Seanad Éireann - Volume 128 - 24 April, 1991

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

SECTION 6.

Debate resumed on the following amendment:

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.”

(Senator O'Toole.)

Professor Murphy: We all share that concern, that an antiquated and cumbersome parliamentary procedure would be further confused and complicated by [931] detailed attention to scrutinising regulations. I really had not intended that and I do not think that, in practice, that is the way it will turn out. I do not think Senator O'Toole either anticipated the House being tied down in a welter of discussions about improving regulations. It is simply that to put our amendments into legislation would be part of a general assurance that the Minister does not propose to exercise the wide powers which are available to her under this and every legislation. It is really the principle of showing the flag, if you like, of respect of Oireachtas approval which, in turn, is a way of signalling to the public that this legislation, its operations and procedures are democratic and open to public scrutiny. That was the spirit in which I offered my amendment. I take on board what has been said by those who find difficulty with it.

Mr. O'Toole: It is important that we recognise what the regulations are about. People seem to take the view that the regulations are different from the law. Senator Ryan listened closely and said that Ministers are not allowed to write the law. In fact, they are allowed to write the law. The purpose of regulations is quite clearly to give an enabling power to the Minister to write legislation in those areas which are likely to change at regular intervals. The idea of the regulation is that the Minister would not be required to introduce new legislation every time an amendment was required to something that was variable in the first place. It is important we recognise that is what it is about.

I now want to address what we are doing in this amendment. I specifically want the Senators on this side of the House, particulartly Senator Upton, to pay some attention as to what he feels will be a log-jam. I have certainly heard his party raise queries in the other House on regular occasions as to how they might address certain aspects of regulations where Ministers had discretionary [932] powers which could not be questioned under the parliamentary process.

Section 58 deals with effluent discharge, and the Minister may, under the terms of the section, prescribe standards for effluent discharged into waters. That is very important information that people in this House would like to deal with. I am not going into the details of it. Section 62, which is a classic example of the Minister writing legislation, outlines the environmental monitoring programme; we are giving the Minister the authority under the section to make regulations specifying the monitoring, the classes of monitoring that should take place, etc. That is a fundamental part of the legislation and I defy anybody to tell me that that would be creating a log-jam. It is extending the range of the Bill without a shadow of a doubt.

Under section 68, which is perhaps the best example of all in the Bill, we have a whole section dealing with the functions of the agency in relation to environmental research which “shall include the matters specified in this section”. Then we go on to subsection (2) (a), subsection (2) (b), paragraphs (i), (ii) and (iii), subsection (2) (c), subsection (3), etc. It goes on and on with the functions of the agency in reference to environmental research. There are also other functions earlier than that. We will spend a lot of time discussing those when we come to that section.

Acting Chairman: I ask the Senator to stay on the section.

Mr. O'Toole: I am staying on the section but I will not labour that point, I accept the Acting Chairman's ruling. In section 70 we are now giving the Minister the power by regulation to extend the functions and the powers of the agency. The point I am making is that we will spend a lot of time going through the functions of the agency. Next week the Minister can write a new section. I am not pointing to this in a sense of a Minister trying to get around legislation, I am simply using it to illustrate the power and function.

[933] Under section 70 on environmental approval, the Minister shall, with the consent of the Minister for the Marine, make regulations, etc., in relation to all or any of the leases, licences, permits or other authorisations which the Minister for the Marine is empowered under law to grant or to the renewal of such. Such approval may be given either without conditions or subject to the conditions related as the agency may specify. We are now giving authority, without parliamentary approval, to extend the licences, leases, permits or authorisations without condition. These are serious and important matters. I would like to bring this to the attention of the House. There are many more in the Bill. I am not directing this to the Minister. This is for any Minister for the next 40 years.

Minister of State at the Department of the Environment (Miss Harney): There are a number of things I wish to say. First of all, Senator O'Toole misunderstands some of the things he has been quoting from. For example, in relation to the EIS, the Minister has the power to make regulations. He specified that the agency should get a copy of an EIS. That is not unreasonable power.

Mr. O'Toole: With respect, I did say at that point that I had become confused and that I was quoting from the wrong section. The Cathaoirleach pulled me up on it.

Miss Harney: In relation to the technical aspects of monitoring and so on, I do not disagree with the principle that obviously legislation cannot be made up by Ministers as they go along, nor should that be provided for. Regulations can be annulled. There is no such thing as making a regulation and that is the end of it. The Oireachtas does have the power to annul regulations. If we in the Oireachtas have not got our procedures in order to allow us to annul them effectively or easily, that is a different matter. It is not a matter to be dealt with in the context of this Bill.

Where the fundamentals are concerned, I was keen to ensure that no [934] extraordinary powers would be vested in the Minister, so the Minister cannot have new categories covered by the First Schedule or Second Schedule without approval. The Minister cannot change the selection committee without approval. The Minister cannot change a whole host of things in relation to sections 97, 98 and 99, transferring water pollution, air pollution and waste management plants, and so on, to the agency.

Of course, it is important that there would be approval of this House and the other House, but it would be very unreasonable if, during the long gaps when these Houses do not meet, a Minister was totally handicapped and could not make regulations under this or other legislation. The vast majority of regulations that are made in this country are made without any controversy and any problem because they deal with very mundane, technical, housekeeping matters. For the few that many cause concern, there is a procedure provided for dealing with them. If the procedure is not adequate it is a different matter, as Senator Ryan said. I feel very strongly about that too. We are being very unreasonable if we want to clog up the Order Papers of this House and the other House by a whole host of regulations having to be approved before they can have the effect of law. Quite honestly, we are severely delaying and handicapping the implementation of this legislation.

As we go through the sections we can debate whether or not they are so fundamental that the regulations should be approved. That may be another way to approach it. Obviously this House and the other House has to approve this Bill or else it cannot have the effect of law. To require every single regulation about tiny, mundane, non-controversial technical matters to be approved by the Houses of the Oireachtas is, quite honestly, in my view, very unreasonable.

Mr. O'Toole: I have said this twice before and I consider now that I am being misinterpreted. The Minister made a very valid case for a Minister not being [935] able to bring in regulations during the course of long recesses, etc. In my first contribution I made it quite clear that I deliberately worded this amendment to ensure that could not happen. I want to read it again. My amendment does not prevent the Minister introducing regulations. All it requires is that when it is convenient, as soon as may be after it is made, the motion comes before the House. It goes on to say: “Without prejudice to the validity of anything previously done under the regulations.” There is no delay. It takes into account recesses, it takes into account the need for Ministers to address issues and deal with them. It is not correct to interpret me as saying that this slows down the process of issuing regulations. It does one thing only. It simply requires that they must at some stage be approved by the Houses. That is all that is required.

I want to make two positive points to the Minister, I said when I spoke first that I welcome the fact that within this legislation is the need for the affirmative process under the sections named by the Minister. I take the Minister's point that it seems a bit unnecessary that every single change should have to come before this House.

