time with pre-legislative scrutiny being scrapped and pressure being asserted. To be fair, it was a request. Ultimately, the members of the committee have to make that decision but what does it say?

This is a coalition Government that controls both Houses of the Parliament and it is important we have another side. There will be a day when the coalition will not be in existence or half will be gone and another new type will be in. It is important we protect parliamentary democracy. I will have another opportunity at some other stage to talk about it and I do not want to take up time tonight. I am going to say this to every Minister who comes to the Seanad where any Government Minister seeks to cut parliamentary debate. We see the guillotine of debate in these Houses on other issues. I am not going to stray off to that because I want to stay focused on this. It is a concern and I want to flag it to the Minister. We all need to be concerned if there are powers or forces within this parliamentary democracy that somehow want to stymie and curtail different perspectives and different points of view in the legislative process. I am interested to hear what the Minister has to say on that.

I think there is merit in amendment No. 4 rather than my few words previous to that. There is merit in this. It is Dáil Éireann and we are Seanad Éireann so I do not know what people think about us suggesting something for the Lower House, but I support this amendment.

Laura Harmon (Labour)
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I want to speak to amendment No. 3. I will make some general points on the legislation. The Labour Party voted against this Bill in the Dáil. We agree that action is needed to tackle the infrastructure deficit in this country but we believe the Government has misdiagnosed the problem. This Bill would allow the Government to designate specific projects as critical infrastructure and thereby instruct public bodies to prioritise them and co-ordinate with other public bodies to deliver them. However, we strongly object to section 7 of the Bill, which would disapply the public body duty under the climate action Acts to perform public functions consistent with achieving the State's climate goals. We believe this would amount to repealing that duty by stealth and it would almost certainly be open to constitutional challenge.

Amendment No. 3 proposes:

A designation order shall be laid before each House of the Oireachtas as soon as may be after it is made, and the order shall not have effect until a resolution approving it has been passed by each such House.

This amendment would require that a Government order designating a project as critical infrastructure be approved in advance by a resolution of both Houses.This Bill opts for the negative resolution rather than the positive resolution procedures such that an order has effect unless it is annulled by the Dáil within 21 sitting days. The reason the Labour Party is bringing forward this amendment is to make sure there is proper legislative oversight of how the Bill is applied.

This Bill grants an awful lot of power to the Minister. The statutory threshold for what will be counted as critical infrastructure is not clear. It seems to be at the full discretion of the Minister. We believe this is a democratic deficit. The Minister might outline a process he envisions here today but there is nothing on the face of the Bill to stop a future Minister designating any number of projects as critical under his or her own arbitrary opinion. We are proposing this amendment to try to correct that and to provide some modicum of democratic oversight on those decisions. We really need to make sure there is adequate legislative oversight of the designation of projects as critical infrastructure.

Jack Chambers (Dublin West, Fianna Fail)
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I am not accepting these amendments. The draft legislation outlines the process by which individual projects or programmes will be designated as critical infrastructure. While I and future Ministers for public expenditure will make recommendations to Government regarding projects that may be designated, no project or programme will be eligible for the fast-track process set out in the Bill without a Government decision. In addition, as part of the designation process there is a mechanism in place allowing Dáil Éireann to overturn any Government decision to designate a given project or programme. These safeguards place significant checks and balances on the process. Although I anticipate that only a limited number of projects or programmes will be designated, requiring positive approval from both the Dáil and the Seanad for each and every designation could potentially add an additional unnecessary layer of uncertainty to the infrastructure development process. I consider it disproportionate to require every designation order to obtain the approval from both Houses.

The primary aim of the legislation is to speed up delivery of critical infrastructure in line with the action plan we published last year. When we are putting in place a framework to support this acceleration, it is important we do not add procedures and processes to the mix that actually end up costing us time through potential delays. I am of the view that providing Dáil Éireann with the option of overturning any proposed designation order is a more proportionate means of providing the necessary accountability.

Section 3 of the Bill sets out the clear decision-making process to be used for the designation. It provides that the Minister for public expenditure may recommend to the Government that a project or programme be designated as critical infrastructure. The Government may then decide to make the appropriate order and the Dáil has 21 sitting days to consider whether to annul that order. The legislation also sets out the criteria the Minister must consider when making such a recommendation. These include the need to ensure the effective and efficient delivery of the project or programme; whether delays, disruptions or a failure to deliver could have adverse economic or social consequences for the State; the extent to which the project or programme may positively or negatively impact the delivery of other projects or programmes; its alignment with the national development plan; and any other infrastructure-related matters the Minister considers appropriate.

