Seanad Éireann - Volume 128 - 24 April, 1991

Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).

SECTION 5.

Debate resumed on the following amendment:

In page 11, subsection (3) (a), line 31, after “specifications.” to insert “In making such specifications the Agency shall have regard to the need for an effective pecautionary approach to safeguard the environment where the Agency has reason to believe that damage or harmful effects are likely to be caused although no definite scientific proof of such effects exist.”

——Senator B. Ryan.)

Mr. B. Ryan: we handled twice as many amendments as the newspapers reported last week and the average time for an amendment on Thursday was approximately ten minutes, not an excessive length of time. The suggestion that Members on any side of the House were wasting time for reasons of publicity is belied by the fact that most of the time there was only one person in the Press Gallery and often there was nobody. If the debating of this Bill proves time consuming it is because it is important and because many amendments have been submitted by Members. It may also reflect the fact that we knew the Minister involved would listen to amendments, respond fairly to them and accept them if she thought they were reasonable.

There is no fundamental difference between the Minister and myself on the question of a precautionary principle. I will reconsider the wording of my amendment so as to leave the interpretation of that precautionary principle specifically [909] and clearly to the agency. I remind the House that scientific proof of many issues can be slow— we had to wait 20 years for scientific proof on the hazards of cigarette smoking.

(Interruptions.)

An Cathaoirleach: Order, please, Seanator Ryan is in possession.

Mr. B. Ryan: Scientific proof is not the most satisfactory method of dealing with threats to health. I was at a conference three years ago in Germany when 25 per cent of identified toxic substances available in Germany had been identified as carcinogenic. A further 25 per cent would be identified as carcinogenic in the immediate future but nobody was not quite sure which substances would be included. If an agency whose job is overwhemingly preventative is to function properly it cannot be constranied by definition of prof of similar to one that would apply in court of law. The provisions of this amendment would be applied to new projets. If small-scale emissions of a new synthetic substance are to be permitted there can be no scientific evidence about the possibly hazardous nature of something that has never before been released into the environment. If this substance has a chemical similarity to substances which have been released into the enviroment and which have had scientifically proven damaging effects, should our environmental protection agency then allow a new development to discharge, in however small a quantity, a substance which was not proven dangerous for lack of evidence but which had clear chemical similarities to substances which had been so proven?

I accept the Minister's point that if the amendment is not worded carefully we risk a legal merry-go-round which our friends in the legal profession—and I love the way we call them “our friends” and then accuse them of avarice on a grand scale—would have a wonderful time teasing out. I would like to hear from the Minister on that. She did explain the problem but I did not fully understand [910] how she thought the BIll dealt with it. We have to give an agency like this the right to operate on more than post hoc evidence because scientific evidence is by definition post hoc evidence, in the case of harm to humans caused by new substances. Despite efforts to climinate high risks through a variety of tests involving animals and micro-organisms, etc., substances get through which turn out to be hazardous, toxic and carcinogenic. We need an agency which can say that it is not prepared to tolerate the discharge of substance A into the atmosphere because the balance of argument on the basis of previous evidence indicates a risk. That is why I am not prepared to argue the wording of my amendment. I do not think it would serve the purposes of the Bill or time of the House well. However difficult it may be in principle, the philosophical statement that the Environmental Protection Agency can act to protect us where it is convinced of the existence of a risk, albeit an unproven one, must be clearly stated in the Bill.

Mr. Foley: I want to support Senator Ryan who has made a very good case for his amendment. He referred to the wording and to management of serious risk. If there was any doubt at all with regard to the legal risk his amendment would add substance and I ask the Minister to consider it.