For instance, the extension of the functions of the agency is a major decision. That cannot be seen to be a minor decision. If the Minister would say: “as we go through them we will look at those points in the Bill where the Minister has power to issue regulations” and that we would then on each occasion say: “Is it appropriate? Should this not be included under section 7 (3)? We could add to it when it comes to Report”. I would be quite happy with that. I have no interest in slowing down the process. I have no interest in creating more paper work for people at any level. I want to make sure that the monitoring function of this House of the Oireachtas is also reflected in the Bill.

Mrs. Honan: The Minister has really answered my point. I was going to suggest to her that in the Bill a lot of regulations [936] may be made by the Minister. I accept Senator O'Toole's observations. The Minister has just said that other regulations under later sections may need what Senator O'Toole wants done. When I was looking at the Bill I found that the number of regulations in it are extraordinary. I have seen quite a lot of legislation going through this House. I have no trouble in saying that I am confused at times. When draftsmen are drawing up legislation for the Minister, is it necessary that regulations have to be in so many sections of this very important Bill? The Minister has said that she may take a different stand on regulations in later sections.

I come back to our input — it is something I have had strong views on for a long time — at times some of us should be consulted before legislation is put in place. Perhaps there should be more talking and more communication. Perhaps the Minister would take a closer look at this at a later stage and accept one of Senator O'Toole's amendments as he has strong views about the regulations. It will hit anyone who looks at Bills that it is full of regulations. Perhaps the Minister will come back on this.

Dr. Upton: More to the point that Senator O'Toole is making is the principle. I am not dissenting from that. It is written here that every regulation, no matter how trivial, no matter how urgent, no matter what the circumstances are, has to be approved. That is where I part company with Senator O'Toole as far as this amendment is concerned. It is the sweeping generality of it. I certainly accept that he has a valid point in relation to some regulations which can be made under this Bill but I do not believe that that concern should extend itself to trivial, routine regulations.

Mrs. Hederman: I have listened very carefully to the extreme good points made on both sides. In essence, I would not support these amendments. The principle behind them is good but, as has been said by previous speakers, there will be an enormous amount of very technical [937] matter involved. It will be very complicated and it could lead to a slowing up of the whole process. I know Senator O'Toole will say that that does not apply in this case because they can go ahead unless they are annulled at a later stage. It seems to me that it would be a tortuous process. I wonder would it not be possible to look at them section by section as we go along and see whether they could be included under section 7 (3). As we come to them we will see whether they should be laid before each House of the Oireachtas as stated in the section.

Mr. B. Ryan: I want to make it clear that I do not think Senator O'Toole has gone away from my point. The principle, whatever about the practice — the practice is doubtful — is that if Ministers attempt to make regulations that are effectively writing the law and go beyond their competence, as the courts would adjudicate on it, then they are going outside their brief no matter what the law says. The only bodies in this State who can write the law are the Houses of the Oireachtas.

There have been instances where regulations have gone through on positive affirmative votes, the classic one being the one on licences for restaurants to serve restrictive forms of alcohol, for example, beer and spirits, which made a laughing-stock of the Houses of the Oireachtas because of the effort that went into making sure that as few restaurants as possible would bother to apply. My own view is that if the restaurants were to challenge those regulations in the courts they would be ruled to be unconstitutional because they went beyond the spirit of any legislation or the principles of any legislation in creating obstacles.

The problem is the frustration of the way these Houses operate. Huge rafts of material never reach the floor of the House and are never discussed. In my view, secondary legislation is a particularly appropriate area for a special committee of both Houses of the Oireachtas. There used to be a special committee of the Houses of the Oireachtas to deal with [938] statutory instruments. It got swallowed up in the Committee on Secondary Legislation of the EC. It is an area that deserves to be scrutinised and the reports of bodies like that should be put before the House.

The real solution to this is to make sure that the sections which involve regulations are precisely written so that the discretion of the Minister is what would seem to be reasonable. I agree with Senato O'Toole. The solution will be to look at each section where there are regulations and if it appears that there are sweeping powers or matters that have not been thought of then, on Report Stage, section 7 can be amended to introduce provisions for other sections other than the ones already mentioned.

Miss Harney: That is a reasonable approach. I have before me, and I will not bore the House by reading them, some regulations made under the Planning Acts. I can tell Senators the level of detail is quite extraordinary. I do not think too many Senators would ever be interested in coming in here to seek to approve them. Basically, most regulations deal with very technical, mundane, non-controversial matters. There are very few occasions when we ever want to seek to annul them but the problem is the method by which they can be annulled. That is a different matter. I have been on the other side of the House and I have tried to do it and I know how virtually impossible it is. We are using a sledgehammer to crack a nut here. If we deal with it as we go through the sections that might be the more appropriate approach.

Amendment, by leave, withdrawn.

Amendment Nos. 43 and 44 not moved.

Question proposed: “That section 6 stand part of the Bill.”

Professor Murphy: I would like to apologise to Senator O'Toole. Earlier, I made a rather smart remark that my [939] amendment was more succinct than his. In fact, it opened itself to the charge levelled quite rightly by the Minister that it would lead to undue parliamentary delay whereas, in fact, Senator O'Toole's amendment would not have incurred this same accusation. I am sorry for jumping the gun.

Question put and agreed to.

SECTION 7.

Professor Murphy: I move amendment No. 45:

In page 12, subsection (3), lines 32 and 33, to delete “subsection (2) or under section 21 (6) (a) 97, 98 or 99” and substitute “this Act”.

This amendment is based on the same general principles which I enunicated when moving the previous amendment, namely, the need for ministerial powers to be seen to be restrained in favour of Oireachtas supervision, so the same principle underlines it. I do not see why, if a draft order being laid before the Houses of the Oireachtas shall not be made until a resolution approving it has been passed by each House, why this should apply to particular sections rather than to the Act as a whole.

Miss Harney: As the Senator said, the arguments really are similar to the ones we have just had and for similar reasons I do not think it is desirable that we would again write this amendment into the sections referred to in the Senator's amendment. However, given the approach we adopted a few moments ago, we could leave it at that and it would probably be appropriate.

Amendment, by leave, withdrawn.

Question proposed: “That section 7 stand part of the Bill.”

Mr. B. Ryan: I would be grateful, if it is possible, to get a reasonably elaborate [940] answer on this. Subsection (2) says, “the Minister may by order revoke or amend the First Schedule or the Second Schedule.” I am perfectly with the procedure for amending both Schedules. We can all see why. Processes may become out of date and may no longer need to be included and new processes may be introduced that need to be included in the Schedules. Why would the Minister ever want to revoke the entirely of the Schedule? That is what I do not understand. I can understand why they would want to amend it, perhaps in great detail, or rewrite it, but revoking the Schedule means there will be no Schedule. I do not understand why. I would like an explanation.