My role will be to apply a level of constraint on the number of projects designated so that prioritisation and acceleration can be achieved for critical infrastructure. If too many projects are designated the system will not be able to respond in a manner that accelerates decision-making. It is important that we do not flood the system with designated projects. Following my recommendation, the Government will decide whether a project should be designated and will be fully accountable to the Oireachtas, as we are with everything else in the normal course of parliamentary oversight and the issue of how a particular project or programme is chosen for designation.

Given that the criteria for designation and the associated decision-making processes are clearly defined in law with accompanying checks and balances, I do not believe it is necessary or proportionate to legislate for a report to be laid before the Oireachtas setting out the specific decision-making process applied in each individual designation.

We have critical delays across many areas. I was not willing to spend a period of months going through the Oireachtas in the context of pre-legislative scrutiny. This Bill is very clear in its legislative intent. I think there is consensus on the absolute need to drive and improve delivery and acceleration with greater all-of-state co-ordination in ensuring that water, energy, transport and other infrastructure projects, which Members all care about, are delivered in a much quicker way. That is the single direction intent and I think it is complicating it with pre-legislative scrutiny in the context of serious delays and the need to accelerate delivery. I welcome the fact that the committee decided to waive pre-legislative scrutiny in that instance. I have set out the reasons for not accepting these amendments.

Jack Chambers (Dublin West, Fianna Fail)
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That is not what I meant-----

Cathal Byrne (Fine Gael)
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As a member of the infrastructure committee, it is important to note that when it comes to pre-legislative scrutiny we have a very narrow and focused remit on the infrastructure committee. That is to see what exactly can be done, as a parliamentary committee, to reduce the delays and the barriers that we have in infrastructure. We had spent many months focusing solely on that and there was a vote on the committee to waive the pre-legislative scrutiny, which was based on the idea that as a committee we had examined many of the issues that are discussed in this legislation. We also had already met virtually all of the State bodies and agencies and many other stakeholders that would be part of a standard pre-legislative scrutiny, and we felt that it was not necessary to repeat that process to look again at the same issue, which is how do we accelerate our infrastructure programme. It was not a decision just to waive pre-legislative scrutiny because we felt that it was not important or was not necessary. Instead, it was that so much of the work that would be done at pre-legislative scrutiny had already been dealt with by the committee through a sustained programme of engagements with various bodies, public bodies, stakeholders and sector representatives.

When it comes to the decision to designate and both Houses of the Oireachtas being required to engage with resolutions in order to pass a designation as critical infrastructure, there has to be a recognition that at the end of the day, there will be a vote. First there will be a decision of the Government but there will also be a vote in the Dáil around this. That vote will not just arrive.There will be a debate and discussion and then it will conclude with a vote. It is important to recognise that part too in the context of these amendments.

Laura Harmon (Labour)
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I move amendment No. 3:

In page 5, to delete lines 22 to 26 and substitute the following: “(4) A designation order shall be laid before each House of the Oireachtas as soon as may be after it is made, and the order shall not have effect until a resolution approving it has been passed by each such House.”.

Conor Murphy (Sinn Fein)
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I move amendment No. 5:

In page 5, line 40, after “completed” to insert “and to comply with relevant binding time-limits that will be issued by the Minister within four weeks of the passage of this Act”.

As most of us said at the outset, we are supportive of the idea of the Bill. We want to see critical infrastructure being done more efficiently, speedily and cost effectively. We hope the legislation in front of us will achieve those outcomes but we have added suggestions and proposals to put to it. None have been successful thus far but we continue to press the case.

This amendment proposes to insert a provision on the relevant binding time limits. This is about accountability. As we have all said, this is very significant legislation. The Government is saying that this piece of work needs to be fast-tracked. We believe the addition of time limits would strengthen that process and add a further level of accountability. If we are going to do what it says on the tin with the legislation, we need to strengthen it to make sure that is the case.

This amendment was put forward in the Dáil and was not supported. I hope that the Minister has had an opportunity to reflect on that and to see a genuine attempt to strengthen the provisions of the Bill to achieve exactly the outcome that we all hope to achieve from its passage, and that he can now reconsider supporting the amendment.