Mrs. Hederman: I want to support the whole thrust of having the precautionary principle written into this Bill. I support what has been said by Senator Ryan. I also made reference last week to may amendment No. 169 which generally deals with the same area. The Minister gave the impression last week when she replied to my reference to amendment No. 169 that it would be utterly unacceptable. This amendment is stating a similar proposal in different words. I want to ask about the term used in both Senator Ryan's amendment and my own when we say “shall have regard to”. I understand that “having regard to” did not imply being absolutely bound. If the consequences of something warranted it a nod would be [911] made in that direction. When an appeal is made to the Planning Appeals Board they are bound to have regard for the development plan of the area from which the appeal is emanating. In thousands of instances, however, the Planning Appeals Board give a decision contrary to the local development plan. It is not, therefore, to say that they will have in all cases to abide by it; “having regard to it” seems to be perfectly legitimate and should be acceptable to the Minister. Senator Ryan makes the point strongly and effectively that if the balance of evidence convinces the agency that there is a possibility of risk, inability to produce absolutely scientific fact should not make action impossible.

Mr. Norris: I would like to support this important principle. Other Senators indicated both today and last week that many agencies who lobbied Senators indicated a concern for the precautionary principle. The Minister will bear in mind the interesting and significant fact that there has been virtually all-party consensus on the principle involved. It is a question of delicate balance. One does not want to inhibit entirely industrial development leading to employment. This balance is a sensitive issue because if, as Senator Hederman mentioned if you get into th area of a risk of a risk then you may inhibit industrial development in a regrettable way. People will agree with the precautionary principle, particularly in the light of Chernobyl, that the accummulation of scientific evidence can sometimes take 15 to 20 years before a case can be proven. During that intermediary stage while evidence is building up it is wise to take precautions. The phrase “a risk of a risk” would stretch in a little far.

I am interested and pleased to hear that Senator Ryan is not insisting adamantly upon the exact wording because I would have some difficulty with that. I hope the Minister will take the principle on board. It is exhortatory rather than anything else. I am not sure of the legal impact of the phase “they shall have regard to”. How strong a requirement is this? How [912] do you detect the fact that an agency have had regard to something? How is that evident in their decisions? It may be a nod in the direction. I do not think it has any real force. It is an example of nit-picking but I think the proposition is inaccurate. I think it should be regard “for”. I know it is stylistically unattractive to repeat the preposition but it is grammatically correct. If it is redrafted we could correct the preposition.

Dr. Upton: I support the principle embodied in Senator Ryan's amendment. As far as the environment and emissions and pollutants are concerned, we should always err on the side of safety; we should always be extremely cautions. It is, unfortunately, difficult to obtain conclusive scientific proof in many instances. Invariably in many cases one can only make a value judgement, which should reflect caution, concern and conservation.

Some developments that have taken place over the years indicate the necessity for a cautions approach. Certain chemicals used in some industries generated cancers in the workforce. We must consider the effects beginning to unfold in relation to the emissions from Sellafield over the past number of years; clusters of cancers are developing here and in areas surrounding the plant in Britain. Drugs used in the fifties to treat impendig miscarriages gave rise to unfortunate cancers in the children of mothers treated with those drugs. Thalidomide was used by people in good faith and you find tragic effects of that drug two or three moves down the line. That I am advocating is that we be cautious and that the Minister would accept this amendment or at least the principle embodied in it.

Mr. Naughten: We all agree with the principle contained in this amendment. While it is important that every safeguard should be built into this legislation we must be careful not to prevent development. The proper balance is essential and we would all support that. The Minister should examine the possibility of taking this amendment on board while ensuring that it will not damage industrial projects [913] or be the cause of indefinite delays. We wish to protect the environment on one hand while not inhibiting development vital for the creation of jobs. I would like to hear the Minister's comments on that.

Minister of State at the Department of the Environment (Miss Harney): I thank the Senators for their contribution on this amendment. I, too, share the concern of all sides to have this principle enshrined in the legislation. The Government are committed to the concept of precautionary action which was one of the three principles on which the environment plan published last year was based. However, putting flesh on the beast, as it were trying to put it into the law, is difficult. As Senator Ryan accepted, we do not want to leave more licence decisions of the agency open to court challenge. That is the wish of all sides of the House. We do not want to add any further uncertainty to possibility of development.