Miss Harney: A good question. I am advised that there might be so many changes required that it would be more effective to revoke it and bring in a new Schedule. There is nothing sinister involved here. This is one of the orders that would have to be approved by both Houses of the Oireachtas.

Mr. B. Ryan: That would mean there would be a period when there was no Schedule.

Miss Harney: No.

Mr. B. Ryan: It appears to me there would have to be a period when there was no Schedule because one would have to be revoked. If the Minister introduces two of them together it is only an amendment.

Miss Harney: The existing one would obviously stand until the Schedule was revoked. As that cannot be revoked without the approval of the Houses of the Oireachtas obviously the existing Schedule would stand.

Mr. B. Ryan: I am not attributing any malice and I never thought there was anything sinister in it. I believe somebody in the parliamentary draftsman's office was being enormously careful. The word “revoke” — I appreciate that it has to be [941] approved by the Oireachtas — means all the Oireachtas can do is refuse to revoke it or agree to revoke it. It cannot debate anything else. It seems to me that somebody somewhere was being cautious. If we were to introduce amendments to allow the Minister the authority to revoke two Schedules of a major piece of legislation we would have to get ourselves involved in very complex English. It seems to me that “amend” is more than adequate and that “revoke” is a very large power to give a Minister under whatever form of regulations. The word “revoke” speaks for itself.

Miss Harney: I am advised that this is the standard procedure in legislation of this kind. The word “revoke” is always included. To make it perfectly clear, the Minister cannot simply revoke it. It has to be approved. It is like bringing a new Bill into the Oireachtas. The regulations would have to be approved. It is not giving the Minister wide-ranging powers, since the approval would rest with the Houses of the Oireachtas. The Senator can take it that there is nothing sinister in this. It is not intended to establish this agency and then to seek to remove it of all of its powers or licensing functions.

Mr. B. Ryan: I do not want to go on too long on this point. The problem between myself and the Minister is that I do not anticipate ever being a Minister and, therefore, I am particularly sensitive to the way in which legislation is drafted.

(Interruptions.)

Mr. B. Ryan: What happened to Senator Ross — I can be quoted on this for the rest of my life — will never happen to me.

Professor Murphy: Nothing happened to Senator Ross. Something is happening to Fine Gael.

Acting Chairman (Professor Conroy): Will Senator Ryan stay on the section?

Mr. B. Ryan: Whatever Senator Ross [942] caused to happen to Fine Gael I will not cause to happen to them, whatever else I may cause.

Acting Chairman: Could we please keep to the Bill?

Mr. B. Ryan: The point which I do not want to labour is that I have no time for the view that this is standard practice. I have sat here and heard quite extraordinary pieces of legislation justified on the grounds of “We always did it”. If we were actually to follow that through, we would not change very much. My view is that it is an improper use of regulation to give the Minister the right to revoke large sections of the legislation. In principle, it could be inserted in section 2 and it would then state that the Minister may, by order, revoke the entire Bill. I am prepared to be reasonable about regulations but I do not believe the word “revoke” should be inserted. I will not make a big issue of this, I simply want to put on the record, as one who is interested in the legislative process, that words like “revoke” should not come under any ministerial power, however constrained. They are matters for the Oireachtas.

Miss Harney: In keeping with Senator Ross's decision, I have discovered the things one least expect to arise cause some of the biggest difficulties here. I am advised that if the word “revoke” is not included and, apparently, its exclusion has caused problems in other legislation, one could never seek to amend the whole Schedule. That is why it is included.

Question put and agreed to.

Section 8 agreed to.

SECTION 9.

Acting Chairman: I should mention that amendment No. 47 is an alternative to amendment No. 46 and they will be discussed together.

[943] Mr. B. Ryan: I move amendment No. 46:

In page 13, subsection (1) (b), line 12, to delete “ten” and substitute “five”.

I have never been enthusiastic about locking people up and I have spent a considerable part of my parliamentary time here objecting to people being locked up. A sentence of ten years is, in fact, in excess of the average length of a life sentence here which is around seven years. I have a distinct recollection of the Minister raising some objections to that in the other House in another incarnation with the present Minister for Foreign Affairs when he was Minister for Justice. She felt it was too short. I believe that ten years as a maximum penalty for something like this, however serious, is excessive. I do not believe in locking up people for ten years unless they are a major threat to human life and safety. I do not believe in it, in principle, and I am not prepared to allow legislation which contains a penalty of the severity of ten years in prison to be passed.

Five years would be a reasonable period. One year is too short because that penalty is the preserve of the District Court. Five years, as a maximum sentence, is the sort of sentence that should be imposed. There are many other areas of legislation where excessive penalties are set out. The idea of a five year sentence for car theft, for instance, is ludicrous in the extreme. I believe ten years is too long I am opposed to it because we should not have those sort of penalties in our legislation, except in the most exceptional circumstances. Therefore, I suggest a period of five years as a maximum sentence.

Mr. Naughten: First, let me put on record that there is a drafting error in amendment No. 47. It should have read “line 11”, not “line 12.” I understand it is inappropriate to move that amendment at this stage. Therefore, I will reintroduce it on Report Stage.

With regard to amendment No. 46, I [944] certainly support the sentiments expressed by Senator Ryan, that ten years is far too great. That type of sentence is more in line with the crime of murder than with a particular offence. We are talking here basically about a life sentence, ten years. I agree with Senator Ryan that a ten year sentence is far too great.

In relation to amendment No. 47, I included the figure “one” instead of “ten”. I believe that £10 million is far too great a fine. There are very few companies who could tolerate that sort of fine. Perhaps a fine of £1 million is not sufficient but £10 million is far too great. When one considers that amendment with amendment No. 49 I envisage a situation in which a company causing severe pollution — where prison sentences or fines which are envisaged here would come into play — would have to be responsible for correcting the damage done. I believe that the figure of £10 million is far too severe. Equally, I believe the figure of ten years is far too great. Therefore, I ask the Minister to examine the possibility of accepting amendments to section 9 along the lines of those two amendments.

Mrs. Doyle: I support Senator Ryan's amendment. Ten years is very severe for the type of crime envisaged. In fact, I am trying to think as we talk what type of crime in terms of abuse of the environment would merit a ten year prison sentence. I disagree, with respect, with my colleague, Senator Naughten, in his view of reducing the £10 million to £1 million, as his amendment intended. I do not think £10 million is too much for some of the multinationals.

Mr. B. Ryan: Hear, hear.

Mrs. Doyle: It is all relevant to profitability, turnover and so on. A fine of £1 million in those cases would hardly be felt. We have had cases here without an Environmental Protection Agency in place, where well over £1 million has had to be paid to individuals and families in [945] relation to environmental problems of one kind or another.

Mr. Naughten: That is compensation.