Victor Boyhan (Independent)
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I support this. Time limits are important. We just need to look at the children’s hospital to see what has gone on and on. I have no doubt it will go on and on more before the end of the year. It is about accountability and public money. Let us not fool ourselves. There is outrage among the general public about many projects - not all of them; some come in on budget and on time and that must always be acknowledged – due to the waste, the time lags, and the loose contracts and commitments about timelines for delivery paid for by public money. The Minister has special responsibility for this and is quite focused on seeking accountability from all the Departments, on the need to be agile and focused and on the need to keep tight rein on public expenditure. It is taxpayers' money and I think taxpayers expect that. Time and again over recent years, Minister after Minister has come out and made lame excuses over a number of projects which I will not list here but I could. The Minister knows what I am talking about. People just do not understand what is going on. Who are they accountable to? How has it got to this stage?

Earlier I welcomed the housing infrastructure investment announcements today. People expect infrastructure to be delivered on target and within budget. Timelines are critically important to that. We need to send out a strong message. This amendment seeks to include relevant time limits, within reason. To have projects going on and on is simply crazy. The children’s hospital is one example of where the public does not know how this major project has got out of the grasp of the politicians who are ultimately responsible for public expenses, value for money and critical infrastructure projects that are meant to be delivered in a co-ordinated, financially controlled and timely manner. I support the amendment.

Jack Chambers (Dublin West, Fianna Fail)
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I thank Senator Murphy for the amendment. I am not accepting it. While I agree in principle that authorisation processes should be subject to clear timelines, I do not believe it would be appropriate for me as Minister to prescribe the specific timeline required in the context of this legislation for every individual authorisation process. I will set out why. If such a requirement were imposed by my Department, we would run the risk of conflicting with existing sectoral-specific legislation which already exists in terms of timelines and setting out statutory timelines across multiple areas. It could also create difficulties in relation to EU law and more importantly could risk undermining the independence of certain public bodies. In certain instances statutory timelines are set out which are different from what are prescribed in the amendment. That potentially conflicts with other EU legislation or its transposition.

As I outlined in the Dáil, Senators can be assured that the broader reform of regulatory processes needed to introduce times across suitable authorisation procedures is already well under way. This was a central commitment in the accelerating infrastructure action plan that I published in December. Regulatory reform and simplification is one of the four pillars of that report. In order to drive this work, a dedicated simplification unit is being established in my Department. This work is already delivering results. On 26 March I issued a circular on the principles for better regulation for critical infrastructure. It sets out eight principles that public sector bodies are required to apply in their regulatory processes. One of these principles requires fixed timelines for all licensing, permitting and consenting processes along with the tracking and measurement of performance through appropriate key performance indicators. We are also seeing this approach reflected in legislation being advanced by individual Departments. For example, the environment Act 2026 includes provisions enabling a Minister responsible for the Environmental Protection Agency to make regulations specifying the period within which the agency should endeavour to reach decisions. Therefore, while I accept the intent behind the amendment, I do not believe it is appropriate to include in the Bill. I am satisfied that its objectives are better achieved through the wider programme of regulatory reform and simplification that is already under way and, indeed, the wider direction set out in the Bill in the context of the powers of the Minister to direct a particular body relating to projects that are designated critical infrastructure. I think we have sufficient legislative direction already contained within the Bill.

Mark Daly (Fianna Fail)
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Amendments Nos. 6 and 7 are related and may be discussed together by agreement.

Nessa Cosgrove (Labour)
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I move amendment No. 6:

In page 7, to delete lines 8 to 10.

The Labour Party really wants to see infrastructure improved. We recognise there has been a serious deficit in infrastructure and infrastructure projects in this country but we do not think this Bill addresses the root causes of that, which include poor planning, weak oversight and lack of staffing in relevant Departments. Overall, we cannot support the Bill. Not only do we believe it grants too much power to the Minister, and we are not simply talking about the present Minister himself but future Ministers as well, but we think it blurs the lines between the responsibilities of independent bodies which are being taken over by the Minister. Most importantly, we cannot vote for section 7. It is being rushed through. The whole Critical Infrastructure Bill is undermining the long, hard work that went into the climate action Act. I live in the north west where we face the real threat of building of fossil fuel infrastructure. If this Bill goes through, it will disregard any negative climate impact that will have.It will also disregard any climate benefits like prioritising rail infrastructure over road infrastructure, for example. The Minister did not rule out designating fossil fuel infrastructure as part of critical infrastructure. We all support the premise that something needs to change but not enough thought has been put into this. It is just an easy way out rather than looking, for example, at things like the overspend in the children's hospital. That is weak oversight and this Bill is not going to change that. My party colleague, Deputy Ahern, has suggested that there may be real constitutional issues with this and we could see this Bill challenged. The Supreme Court has ruled previously that legislation cannot provide that a government can automatically designate to disapply a core statutory duty without clear criteria, thresholds or mandatory considerations. This Bill, and particularly section 7, is going to gut our climate protections and that may prove to be unconstitutional.