I am prepared to examine this to see if it can be enshrined further in the legislation. It is already convered in the definition of the BATNEEC principle. It is covered in the definition of environmental protection where preventative pollution is dealt with and in sections 103 and 105 on noise where measures to prevent noise are introduced. The whole concept of prevention is certainly one of the key elements of this legislation. I do not have a monopoly of wisdom nor do my officials in relation to this Bill. It is my intention that it would be passed with the greatest degree of consensus from all sides of the House so I am going to have another look at it. It is more appropriate where Senator Hederman has proposed her amendment on section 51 and perhaps when we come to that section in relation to the functions of the agency it would be reasonable to insert, in legal terms, the kind of principle the Senators of all sides wish to see in this legislation.

Mr. B. Ryan: I wish to withdraw the amendment. May I say two things to the Minister on the question of drafting an alternative? Speaking as a scientist, do not let the scientists fool you. Science is [914] about evidence and it, therefore, always has to work backwards. In the area of economics there is an growing school of thought among professional economists, most of them outside this country, that what has gone wrong with economics in the past 20 years is that economists stopped looking at the evidence and started building models based on what came into their heads, rather than reality. Similarly, if the burden of proof has to be based on scientific methodology for something like this, then it is impossible.

I would suggest a wording similar to that in section 82 (6) to do with oral hearing which gives the agency absolute discretion in the holding of an oral hearing. As the Minister knows, many of the environmental groups are less than happy with the absolute discretion. It was put in, I presume, to ensure that we did not have masses of litigation by people demanding oral hearings because they felt like it. We have to trust the judgment of the agency.

On the question of a precautionary principle, the absolute discretion of the agency to make decisions in this area where scientific proof does not exist should be written in so that they can look at the evidence and at their absolute discretion — I presume the wording is carefully drafted to make it impossible to litigate in the area — but make it clear that they are not bound by the narrow limits of what will be called scientific proof. I thank the Minister for the continuing spirit in which she is dealing with this debate and I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 36 not moved.

An Cathaoirleach: Amendment No. 38 is consequential on amendment No. 37. Amendment No. 39 is an alternative to amendment No. 38. The three amendments may be discussed together.

Mrs. Hederman: I move amendment No. 37:

[915] In page 11, subsection (4) (a), line 41, to delete “authority and to” and substitute “authority,”.

We will take these three together and we will be withdrawing them. Senator Ross and I sought in these amendments that if a copy of specifications were sent to the Minister under paragraph (c) that it would also be sent to the prescribed bodies. Senator Ross in his wording referred to sections in the Local Government (Planning and Development) Act. I could not see them stipulated there and unfortunately, in mine, I forgot to write them in. What we are asking the Minister is if it would be reasonable that the prescribed bodies, An Taisce, Bord Fáilte, etc., should receive a copy of these when they are sent to the Minister and to An Bord Plenála.

Miss Harney: Before the Senator announced she was going to withdraw the amendment I considered accepting it. The principle of what the Senator wants is feasible. Whether it should be in the primary legislation or in the regulations, we will certainly grant this request.

Mrs. Hederman: We are withdrawing the amendment because it is not correctly worded. We hoped the spirit of the amendments will be accepted.

Amendment, by leave, withdrawn.

Amendments Nos. 38 and 39 not moved.

Government amendment No. 40:

In page 12, subsection (5), to delete lines 3 to 5 and substitute the following:

“ ‘(4A) Directions under subsection (3) shall not be issued in relation to an activity for the purposes of the Environmental Protection Agency Act, 1991, or in relation to any process, development or operation as regards which an order has been [916] made, and remains in force, under section 92 of the said Act.’.”.

Miss Harney: These are technical amendments designed principally to ensure that directions on best practical means under section 5 of the Air Pollution Act, 1987 do not issue in respect of processes, developments or operations will covered by this Bill. Instead these processes, developments or operations will be subject to the requirements of BATNEEC as explained in section 5 of the Bill. The Bill, as drafted, dealt with this point adequately for activities specified in the First Schedule. However, section 92 of the Bill provides a mechanism whereby certain other processes, developments or operations not specified in the First Schedule may also be made licensible and subject to the general application of this Bill by ministerial order. The amendments ensure that these section 92 activities will be subject to BATNEEC rather than BPM direction.