Mrs. Doyle: I am talking about the moneys involved. A fine of £10 million is about right bearing in mind some of the bigger multinationals with which we might be dealing. One has to assume that there will be a maximum fine of £10 million and that not every citizen who may contravene the law is likely to be presented with that type of a fine. I support amendment No. 46 but not amendment No. 47 in this case.

Mrs. Hederman: I disagree with my colleague Senator Ryan, and indeed also with Senator Naughten. By putting in what may appear on the surface to be ferociously heavy fines and the possibility of jail sentences, we are making a statement about how seriously we regard damage to the environment. Let us face it, it is not taken very seriously in many quarters. People still consider the environment as something expendable. I believe there will be a great deal of difficulty when the time comes for the implementation of this Bill and when it starts to percolate to the offenders and polluters that this Bill will make them clean up their act.

I take Senator Ryan's point that very often locking people up for many offences does not achieve anything. However, in this case, unless the polluters, the managing director, chairman of the company, or whoever, is faced with the remote possibility or remote expectancy that he or she might go to jail for a substantial period, they will not take the matter seriously. The experience in the United States has shown that where industry is concerned fines are really not sufficient because they can insure against fines, no matter how heavy they are. The only way to get people to take pollution seriously is by putting, or threatening to put, them into prison.

I remember the well documented case of the Central Bank where 30 extra feet were added to the top of the building by [946] mistake. In that case they eventually got away with it, yet, we have all witnessed people putting a small, modest extension to the back of their house and the local authority coming down on them like a ton of bricks. That is the reality of the situation. If that architect — or any other architect — had faced the possibility of going to jail, I am quite sure there would have been a very different outcome to Wood Quay, and that 30 feet would never have gone on. That is exactly what we are talking about here. After all it states “not exceeding ten years”, it is not obligatory that they go to prison for ten years. It simply says it will not be greater than ten years. It might be one, two, three or four years or anything up to ten years but not more than ten. The amount of the fine and the possibility of a prison sentence is welcome because it shows the Minister means business. I compliment her on having the courage to put in these fairly hefty fines and jail sentences.

Dr. Upton: I support the amendment that we reduce the jail period from ten years to five years at the maximum. I am not enthusiastic about locking people up. I wonder how my distinguished colleague, Senator Costello, would deal with these large industrialists when they find themselves in jail? In his capacity as chairman of the Prisoners' Rights Organisation how would he handle that aspect of his work?

I have no problem in relation to the £10 million fine. The reality is that for some industries a £1 million fine may not be excessive given the sort of money which is at stake. For that reason, I would be quite happy with the fine of £10 million and, indeed, I would be quite happy to see that figure adapted for inflation as time progresses.

Professor Murphy: I accept the section as it stands and I support Senator Hederman. I think the threat of severity is called for in these matters. One of the reasons the whole litter legislation is a joke is because nobody implements it or takes it seriously. I am not sure a term of imprisonment is provided for in the Litter [947] Act but the famous £800 penalty is certainly not enforced. These things have to be put before the public if the environment is to be taken seriously. One of the reasons maybe that revenue under our income tax operation is shamefully falling behind its potential is that the violators of the income tax code, those who refuse to pay their proper tax, know they will not go to jail because they are middle class, whereas in the United States of America — whatever else we might say about that society — the prospect of prison looms very large before all classes and there is no respect for collars and ties or anything of that kind.

I would imagine that if people were put in jail for ten years for violating the provisions of this legislation Senator Costello would ensure they would be treated humanely and given the creature comforts to which their class and station entitle them.

Miss Harney: I find the last remarks surprising because, while Senator Ryan has no problem with the large monetary fine of £10 million, he does have a problem with putting people into prison. This legislation will be judged in a number of ways. First, people will look at the powers and independence of the agency, the transparency of decision-making and so on and the penalties that are imposed if people do not abide by the agency's diktat, as it were. The Government are very keen to ensure that we are serious about environmental matters and that seriousness is reflected in a number of ways, particularly where penalties are concerned. The kind of people who would be involved here are those for whom jail would be a major deterrent. They may not be too turned off by a monetary fine because they would not have to pay it personally. However, if the management of a large concern whose company had destroyed the water supply in a whole region causing damage to public health and involving the State in having to pick up the tab, knew that as a result of their gross negligence on conspiring to wilfully cause negligence that [948] they might end up spending up to ten years in jail, then they might think again about their activities.

It is in order that this legislation will be tough, will be seen to be tough and where gross negligence is involved that an appropriate fine and an appropriate prison sentence can be imposed. In relation to Senator Naughten's amendment, if we were to reduce it to one year, for example, we would be imposing a lesser prison sentence on somebody who was involved in an offence under this Bill than someone involved in an offence under the Water Pollution Act. Quite honestly, I do not think that would be reasonable.

There are pollution incidents that can cause major damage which might never be undone or which might take a long time to undo. We must have tough legislation which is seen to be tough and, in particular, the Oireachtas must show the courts, who have to be tougher in the way they approach environmental legislation, that they mean business. The courts will look very seriously at the penalties imposed here, they will see it is the collective mind of the Oireachtas that they want the courts to be serious about breaches of environmental law and that they want heavy penalties and heavy fines imposed.

A fine of £100 million was imposed as a result of the Alaska oil spill; Shell in the UK were fined £2 million for the Mersey oil spill. Those kind of fines are not out of proportion in other countries and the reason that fines to that extent are imposed is because the kind of damage involved is so enormous. Even a fine of £10 million might not have a high enough monetary value for certain damage that could be done to our coastline and our water resources. If a company destroyed the water resources in a region, what would it cost to repair and undo that, what would the implications be for public health and so on? I feel very strongly about this. I am very keen that these penalties will be as tough as possible and be seen to be tough. If we were to in any way weaken the penalties in this Bill it would indicate to the wider public, particularly to those who will be licensed by [949] this agency, that may be we are not so serious after all.

The whole debate about whether people should go to prison and how we deal with people who break the law is a matter for another day and for another agenda. It is a separate issue. Certainly prison is seen as a place of detention for people who have committed serious wrongdoings and if that is how our society looks on criminal behaviour then we should not exclude those who cause serious environmental damage from that kind of sentence. One of the problems in this country and in other countries is often associating crime with what is called the white collar sector. It is often assumed to only be associated with those of a different class. This Bill shows quite clearly that regardless of who you are, if you cause serious environmental damage, it will be up to the courts to decide and adjudicate on it; it will not be a matter for the agency, it will not be a matter for us. We should give the courts the maximum discretion to impose serious fines and up to ten years in prison. It is not a mandatory ten years in prison, it provides for up to ten years in prison if something very serious has occurred and if people have wilfully conspired with each other to cause damage. At the end of the day if the agency are unable to enforce these penalties it may prove very difficult for people to follow their directions to concur with their monitoring regime and so on. They need this kind of weapon as the final deterrent to enforce the provision of this Bill.