Cathal Byrne (Fine Gael)
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Anyone who lives in Wexford has long sought the finishing of the road that runs from Belfast to Rosslare Europort. The motorway from Oylegate to Rosslare has had well over a year added to its design as a direct result of section 15 of the Climate Action and Low Carbon Development Act. In Galway planning permission was granted for a ring road but was subsequently overturned on judicial review as a direct result of the same section. As a direct result of that court decision, all motorway projects now have to have a separate assessment as to the extra carbon that is going to be generated in an area. When we are building a motorway, that in and of itself is a critical piece of infrastructure and it is not possible to offset motorway journeys by adding cycle lanes or segregated pedestrian walkways. The motorway in Wexford was ready to go An Coimisiún Pleanála for planning permission right up until the moment the High Court made its decision in that judicial review case on the Galway ring road to quash the planning permission because it did not consider mitigation measures that were required. That has had a direct impact on the ability of Wexford County Council and TII to deliver that infrastructure project. I accept that an assessment should be done of any project in regard to what it is going to mean and what it is going to do to the environment. However, as against that, we must also consider the fact that some projects, like motorway infrastructure, are critical to the social and economic development of our country and should be designated as such. It is my long-held view that it is not possible to offset the carbon impact of a motorway by putting in extra cycle lanes and walkways alongside that road. There are already existing roads for people to walk and cycle on, separate to the motorway.

This is a critical element of this legislation. I am disappointed to hear that the Labour Party does not agree with it and will not be supporting the Bill as a result. I have a very different policy perspective. It is important to have these debates. Motorway infrastructure, like the motorway running from Belfast right the whole way down the east coast of Ireland, around the M50 and all the way down to Rosslare Europort, could have been through planning at this stage, gone to tender and potentially even have started by now had that section not applied and had that judicial review case not been taken. That case ultimately changed the entire environment. It was a weaponisation of environmental legislation to stymie infrastructure projects like this motorway. I appreciate that is not the opinion or view of everybody in this Chamber but it is my view and I welcome the fact that we are in the position of being able to disallow section 7.

Mark Daly (Fianna Fail)
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I do not want to get into a debate on section 7 or the issue of climate change, which is dealt with in the next section.

Nessa Cosgrove (Labour)
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Can I come back in?

Mark Daly (Fianna Fail)
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No, not on climate because that is the next section. If no one else wishes to speak on amendments Nos. 6 or 7, I invite the Minister to respond.

Jack Chambers (Dublin West, Fianna Fail)
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I thank all Senators for their contributions. I am not accepting these amendments. The power to issue directions to relevant public bodies in relation to those programmes and projects that are designated as critical infrastructure is an important mechanism in the overall process. It will allow the Minister for public expenditure to intervene where the framework for accelerated decision making is not being implemented. Crucially, however, this intervention can only be for the purposes of ensuring that public bodies are carrying out their duties under section 5 of the Bill. Linking the power to give directions on the duties of public bodies set out in section 5 sets an important limit. Any direction issued will only relate to the measures needed to ensure that a public body prioritises its relevant functions under the Bill; acts promptly and avoids unnecessary delay; reduces the time taken to complete authorisation; works in parallel with other public bodies where practical; co-operates effectively across the system; identifies and manages the risks, constraints and interdependencies; and appropriately allocates the resources needed to do this work. Importantly, all of this must be done without prejudice to the bodies' other legislative responsibilities so I cannot use this power to override existing law or to determine specific decisions. Its sole purpose is to support the timely progression of the decision-making process. This is not unusual. Similar powers exist across a range of legislation, particularly in circumstances where Ministers work with public bodies but do not have day-to-day operational control.