Acting Chairman (Mr. Harte): May I remind the House that amendments Nos. 288, 296 and 297 are consequential on amendment No. 40 and all may be discussed together.

Mr. B. Ryan: These amendments fit together and extend the provisions of BATNEEC to an area previously omitted. I will not object to them.

Amendment agreed to.

Mr. B. Ryan: I move amendment No. 41:

In page 12, between lines 11 and 12, to insert the following new subsection:

“(7) The Agency may, at its absolute discretion, specify that there is no technology available not entailing excessive cost which would enable a particular activity to meet the requirements of this section.”.

As in the case of other amendments [917] moved by me, I can anticipate the parliamentary draftsman's reply that it is already contained within the definition as stated. It was introduced by me because many people said to me that it was not clear that the agency — and I am quite sure it is the Minister's intention — could say, “no, that is a dirty industry”. There is no technology available at reasonable cost which can produce emissions from such an industry which will be acceptable to a country which takes its environment seriously. Therefore, the Agency does not have to specify BATNEEC in terms of unspecified standards. I know we have standards in certain areas but, given the complexity of certain emissions from the chemical industry, it is going to be almost impossible to have national standards for emissions of every single chemical and it would be ridiculous if we had to set national standards every time we had a new industry. We should make it clear that this agency has the right of veto. I have considerable faith in the chemical industry's capacity to meet whatever standards are set but I do not think we should leave the possibility of a legal loophole, where because it has to specify the best available technology as we have discussed it, the agency would have to permit certain processes to take place because what was best and available at reasonable cost could not actually produce an effluent which was environmentally acceptable. Therefore, it seems to me that the principle should be clear, that the agency at its aboslute discretion should be able to specify there is no technology available to meet acceptable standards and that, therefore, that process could not go ahead.

I have to withdraw the amendment because as it stands it seems to me it could easily mean that the agency would say it and that would mean that technology like that would be able to be licensed without any BATNEEC requirement at all simply because the agency would say it. It is not particularly well worded. As my amendment stands, it would simply mean that the agency would say: “There is no technology available” and there would be no guarantee that because there [918] was no technology available it would have to meet any standards at all. It seems to me a little dubious legally the way I have it worded but the objective is to make sure that the agency can say “no” to certain processes if it believes that the processes are inherently dirty. That is what I had in mind and I would be interested to hear the Minister's view on it.

Miss Harney: I am not well disposed to always commenting on amendments that are going to be withdrawn or we will be here forever. The principle of what is involved here is not acceptable to me for this reason: if certain activities are not acceptable there are policy decisions that would have to be made by the Government of the day. This is not a policy-making agency. Obviously the duty of the agency is to enforce standards, implement policy and so on, but it is not the responsibility of the agency to decide the country will not have industry X or industry Y or activity X or activity Y. That is why there is a general provision made in the Bill to allow the Government of the day to give directions to the agency, such as the direction, for example, that no nuclear power stations will be licensed or whatever. If the country is to make a decision with regard to certain activities that are not acceptable for whatever reason, then I believe that is a political and policy-making matter and not one, in fairness, to be given to the agency.

As the Senator knows, BATNEEC is only one of the six matters the agency has to consider when they are deciding on a licence. If something is going to cause serious pollution then obviously it is not to be licensed. BATNEEC is one of the six matters when they are specifying the technology that has to be applied but it is not the only matter the agency takes into account. I think there may be some misunderstanding about that, that once you specify BATNEEC, or if there is not technology and something is going to cause pollution, it goes ahead anyway. That is not the case and it is not the intention under this Bill that that would [919] be the case. Section 80 (3) requires compliance with standards, noise regulations and so on in relation to emissions. That deals with the kind of points that Senator Ryan is trying to cover by this amendment.