Mrs. Honan: Having listened to the Minister I realise this could well be one of the most important sections in the Bill although up to now, I must admit, I did not see it as such. The Minister referred to tough law. My only worry is — because Senator Murphy referred to previous legislation and the fact that we do not make it work — whether the public in general realise how important and tough these penalties are? The agency will try to save the environment by asking for tough penalties to be put in place. Both the jail sentence and the fine are very [950] substantial but is the Minister satisfied that this section will be enforced? We have seen legislation signed by the President and passed into law but the penalties enshrined in it were not effective. This is one of the most important sections in this Bill.

Mr. Howard: I am quite taken by the severity of the penalties in this section. I have no objection whatsoever to somebody who, deliberately, through carelessness or for whatever reason is responsible for an offence under this section being liable to imprisonment. I have no great qualms as to whether it should be five or ten years, but Senator Ryan's preference for five years rather than ten years certainly impressed me. What concerns me, for a completely different reason — I have to be careful how I phrase this because I could be misunderstood — is the penalty of £10 million. That is an excessive figure. I accept what the Minister said about the £100 million penalty for an oil spill in Alaska and the £2 million penalty for an oil spill in the UK. If this £10 million penalty is in line with the penalties imposed in neighbouring countries and countries similar to ours, I will be happy with it, but if it is far in excess of penalties in other countries I wonder if use might be made of that position by countries who are competing with us for new industry. I have not read, heard or seen a comment from, for example, the IDA, in relation to the effect this might have. However, my fears may be totally unfounded. There is a point I must raise on the issue of the penalty of imprisonment. That can apply from the top rung of the ladder down to the bottom rung of responsibility within any industry. I agree with that. That is the great deterrent. I wonder what the Minister's reaction will be to my observation that the IDA are competing for industry here against other locations. Are we providing a weapon to those locations to, say, forget about Ireland where there is a £10 million penalty. If that penalty is in line with penalties for similar offences in the countries I have referred to that is fine, but if we are beyond them I see a danger.

[951] Mr. Finneran: I know now why there is a vacant seat between Senator Naughten and Senator Doyle, it is because they do not agree on matters. Perhaps we could get Senator Ross to fill the void. We must bear in mind that two areas are involved here. For an offence under the Bill we are talking about imprisonment for six months and a fine of £1,000. It is on indictment that the large fine and, indeed, the prison sentence, apply. It is very important that the court should have discretion and we rely on the courts in that regard. It is very important that we give a clear indication of our intentions in this Bill. If we are serious about the protection of our environment then we must send out a message. The courts have discretion later. If we are serious in our attempt to protect the environment then we should put down markers. I would be opposed to any diluting of the provisions of this section. I oppose the amendments.

Mr. B. Ryan: I will be happy if the Minister multiplies the fine by ten. I have no problems at all about penalties. My problem is not about penalties, but about prison. I disapprove of prison. It is a useless institution which does more harm than good, rarely deters anybody and ends up in most cases being a university of crime. What the Minister said is true, the people whom she envisages going to prison for environmentally related offences are precisely those who are deterred by prison. Most of the people who end up in jail are precisely the people who are not deterred by prison. One of the reasons prison is a disaster is because it does not deter those whom it is meant to deter. Judges do not send their own class to jail with the same enthusiasm that they send those of a different class to jail.

The sentences imposed on people who are convicted, for instance, of serious white collar crimes are minuscule by comparison with the sentences that kids sometimes get for stealing a car. We do not even prosecute drunk drivers for the more serious offence of culpable manslaughter and as far as I am concerned that is a class-related decision as well because they are usually respectable [952] people. Even if they kill somebody they get away with quite trivial sentences relative to the crime they have committed.

The ten years jail sentence — it is because of its symbolic value that I object to it — is a symbol and nobody of any significance in our society will be sent to jail because our courts do not sent people of significance to jail. Senator Murphy is right. With all my reservations about the United States and the United Kingdom, they have a better record of sending people of significance — I use the word with a certain inverse quality to it — to prison. They have done so in the United Kingdom. People go to jail in Britain for fiddling their taxes, as Lester Piggot found out to his great embarrassment. People go to jail — including an ex-Vice President of the United States — for fiddling their taxes. We do not have that regime or that climate here. The fact, and I will be very careful here, that the chief executive of a certain major dairy co-operative in the south-west did not end up in jail for the carry-on in a certain town in Kerry seems to me to suggest that we have a fairly ambivalent attitude to these matters. This also applies to the documentary evidence that came before the courts, in the full view of the public, of conspiracy to evade the environmental legislation.

Acting Chairman: Individuals outside the House should not be referred to, even if they are not actually named they could be identified.

Professor Murphy: On a point of information, where does it say that in Standing Orders?

Acting Chairman: It is a custom of the House that no individual is referred to. It is not necessarily a Standing Order but it is a custom of the House.

Professor Murphy: I have great difficulty in accepting these ad hoc customs.

Acting Chairman: It is a long established custom.

[953] Mr. B. Ryan: The two most unseen publications in the State are the books which contain the rulings of the Chairs of both Houses of the Oireachtas which are available to nobody except the Cathaoirleach of the Seanad and the Ceann Comhairle of the Dáil. In them are the bases for all these rulings. I am very sensitive and very careful not to refer to individuals. If I was in any way abusing the privilege of this House let me say I am simply putting on the record of the House a case that was reported in the national newspapers — I will leave out the name of the individual — in which there was a scandalous conspiracy to evade the enforcement of the environmental protection legislation that existed at that time. It was reported in full in the courts that people conspired to keep people waiting at the gate while certain decisions or certain processes were altered at the far end where the discharge was entering the river. I am simply pointing out that you can get to that level of deliberate conspiracy and nobody goes to jail because of that. I am not, therefore, arguing about the penalty, my objection is to prison. This is where I suspect I disagree with my colleagues in Fine Gael. I do not approve of prison. I do not think it deters, I do not think it works, and it usually does more harm than good. In this case I feel the obligation to be consistent. Nevertheless, I will not make this into an enormous argument. I have made my point. If the Minister wants to increase the penalties to £20 million or £100 million, I will quite happily support that.

Mr. Naughten: First, let me clarify what I said because I think the Minister misunderstood what I said. I support the amendment by Senator Ryan to reduce the ten year prison sentence to five years. With regard to the other amendment, I was concerned about the amount of money involved in the fines. I said I did not mind if a figure of £5 million was put into the Bill. Senator Howard made the point that we could put legislation in place which might in time to come deter an industrialist from coming in here. We have to be careful — and I have said this [954] throughout the Bill — to get the right balance so that we do not damage the future job opportunities for many young people. I wish to point out to the Minister that, in view of amendment No. 49, where the court may order a person to remedy or pay for the remedying of any damage caused to the environment by the offence, when you take those two factors into account the figure of £10 million is very severe. It may be the cause of companies ending up being bankrupt and they may not be able to pay for the clearing up of whatever damage has been done. It is important to get the right balance.