There is a further safeguard in place in respect of using the power to direct. I am required to consult the Minister responsible for the public body before issuing any direction. I do not expect the power to be used frequently but it is important that it exists. The approval processes for critical infrastructure are often highly interdependent. A delay in a single authorisation can hold up an entire project, particularly where the authorisation sits on a critical path for that project. In simple terms, if we are serious about accelerating the delivery of critical infrastructure, we must have limited and proportionate powers to intervene where the system envisaged in the Bill is not working effectively. There is nothing in this legislation that allows me or any other Minister to dictate the decisions of public bodies. The Bill does not permit me to override, undermine or interfere in any way with the independent exercise of a public body's statutory functions. The purpose of the power of direction is to provide a mechanism to issue directions to public bodies solely in relation to how they are carrying out their functions under the Bill. In practice, this means directions can only relate to measures aimed at accelerating the authorisation process and can only be issued in consultation with the relevant Minister. Given these safeguards and limitations, I do not believe the proposed deletion or the proposed provision set out by the Senators in the amendment are required in this instance.

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Nessa Cosgrove (Labour)
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Yes.

Nessa Cosgrove (Labour)
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I move amendment No. 7:

In page 7, between lines 16 and 17, to insert the following: “(6) Where a relevant public body is stated in law or is otherwise required by law to be independent in the performance of some or all of its functions, the power to give a direction in writing under this section shall not be exercised so as to override, compromise or otherwise interfere with the independent performance of those functions.” .

Mark Daly (Fianna Fail)
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Is the amendment being pressed?

Nessa Cosgrove (Labour)
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Yes.

Nessa Cosgrove (Labour)
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It is very important that we do not fall into a binary way of thinking where we must choose between climate action and infrastructure projects. I do not think anyone would disagree. Sadly, it is the legacy of Fianna Fáil and Fine Gael that we have not seen key infrastructure projects. As someone living in the north west, I have seen this. Climate action cannot be blamed for that because the Act was not even around at that time. BAM and the children's hospital is an example. We have a big problem with public procurement. We can also see it in the €50 million Irish Rail project that is now gone. It is not fair to blame climate action.

This debate seems to suggest that we must choose between climate action and infrastructure projects. That is the wrong approach. As a result, we are going to be left with billions in fines, which we already have to pay. How is that money going to be accounted for? Of course, I agree that we need infrastructure. I agree with developing motorways. However, no legislation that is introduced should undermine the climate action Act. We spent a long time deliberating on that Act. As I have said already, there could be constitutional issues with this. I hope the Minister will consider this. Deleting section 7 and requiring climate action to be considered will in no way impact on the delivery of critical infrastructure projects. Whether we are going to disregard climate action or whether we are going to see the benefits of such action will have to be considered when delivering any critical infrastructure projects. This approach of seeing it as one or the other is wrong. It has been proven that it does not work. Our delivery of infrastructure projects in this country has been very poor and that has nothing to do with climate action.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Senators for their contributions. As I outlined on Second Stage in this House, I firmly believe that, if we are serious about accelerating Ireland's critical infrastructure, the disapplication of section 15 of the Climate Action and Low Carbon Development Act 2015 is necessary. There has been a great deal of misinformation about the purpose and impact of this change. The amendment is included in the Bill because recent precedent has made it clear that the courts have interpreted section 15 in a manner that means that every decision made by a public body is exposed to an inherently subjective assessment of whether that body has had sufficient regard to a wide range of climate policies and strategies in any decision it makes on a project. This creates an additional avenue for judicial review and will ultimately delay the development and delivery of projects and programmes. This runs counter to the key aim of this legislation, which is to accelerate the decision-making process. Action 6 of the Accelerating Infrastructure Report and Action Plan calls for the Government to be responsive to legal precedent that has the potential to delay critical infrastructure. It is our responsibility to address such challenges through legislation to ensure they do not impede the delivery of infrastructure our country needs.

I also wish to be very clear that I recognise that judicial reviews may serve an important purpose. I have previously referenced the key role they play in ensuring that decisions taken are lawful, transparent, fair and accountable, that they adhere to the principles of legality and proper procedure, and that they are rational. However, if we are genuinely seeking urgency and speed in the delivery of critical infrastructure, as legislators, we cannot abdicate responsibility for key aspects of decision-making to the courts. It is fundamentally the duty of Government, as the elected representatives of the people, rather than individual agencies or the courts, to determine the mix of capital investment that needs to be adopted to provide for the needs of our population in a manner consistent with our climate obligations.