Mrs. Honan: At the beginning I was inclined to agree with Senator Ryan but the one thing we would need to watch through all this legislation — and the Minister has just confirmed my thinking — is that when we are talking about major decisions it will be national policy. The other worry that surfaced in contributions on Second Stage when so many valuable contributions were made is that we have to be careful, and I accept how concerned Senator Ryan, the Minister and indeed all of us are about the type of industry we allow to be put in place. We have to be careful to watch the dirty industry or anything that might create a problem.

On the other hand, we have to watch the job situation and I was quite strong on this in my Second Stage address to the House. I agree with part of Senator Ryan's amendment but now that he is withdrawing it the Minister has confirmed in my mind that our thinking is right in regard to the power of the agency. The decisions Senator Ryan was concerned about will be made in another place.

Mr. B. Ryan: I am persuaded by the Minister. I agree with the Minister that what I had in mind would be more appropriately a matter of policy and whatever my views on the Government of the day, it would be a matter of policy. I withdraw the amendment.

Amendment, by leave, withdrawn.

Section 5, as amended, agreed to.

SECTION 6.

Acting Chairman: Amendments Nos. 43 and 44 are alternatives to [920] amendment No. 42 and they may all be discussed together.

Mr. O'Toole: I move amendment No. 42:

In page 12, lines 20 to 26, to delete subsection (3) and substitute:

“(3) Every regulation made under this Act shall be approved by resolution of each House of the Oireachtas as soon as may be after it is made and, if the motion is rejected by either such House, the Regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”

I am not sure they are alternatives to each other or options but I see that they should be addressed at the same time. They are quite different, in fact. Senator Murphy's amendment is very like my amendment but Senator Naughten's is quite different. The issue here is very simple. To use an absolute illustration I am reading from today's Order Paper and today the order of this House carries five statutory regulations and they are as follows: “Solicitors Acts, 1954 and 1960 (European Community Lawyers) (Fees) Regulations, 1991.” I defy anybody in the House to give me the slightest inkling of what that is about. That is a statutory regulation arising out of an Act. The second staturoty regulation is: “Qualified Lawyers (European Community) Regulations, 1991.” The third one is: “Merchant Shipping (Light Dues) Order, 1991. Then there is: “Social Welfare (Modifications of Insurance) Regulations, 1991. That is the way items are laid before the House. They come here in a list. On this Order Paper we have perhaps 20 and I have often seen up to 50 on it.

It is well that people understand that this Act will work by way of regulation. The Minister or the Department will determine specific areas of regulation, as they are required to do, and we are all agreed they should do. This is presented as a paper to the Librarian of the House who enters it in a book, who ensures that it is included in the Order of Business [921] and as far as we are concerned that is then a regulation laid before the House. It is an activity which is unacceptable. I am sure if we were to check on those five statutory orders before the House today they are there on precisely the same conditions as this one here. In other words, unless the House rejects this regulation over the period of the next 21 days it becomes law.

I have always maintained this is not the way to deal with legislation and I have always felt that it should be an affirmative process where the House should decide. In other words, that the Minister should not simply present the new regulation to the Librarian of the House but should come into this House, have it printed for the Members of the House and say: “We are now proposing that this be included as the regulations that go with this Act” and if it is approved by the House then it would become law. It is not the way to pass law. We have seen all sorts of ridiculous regulations coming through, unmarked and unnoted over the past couple of years. I will give one classic example and this is just by way of illustration.