Recently we had a freshwater report on the upper regions of the Shannon. Two rivers were polluted by sewerage works operated by Roscommon Country Council, all because of lack of funding from the Department of the Environment. They were the polluting sources of the River Shannon. I ask the Minister to examine those matters for Report Stage.

Mrs. Hederman: We have discussed this at length and people have already made up their minds. I feel that Senator Ryan is against sending people to prison. What he is saying is that we are sending the wrong people to prison. I go along to a large extent with Senator Ryan in that I think we are sending the wrong people to prison. As he says, prisons become universities of crime and do not cure anything. I believe in this instance, as the Minister said and as I said earlier, that the threat for a serious pollutor of going to jail will be a deterrent while the largest fine you could mention simply will not. That is what is important.

Perhaps the judges might have an opportunity to send one of their own class to jail, as Senator Ryan pointed out. It has been my bitter experience that the judges and the courts are very poor at supporting local authorities in the rare instances when local authorities try to bring to court culprits who have been in breach of the Planning Act. The judges have an abyssmal lack of understanding of what the Planning Act is about and [955] of their willingness to mete out fines or something that would be mildly commensurate with the offences committed.

I remember one instance not so long ago when Dublin Corporation took to court somebody who had converted an entire house in Dartmouth Square into offices without permission. They got off because the developer produced the son of the previous owner who had been an architectural student and they were able to say that he did drawings of the diningroom table and of his bedroom and the judge let him off. The corporation had pursued the case for months and the case was let go. The judges are always on the side of letting these people off. They do not take it seriously. I absolutely believe that, unless very hefty penalties are written in here and the threat of jail, the judges simply will not give the back-up that will be required by the agency to implement this.

Professor Murphy: If Senator Ryan has an objection to imprisonment per se on moral, philosophical or aesthetic grounds, logically his amendment should propose deleting all references to imprisonment, not simply reducing it from ten to five which is just a form of inconsistency.

Mrs. Doyle: There are a few points I would like to take up. I feel the threat of imprisonment for white collar workers, whether we are talking about one year, five years or ten years, is effectively the same. It has a far greater impact than the threat of a large fine. I have no difficulty with the level at which the monetary fine is pitched. I find ten years quite excessive, but I will not press it because I understand fully the point the Minister made in terms of the impact a long term of imprisonment may have in sending a message to those who might pollute the environment that we take this very seriously and there will be no messing about as far as this State is concerned.

I think that ten years is too long for the type of crime. I presume we are not talking about premeditated crime in this [956] area. If so, we need to take a long look again at what it is about. I am not sure of the implications of it in specific cases. Relative to other prison terms in this State, ten years for this type of offence would seem rather long, and that is conviction of indictment.

Reading the section, summary convicton and a fine not exceding £1,000 is very little in many cases. Perhaps it is on that area we should concentrate rather than the other. When you are talking about a fine not exceeding £1,000, that will not even make a dint past the secretary in the general manager's or the chief executive's office of some of these multinationals. I wonder if that figure is pitched too low to be a preliminary warning to those not to cross the State's law in this area. It seems very little. I know we are getting into the area of District Court versus the rest and you will start with the District Court. Do I recall correctly that that figure which is applicable to the District Court is being increased? Did I not see or read something recently about the levels of fines applicable at the different court levels being increased, doubled or trebled? I think it is gone up to £4,000 at District Court level. I am throwing that out for clarification. I certainly read something in relation to this recently. Certainly, £1,000 would appear to be derisory. It is a lot for the average Joe Citizen who may have broken the law, but the judges would take that into account, but certainly for the multinationals it will not have much of an impact.

In relation to what my colleague, Senator Howard, stated, I would not have the same concerns that we might be out of step with some of the other countries. Because at present, after Puerto Rico, we are considered internationally as the dumping ground for dirty industries. We want to attract as much industry to this country as we can and I do not see an insistence on strict environmental standards as any deterrent to the type of industies we want. Concern for the environment does not threaten development or industry in this country in any way; in fact, it enhances it. I would not [957] share his concern that by putting in a figure of £10 million we might frighten off industry, because any industry that would need to be frightened by talking about indictment under the Environmental Protection Agency Act is one we need to take a long and careful look at anyway. We need a realistic approach. We need jobs, but even more important than jobs we need environmental standards which in the long term will create more jobs. We should not be slipshod in this area.

Miss Harney: I certainly agree with the points just made by Senator Doyle in relation to foreign industry. Senator Howard was concerned that if we pitched the fine so high and were higher than other countries it might act as a deterrent to foreign industrialists locating here. I think the only industrialists who would be put off by the high level of penalties would be those who intended to come here to pollute or destroy our environment. Any decent industry that wanted to operate here would not be in any way deterred by the level of penalty involved in this or any other legislation. On the contrary, I think they would be encouraged. Many people in the private sector in industry have said to me that they welcome the level of the fines and that they would like to see them enforced because those who obey the law and adopt proper standards want to ensure that others do not get away because they do not have the same high standards.

That was one of the difficulties for many people in industry — the perception that perhaps they might have got away with spending a lot less money, having fewer controls and fewer people employed in environmental monitoring and so on. When I met many organisations before this Bill was drafted the one thing that was said to me time and time again, both by the IDA, the Confederation of Irish Industry, the Federation of Irish Chemical Industries and many other people involved in Irish industry was: “Give us the legislation, but please make sure it is enforced. We will accept strong, tough legislation, but we want to know that that legislation is going to be enforced”. [958] I believe they are entitled to know that the legislation will be fully enforced.

It seems that some of the Senators want tough laws, they want to strengthen the Bill as we go through the sections, but when it comes to the really tough stuff, it is a little bit too tough. One of the main reasons for the establishment of this agency was the perception among the public that the existing ways of enforcing environmental standards were not appropriate and that there was a tendency, perhaps, to have a soft approach, to say they had not got enough money, or it might close them down, or let us do it this way and let us not bring the full rigour of the law against somebody involved in pollution. I do not think that kind of approach is acceptable. If you have an independent agency you will not have that kind of approach. However, very often there is a tendency to lobby in favour of group X, group Y or individual X or Y and not have the full rigours of the law applied to them. That certainly would be totally unacceptable.

I want to make it clear that the fines and so on will obviously be imposed by the courts and not by the agency. They are not mandatory fines, they are discretionary fines of up to £10 million, up to ten years imprisonment and so on.

In relation to Senator Ryan's philosophical approach to prison, it is more appropriate to a different debate. The fact is that in our society for those who are considered to have done serious wrongdoing, convicted by the courts of serious wrongdoing, considered a danger to society for various reason, that is the penalty and the manner in which we have sought to deal with them. Once that level of penalty exists it should certainly apply to environmental legislation.