The inclusion of this provision is a practical response to reduce one avenue of risk of delay to those projects that are designated as critical. There are absolutely no other impacts on climate policy, domestic and international climate commitments, or, as commentators have pointed out, other requirements to consider the climate and environmental characteristics of a project. I reiterate that this change does not mean that projects will not be subject to climate and environmental assessments. These will still take place as part of the development process for these initiatives. Every Exchequer-funded project is already required to measure and price its greenhouse gas emissions under the infrastructure guidelines. That provides an important incentive to minimise emissions where it is cost-effective to do so. Similarly, every individual project is also required to undergo a climate adaptation assessment to ensure it does not give rise to undue risks. All other climate and environmental obligations will still apply. Disapplying section 15 merely reduces the scope for one avenue of judicial review. The inclusion of section 7 is therefore vital if this Bill is to be a success.

Senator Murphy will be aware of the A5, where we have seen the complicated outworking of climate legislation through the courts. I was in Monaghan and Donegal last week and everyone from the Border communities was speaking to me about that particular project. We had a good North-South meeting with our colleagues in the Executive on the challenges arising from the court's interpretation and how it has ended up in a convoluted assessment through the courts, again undermining a critical project for the North and for North-South connectivity. That is an example of the unintended consequences of legislation. I do not believe the court's interpretation reflects how that legislation was drafted. We have an obligation to respond to legal precedent to ensure that such disapplication occurs where we want to drive delivery. That is what we are trying to do. We are trying to provide a clarified path for projects through the delivery process, rather than opening another avenue for judicial reviews, which are being weaponised here and in other jurisdictions.

Nessa Cosgrove (Labour)
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That is disappointing. Judicial reviews are being blamed for an awful lot of delays when there is poor planning, poor oversight and poor resourcing of Departments. That has to be recognised. It is recognised. The number of judicial reviews arises from poor planning. How can the Minister explain issues with other projects deemed to be critical infrastructure? What about the children's hospital? I know we keep using it as an example but public procurement is a big issue here. We have to be honest and have an honest conversation. It cannot be one or the other. It does not have to be like that. We all agree that we have to reduce emissions. We have signed up to the Paris Agreement. We have a climate Act for a reason. This undermines that Act. Unfortunately, we cannot support this. We cannot be labelled as anti-infrastructure because we are not. We are not anti-development but we are against pitting one essential necessity for our country against another. That is very short-sighted and I wish the Minister would reconsider accepting some of our amendments and having a longer debate. This is being rushed through. It is not being given due consideration. We should be honest about the public procurement issues we have in the country.

Jack Chambers (Dublin West, Fianna Fail)
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While I accept the Senator's perspective on the matter, there are issues in Sligo and the north west. A judicial review was taken in respect of the ring road in Galway that related to climate legislation.We have to remove legal avenues that are bringing uncertainty to projects that are hugely important for the west. We have ambitions to do more in the context of public transport and low carbon transport but the Senator knows from Sligo, there are important road projects that are hugely important for regional connectivity, economic development and from a road safety perspective. We know about the infrastructure deficit in the west and north west, some of which is connected to road transport.

The outworking of the Senator's argument is that because a road might create a potential emissions profile, should section 15 stop Sligo receiving a road it has been promised for 20 years, is in the national development plan and is hugely important for the economic development of County Sligo and the west more generally? The reason we are disapplying section 15 is to ensure that projects, some of which exist in the county the Senator respresents and others in the west, are built out and can happen. Some of that may be road infrastructure. I highlight the case with the A5 road in the North, which has seen the negative outworking of similar legislation in the North. In fairness, we have had good discussions with our colleagues on that in terms of how we can both learn in terms of better and improved infrastructure delivery and how that can improve connectivity for Border communities and counties.

Resourcing has increased exponentially for many public bodies and agencies. This is a question of improved performance and prioritisation so we get better delivery. The solution across public services is not always increased headcount. We need to better assess how systems work and how they prioritise their staffing towards improved delivery and accelerated timelines. That is why regulatory agencies and bodies need reform as much as increased headcount in many instances if we want to see improved delivery. I ask the Senator to reflect on that in the context of the county she represents and the need for an uplift in infrastructure. Some of that may be related to road infrastructure where people in Sligo and other counties in the west, such as with the Galway ring road and other instances, want to see delivery.