The legislation dealing with the granting of licences to restaurants produced regulations which were so impossible to meet that very few restraurants were ever able to qualify for an alcohol licence because they had to put doors here and toilets there. It was constructed in such a way that it made it impossible. We never get the opportunity to actually address those things. They just slip through the House. I am not saying this is done as a cover up. The reason it is written in this way is because the parliamentary draftsman feels this is the easiest way to do business with the Department and, of course, he is right because once they get this out the door of this House we will never again see a regulation except as a line on the Order Paper. We will never get the opportunity of discussing it, we will never get the opportunity of amending it and we will never get the opportunity of rejecting it. The process of rejection would mean that I would, first of all, have to check what those five papers mean, [922] compare them with the legislation that was passed in 1954, 1960, 1991 and various other years and then say: “I do not agree with that and we now need to get this on the Order Paper”. It is an impossible process. In my time in the House I have never yet heard of a regulation being discussed. That is the reality.

Assuming the Minister can stand by the regulations she would wish to bring into operation, then what should happen is that each regulation under the Act shall be approved by resolution of each House of the Oireachtas as soon as may be after it is made and if that is rejected by either such House the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done hereunder. That is the process of law, the process of legislation where it is proposed, discussed, amended or changed.

I used the word “amended” quite casually. In fact, it is not possible to amend regulations anyway so there is no danger to the Department of having a set of regulations torn apart; they are either acceptable or they are not acceptable. I have infinite confidence in the public service that they would bring forward sets of regulations which would be acceptable to the House on all occasions. What we need here is an affirmative process to determine the regulations rather than the negative process, as I call it, which means that it just simply slips through, the negative being that it has to be rejected by a House of the Orieachtas. The proposal here is that every regulation becomes a regulation unless it is rejected by a House. I am objecting to that because it is a very passive way of dealing with it and, secondly, because we never actually get to see these regulations, they are not even circulated to Members of the Houses and I want to stress that point. They are simply sent to the Librarian. That is the effectiveness of laying something before the House. The affirmative process, on the other hand, would require that each regulation was circulated, was placed on the Order of Business, was proposed, discussed and accepted. I think there is no comparison between the two processes.

[923] Professor Murphy: During the Second Stage we all agreed, indeed I think the Minister made a point of it in her speech, that it is necessary for the success of this legislation that it has the confidence of the public and that there be an openness about the procedures under the Act. Indeed, the concept of an open-minded Government which does its business in public, as I recall, was part of the tone of the agreement setting up this Government but it is particularly important in the case of the Environmental Protection Agency Bill that the agency in its procedures and regulations made under the Act be seen to have public support and must be seen to have parliamentary support rather than simply ministerial and civil servant approval. The general principle there is that as far as possible everything done under this legislation shall be seen to be done openly and with the full approval of the Oireachtas. I fully support what Senator O'Toole has said. As far as I can see, my amendment does not differ at all from his except it is more succinct, if I may say so. The principle that regulations be positively scrutinised and approved by the Oireachtas rather than slipping in by default, as is the regrettable procedure nowadays as Senator O'Toole has pointed out, is also the spirit of my amendment. I fully support everything Senator O'Toole has said.

Mr. Norris: I would like to support the principle of both amendments. I take it they are the same. There may be some technical differences and the Minister may be inclined to introduce an amendment of her own, but it is extremely important because we are talking about parliamentary accountability. It is vital that the Parliament of this country be seen to approve the regulations because there has been a tendency, not on the part of this Minister but some other Ministers, to govern by decree using regulations. Sometimes regulations do not appear to have to be approved at all by the House and I would like to welcome the fact that the Minister is at least moving in some regard by referring the regulations to the House but it is referring [924] them in a kind of passive way and there is a shift in emphasis in these two amendments which would mean that they would have to be positively approved by the House. I certainly support them. I hope we may be pushing at least a half open door with these amendments.

Mr. Naughten: It is very important that the regulations be laid before the Houses as provided for in section 6 but I believe that 21 days, which effectively is seven weeks, is too long to leave it if, for example, the House decided to reject the regulations and that is why I included seven days. There is merit in what Senator O'Toole has outlined but we must be realistic and if every regulation has to be discussed by the Oireachtas I think we would have an unparalleled log-jam and that is why I did not go for that option. I believe that 21 days is too long and this is why I put in this amendment of seven days.