In relation to the fines on summary conviction, I too would have liked to have those fines higher; but the Attorney General's office have very strongly advised that minor courts, the District Court being a minor court, cannot impose a fine at a higher level than £1,000. The legislation that Senator Doyle referred to is going to extend the jurisdiction of the [959] court as far as awards and so on are concerned. I do not know if it actually applies to fines. If it did, we could obviously have a look at this again at a later stage; but we were very strongly advised in the drafting of this legislation, as we were with the water pollution legislation, that we could not go higher than a fine of £1,000. I accept that there is a large discrepancy between the highest fine of £1,000 on summary conviction and then what would appear to be an extraordinarily high fine of £10 million on conviction on indictment.

Conviction on indictment would be for very, very serious pollution incidents and I do believe we need that kind of weapon. To lower the fine to something like £1 million would be too soft. It may well be worth somebody's while not to put in the appropriate technology, not to take the appropriate measures, because the fine might be actually cheaper, if it were at a maximum of £1 million, than buying the equipment and putting in all the controls and so on. It would also indicate to the courts that if £1 million was the highest fine, then that must be for something really serious, and degrees of seriousness were obviously to go way below that. You would probably find that the average fine on indictment would be very low indeed and I do not think that would be the desire. The courts will see that they have discretion to impose £1 million, £2 million, £0.5 million, £5 million — that there is a wide discretion left to the courts. Obviously, they would only consider imposing the high fine for a very serious matter indeed. I believe it is appropriate for the circumstances in which we find ourselves and certainly it compares favourably with the kind of fines that are imposed now in other jurisdictions.

Amendment, by leave, withdrawn.

Amendment No. 47 not moved.

Acting Chairman: Amendments Nos. [960] 48 and 49 are related and may be discussed together.

Dr. Upton: I move amendment No. 48:

In page 13, between lines 26 and 27, to insert the following new subsection:

“(4) Where a person has been convicted of an offence under this Act the court may order that person to remedy (or pay for the remedying of) any damage caused to the environment by the offence.”.

This amendment is being proposed primarily to ensure that the pollutor pays for the damage. It provides for the courts to make orders that somebody who causes damage from pollution can be forced to repair and to remedy that damage. I understand that some of the provisions which are covered in this amendment are also covered in other areas of the Bill, but I would hope that the Minister might accede to including them here at this point in the Bill for a variety of reasons. One is that it does not distinguish between licensed and unlicensed industries. It also provides that people who are convicted in the District Court, where the fine is relatively modest, would also have the added burden of having to clean up and repair the mess which they had caused. It is also partly introduced out of an anxiety to ensure that the people who cause pollution should be subject to, as it were, the general effects of civil actions in the courts, whereas most of this Bill seems to deter people through the criminal law.

Mrs. Doyle: I second the amendment, if I am in order, because the two amendments are identically worded so we can really take them as one.

Acting Chairman: We are doing so.

Dr. Upton: Great minds think alike.

Mrs. Doyle: Notwithstanding any other provisions in the Bill, I feel that section [961] 9, which deals with penalties generally, should have reference in another subsection — subsection(4) as we are suggesting here — to persons convicted remedying the damage or paying for the remedying of the damage they have caused to the environment. It is basically the “pollutor pays” principle, which I think all of us generally support. It is right through all types of environmental legislation and we cannot get away from it. I would like to see it specifically nailed into this section, notwithstanding, as I said, anything else that is in the Bill.

Mr. Naughten: I, too, fully support both of those amendments, which are identical. My view is that there is much more sense in having the pollutor pay for the damage he has done than imposing huge fines. To have this Bill work satisfactorily it is very important that the people who cause the pollution and cause damage to our environment will have to pay the price. It is very important to have that stitched into the Bill.

Mrs. Honan: Just reading these two amendments, which, as Senators Doyle and Upton have just said, are identical, I find myself nearly supporting the amendments.

Mrs. Doyle: Go on, live dangerously. Support them.

Professor Murphy: It is that kind of day.

Mrs. Honan: I notice that. We are all gone daft. Senator Ross's departure to Fine Gael has had a desperate effect on the House. It did not affect me. I never mentioned his name, except for now. I am not too pushed where he goes. Perhaps the Minister might look at this amendment even at this stage. I think it would make section 9 a much better section and I find myself — maybe I am wrong — nearly supporting my two colleagues.

Miss Harney: I think Senator Honan [962] is considering running on the Trinity College panel now that there is a vacancy.

Mrs. Honan: I will stay where I am.

Miss Harney: I would like to have another look at this matter and perhaps come back on Report Stage.

Amendment, by leave, withdrawn.

Mrs. Doyle: I move amendment No. 49:

In page 13, between lines 26 and 27, to insert the following new subsection:—

“(4) Where a person has been convicted of an offence under this Act the court may order that person to remedy (or pay for the remedying of) any damage caused to the environment by the offence.”.

Amendment, by leave, withdrawn.

Section 9 agreed to.

SECTION 10.

Professor Murphy: I move amendment No. 50:

In page 13, lines 28 and 29, to delete “prosecuted by the Agency,”.

If the agency is to be the beneficiary of finest imposed by the courts for an offence under this Bill, then it does not seem consistent to stop at cases which are prosecuted by the agency itself. Why not provide that all court fines be paid to the agency, irrespective of who initiates the prosecution? That is the purpose of this amendment.

Miss Harney: While I can understand the motivation behind this amendment and the benefit as far as the agency is concerned in that it could receive some additional revenue, it would, first of all, be totally at variance with our existing legal system in that fines imposed on indictment go to the State rather than to [963] the individual who does the prosecution. But, in relation to the overall provisions of this amendment, it would mean, for example, that regardless of who took the prosecution, whether it was a local authority, the Minister or the DPP, the fines would go to the agency. I think that would be unfair. The fines would help to defray the State's expense of having to undo the damage in some cases. It would be important that the fines would remain with the State rather than be earmarked for either the agency or any other body. Therefore, I am afraid I cannot accept the Senator's amendment.

In taking these prosecutions there would obviously be enormous expenses for the DPP. There are enormous legal costs involved in taking a case of this kind. It would not be reasonable in all cases that that fine would go to the agency. It may well be the case that the State, through the local authorities or through the Department of the Environment or whoever, would have to begin to undo the damage if the public water supply was damaged, or whatever. It would be appropriate that any serious fines imposed under this section on indictment — obviously the agency will get the fines for the cases it brings itself under summary conviction — would go to the State and, hopefully, at the end of the day would go towards undoing the damage caused. I am sorry that I cannot be helpful on this occasion as I have been on other occasions. I hope that that is acceptable to the Senator.

Professor Murphy: The purpose of giving the agency the money under the fine is to enable it to recover its expenses? The principle behind the section is that it is not a matter of fund-raising for the agency, it is not a question of putting fines into the agency' coffers? I am asking a question here. Is the purpose of the section to enable whatever body initiates a prosecution to recover the expenses?