Should we risk that delivery because of a judge's interpretation of section 15 of the climate Act or should we ensure the Oireachtas and the Government, who are accountable and elected, can deliver a particular project if they want? We should not have that uncertainty brought in by people who want to use judicial reviews to achieve different objectives. That is why providing clarity and direction in this section will improve wider delivery.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Senator for her amendment. I agree with the broader sentiment of the amendment. Work is already under way within the Department and across the regulatory system. I do not, therefore, accept this amendment because of the work which I will describe. In February of this year, I stood up an infrastructure regulatory simplification unit in my Department. The unit is working with regulators across the system to streamline permitting processes, with a particular focus on critical infrastructure. This work has involved engagement with the Maritime Area Regulatory Authority, MARA, the Environmental Protection Agency, EPA, the National Parks and Wildlife Service, NPWS, An Coimisiún Pleanála, the National Monuments Service and broader regulators, such as the Commission for Regulation of Utilities, CRU, local authorities, the HSE and Transport Infrastructure Ireland, TII. Just last week, my Department hosted a workshop with all of these bodies that was focused on co-ordination and engagement within the regulatory system in the delivery of critical infrastructure. The need to improve efficiency and drive reform is central to the work of the unit.

Regulatory reform across the system is already showing progress.To give an example, MARA has introduced a number of reforms with my Department to reduce the regulatory burden and streamline the processes to speed up the delivery of critical infrastructure, including applying the principles of proportionality. We are going to see a reduction in time in that respect. Further work is under way to assess bottlenecks and to identify solutions and ways in which permitting can be taken in parallel, as opposed to sequentially. These reforms will be progressed through changes within the permitting bodies and Departments and some legislative change may be required. We will also be using the joint utilities and transport clearing house to enhance and progress co-ordination and reform. The Bill will help to drive some of these reforms too. I do not believe it is necessary to have this legislative amendment as this work is already under way and will be a core focus of my work over the coming months.

Maria Byrne (Fine Gael)
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Does Senator Stephenson wish to come back in?

Jack Chambers (Dublin West, Fianna Fail)
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Amendment No. 9 seeks to require a report to be laid before the Dáil, within six months of the passage of this legislation, on the potential impacts of introducing a net contribution clause to public construction contracts. I do not propose to accept this amendment, first, because the focus of the Bill is the designation and fast-tracking of critical infrastructure projects and programmes to existing authorisation processes; it does not extend to construction or procurement matters. More pertinently, however, I believe that the reforms already introduced to the capital works management framework will provide many of the same benefits without placing excessive risk on the taxpayer. For the benefit of the committee, a net contribution clause is a clause agreed in a contract between parties, which, in the case of wrongdoing, limits the liability to that share of any total liability for the same damage for which the party itself is personally responsible. These clauses are not used in the capital works management framework that governs public construction contracts because the Civil Liability Act 1961 provides that where two or more defendants are current wrongdoers, they are fully liable for the damage suffered by the plaintiff. This means that in the event that one of the defendants is unable to meet the judgment against it for its portions of damage caused, the other defendants, that is, those who are joined in any action, could be liable for the full amount and not just their own respective portion. As noted, however, reforms in 2022 to the capital works management framework contracts, in particular, the introduction of limits on liability, went a significant distance towards improving the risk position in public consultancy and construction contracts. All the members of the project team engaged with the public sector undergo a pre-qualification process where their financial capacity is considered. The technical capability criteria also investigate the perspective project member's track record in delivery. As a result, there is a reasonably high level of confidence in the capacity of the tendering field to deliver a particular project. Where issues of negligence do arise, taxpayers would expect that the State should be in a position to recover losses where there is insurance available.

Maria Byrne (Fine Gael)
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Is Senator Stephenson pressing her amendment?

Maria Byrne (Fine Gael)
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When is it proposed to take Report Stage?

Cathal Byrne (Fine Gael)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Maria Byrne (Fine Gael)
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When is it proposed to take Fifth Stage?

Cathal Byrne (Fine Gael)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Mark Daly (Fianna Fail)
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When is it proposed to sit again?

Fiona O'Loughlin (Fianna Fail)
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Tomorrow at 10.30 a.m.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.