Miss Harney: I suppose, to some extent, taking these three amendments together is sensible but they are very different in intent. Senator Naughten's amendment would seek to restrict further the powers the Oireachtas has where instead of giving them 21 days in which to annul the amendment it is only giving them seven days and I think that is contrary to the approach of Senator O'Toole and Senator Murphy. While I have some sympathy with the point the Senator is making, having sought on occasions to try to annul regulations myself, I have to say in relation to this Bill and the way we do our parliamentary business we give what I would regard as non-controversial powers or housekeeping powers to Ministers to be implemented by way of regulations. If we did not do that we would place a considerable burden on this House and on the Dáil when the vast majority of regulations are totally non-controversial. I think it would be a very unwise way of dealing with legislation and it would delay the implementation of this Bill and other legislation.

What the Oireachtas has to concern itself with is getting the fundamentals [925] right, setting up the primary legislation and, in relation to regulations, either to amend the First or Second schedule to this Bill, to change the selection committee, to extend powers under the Water Pollution Act or the Air Pollution Act or the Waste Management Act. Those regulations have to be approved by the Houses of the Oireachtas before they have the effect of law. If we get the primary legislation right then I think it is only fair and reasonable and in the interests of the speedy implementation and establishment of the agency that that would be done by way of regulation. If there is a problem about how regulations are annulled or discussed, then that is a matter for our own procedures.

If Senators or Deputies want to set time aside to formally discuss regulations — the point made by Senator O'Toole in relation to today's Order Paper — that is a different matter. It is a matter for our own procedures and the way we deal with regulations. I do not think it would be fair to restrict and further delay the establishment of this agency and, as I said, the fundamental and important sections cannot be changed by regulations unless they have first been approved by this House.

In relation to Senator O'Toole's specific amendment, he suggests that the regulations would have the effect of law until they were annulled. I think that would be unwise. It would mean, for example, that regulations would be made today, would be legal and subsequently could be annulled by the Houses of the Oireachtas. I think that would lead to a lot of confusion, disquiet and uncertainty. In relation to Senator Murphy's amendment, at least they do not take effect until they are approved, so it does not have that element of uncertainty that Senator O'Toole's amendment has.

I am afraid I cannot be co-operative on this. This being a framework Bill, I know a lot of the housekeeping matters are being done by way of regulations because that it the most effective and speedy way of doing them, but if we get the fundamentals right Senators should not be too concerned about leaving the remaining [926] matters to ministerial powers. In any event, they can be annulled if the Oireachtas so wishes.

Dr. Upton: I certainly agree with the tone of the suggestion that every regulation could not be discussed in the House. It would involve excessive amounts of time. At the same time, the principle which is involved in the amendment has a certain merit. I would be particularly concerned in relation to developments in technology some years down the road where you may get important new technologies coming on stream and where Ministers may be making regulations determining how those technologies are utilised without this Act having the capacity to, as it were, envisage the issues which may be involved in developments which we simply cannot anticipate now.

Mr. O'Toole: I want to clarify a few points. I want to make it absolutely clear to the Minister that what I am saying here seems to have been misinterpreted and that it is not unique and has plenty of precedent in legislation. I am very careful in framing that amendment even to the extent of replacing the word “resolution” with “motion” to clarify what I was doing. My proposal does not create a delay because, as the Minister says, it does not prevent the introduction of regulation and it does not prevent the immediate implementation of such regulation. That is why retained in my amendment are the words “accordingly but without prejudice to the validity of anything previously done thereunder.”

I can assure the Minister that that is not unusual and is not without precedent. In fact, I will give the Minister an example off the top of my head but I am pretty sure I am right about it. We had amending legislation to a superannuation scheme going through this House over the course of the last year. The idea was to change the process of regulation from the affirmative process, which was there in the original 1953 legislation, to the negative process we have here — ” unless it shall be annulled” type one. In the one we were changing it was clear in that [927] when the regulation was placed before the House it became an operative regulation and remained an operative regulation until such time or until or unless it was rejected by the House and if it were not rejected by the House it operated during that period of time. That is not without precedent. The difference between Senator Murphy's amendment and mind is that it allows the regulation to come into operation immediately.

The other aspect of it is to deal with the issue raised by Senator Naughten. Far from creating a logjam it does not in any sense slow down the process. I was very careful about that in the amendment. The process is now slowed down. The Department or the Minister do not lose any power or authority; the operation of the Bill is not perverted in any way. It allows all those things to take place but it also requires the approval of the Oireachtas. Seeing that the Minister is prepared to do that under section 7 on some of the other orders, it is a very small step indeed to wrap them altogether and to take it in that way.

Mr. B. Ryan: I am reluctant to say this, but I do not think I can support my two colleagues because I do not think you could possibly have a situation where every regulation made under legislation would require affirmation. One of the problems is a problem of the antiquated, creaking and about to collapse structures of Irish parliamentary democracy. Huge amounts of quasi-legislation are being issued all around and because the structures of our democratic processes have become so out-of-date whole rafts of stuff never get proper consideration. I do not think the solution is to make the logjam of matters on the Order Papers of the Houses of the Oireachtas even greater.

If you read this Bill, you will see that the number of sections which provide for the making of regulations must number 17. I think it is an issue which must be dealt with on specific terms on specific areas of regulations. The Minister does not have a free hand in this. The distinctions that the drafters of legislation [928] have to make are not simply the ones that come into their heads. There would be problems with the courts if the Minister took on himself or herself the right to write law by way of regulations without the approval of the Houses of the Oireachtas. Therefore, certain areas are usually reserved to have to be approved by the Houses of the Oireachtas. It is interesting that the provisions in section 7 for amending the schedules need the approval of both Houses of the Oireachtas. It is one of the few absolute powers that this House of the Oireachtas has which, regrettably, we do not ever use, but we have the power to refuse to accept regulations or to annual regulations and there is no way around it other than by way of legislation being introduced to deal with it if either House of the Oireachtas refused to accept regulations. The Dáil does not have any final power in the issue. It is with regret, therefore, that I must leave my colleagues to argue their case and not support them on this.

On the question of things coming into force and being annulled, the orders under section 31 of the Broadcasting Act that are made with painful regularity every year all have the provision that they apply from the moment the Minister signs the order but they can be annulled by either House of the Oireachtas on any sitting day for the following 21 sitting days. They contain the provision that nothing that was done under the orders before they were annulled will not be valid because of the capacity of either House to annul them. It is well established that regulations can come into force, stay in force and if they are annulled that does not undermine the validity of what was done while they were in force. I could not see us going through the details of every single regulation. I am much more concerned that a lot of “mays” on the Minister's part should become “shalls” and that the regulations would be published.

Mrs. Honan: I cannot support Senator O'Toole. The Minister has made quite clear the distinction between housekeeping regulations and the positive ones. [929] Senator O'Toole is in the strongest possible possition as a member of the Committee on Procedure and Privileges to reform this House, as he should do. He referred to what is on today's Order Paper. I was a member of that committee and I was put off it, but Senator O'Toole is still a member and that is where he should——

(Interruptions.)

Acting Chairman: Senator Honan without interruption.

Mrs. Honan: Thank you for your protection. That is the place for all regulations. I support Senator Brendan Ryan. I have no intention of moving anywhere.

(Interruptions.)

Mrs. Honan: I cannot support these amendments for the reasons given in detail by Senator Brendan Ryan to his colleague, Senator O'Toole.

Professor Murphy: There are the beginnings of all kinds of interesting realignments here. A moment ago Senator Honan confessed she felt attracted towards Senator Ryan's amendment and she attacked Senator O'Toole very strongly.

Mrs. Honan: The Senator does not know what attacking is if that is what I have just done.

Acting Chairman: Senator Murphy, without interruption.

Professor Murphy: Also, she thanked the Acting Chairman for his protection, but should watch her back——

(Interruptions.)

Progress reported; Committee to sit again.