Miss Harney: The idea is that the agency will be prosecuting and taking it in cases on summary conviction, but the [964] DPP will be taking the more serious fines. The purpose of this section is to allow for the payment of the fines in the cases taken by the agency to go to the agency, but other fines would go into the State's resources, which is the case at the moment. The agency would not have the expense of taking a case on indictment. That would be done for them by the Director of Public Prosecutions.

Amendment, by leave, withdrawn.

Acting Chairman: I regret to inform Senators Doyle and Naughten that amendment No. 51 is out of order and cannot be moved.

Amendment No. 51 not moved.

Question proposed: “That section 10 stand part of the Bill.”.

Mrs. Doyle: I am not in order in speaking to a specific amendment. I find it a little strange that my amendment might cause a charge on the State.

All I am suggesting is that there be no reduction on the costings to the State. We are into the area of nuances and subtleties, but I will not argue proceedings at this stage. I would like to speak to the point as I am speaking to the section, which I understand is in order. It is a one paragraph section so we cannot go too far wrong. It is all the same thing really. There are no subsections to it.

I would like to get an assurance from the Minister, if the agency manages to be particularly efficient and effective — and I hope that it does not have cause to earn a lot of money through fines because in that situation there would obviously have been an awful lot of environmental problems around the place — and collect a lot of money that the Government — Minister for Finance — Minister for the Environment or whoever is responsible, will not reduce the annual subvention of the agency by the amount they managed to collect. In other words, I do not want the agency to be penalised by the State for being particularly vigilant and effective in implementing the law. I would like [965] to know the Minister's views on this and I would like an assurance that there would be no clawback of Government funding commensurate with or equivalent to the fines the agency may collect.

Mrs. Hederman: I am very sorry to hear that this amendment has been ruled out of order. I must say that I am at a great loss to understand why.

Acting Chairman: It would involve a potential charge on the Revenue.

Mrs. Hederman: It is not really a Charge on the State. I will leave it.

Professor Murphy: Have we any idea of what kind of money we are talking about? I find it very hard to envisage the magnitude of the money coming in by way of recouping costs and so on. Is there any proportion between the financing of the agency by the State, which must receive it if it is to function, on the one hand, and the kind of income or revenue that comes into it by the way of fines? It seems to me that such fines might be quite trivial in comparison to the cost of running the agency. I do not see a proportion, as it were, between the two points being made in the amendment. This is just a matter of information.

Mr. B. Ryan: I was going to ask the Minister what subsection (2) of section 9 means. I think it has to do with the DPP's role in prosecuting on indictment. It appears to me that the revenue accruing to the agency from section 10 will be quite small. It will only be for summary convictions. It is a pity that we are not going to have some way of transferring this. I accept the costs of prosecution; but if there is a fine of £10 million imposed on somebody, it appears that under section 10 none of that will go to the agency. That hardly meets our objectives.

Mrs. Hederman: Sorry, I lost my train of thought for a moment. My apologies. It is a difficult section to understand. It [966] was difficult to understand why the amendment was out of order. Can we assume that, if amendment No. 51 is not put in, the agency's funding will be reduced?

Miss Harney: First of all, in relation to the funding of the agency, obviously that will be a matter for the Government of the day at any one time, but we estimate at the moment that in a full year the agency will cost about £8 million. The amount of money we are talking about here in relation to fines on summary conviction is very small. If the agency gets 100 convictions at the maximum fine, which is probably unlikely — 100 is a lot, particularly at a maximum fine — one is talking about £100,000. It is not an enormous sum of money but it is appropriate that that money should go to the agency. I think Government funding and the funding of State bodies has to be a matter for budgetary policy on a year-to-year basis. There is no way that I or anybody else can give an assurance that five years from now when others may be in Government that they are going to give X, Y or Z to a particular agency. There is no way of having a level of certainty about this except to say that because of the concern about the environment and the ongoing public interest and demand for strong environmental controls and action one can take it for the foreseeable future Governments of whatever shade are going to ensure that there is adequate funding for this agency.

A substantial proportion of the agency's funding — a much greater proportion than will come from fines — will come from the licensing role which the agency has been given. That is important. Of course, the agency will also be able to charge on a full cost recovery basis for monitoring so that the State does not have to subvent the monitoring charge on the agency of monitoring pharmaceutical, chemical or food processing companies or whatever. It is appropriate that they would pay the full cost of the monitoring. We estimate that about £1 million will come from both licence fees and direct monitoring levies. The bulk of the [967] money will come from the Exchequer through Government subvention on an annual grant basis. It would be very inappropriate for the Government to decide on an annual grant of, say, £4 million or £8 million or £10 million and then to say at the end of the year that they want £100,000 back which the agency received in fines. I do not envisage that. Even though the amendment is out of order and we should not probably be speaking to it, and it was the Cathaoirleach not I who ruled it out of order, I do not foresee this as a problem. I do not think we should dwell too long on it.

Mrs. Doyle: I accept the point adequately made that summary convictions and money that might accrue to the agency from same will not amount to a lot but there is a principle here as the Minister has pointed out. If, in terms of income to the agency from licences, charges and summary convictions, we are now to accept a future clawback from the agency commensurate with any such income, that could be dangerous. On the summary convictions alone there will not be much but they could have an income of £2 million to £3 million if you add all the licences, charges, fines, etc. Does that mean if they were getting £8 million in one year at the time from the Government that the next year they would only get £5 million if they earned £3 million the previous year? Are we talking about the principle of clawback now and is it likely to be applied? I would like an assurance on this matter.

Miss Harney: It is certainly most unlikely to happen. I do not think anybody has ever suggested a clawback in relation to fines the local authorities might collect under the Water Pollution Act, for instance.

Mrs. Doyle: They do not get funding to operate the Water Pollution Act; that is the difference.

Miss Harney: I was probably unwise to get myself into this debate. The intention [968] is that the Government will give an annual grant to the agency. There will be consultation when the agency is established between the director general and the board of directors, the Minister for the Environment and the Minister for Finance in relation to the initial budget. Thereafter, it will be a matter of consultation and a budgetary matter for Government. I cannot say with certainty that in the year dot there might not be restrictions on the funding but for as long as I am in a position to give commitments I would be of the opinion that this agency will be properly funded. It is the Government's intention that this will be a strong, fully resourced, properly funded independent agency to look after environmental protection and to ensure that high environmental standards are enforced throughout the country. The matter of the agency's budget would be more appropriately discussed in the context of the debate on the Appropriation Bill and not in the context of this Bill. We estimate the agency will cost £8 million in a full year but that may change depending on the staffing requirements and matters of that kind. That figure is an estimate at this stage.

Mrs. Honan: The wording of section 10 is much more positive than some of my colleagues seem to think. In the early debate on this matter a commitment was given because it was questioned whether £7 million or £10 million or what figure would be granted to the agency. I do not see why it should be written in that the fines shall be held because it is understood surely that the fines will be held by the agency. As the Minister has said, on top of that you have a £1 million payment for licences and monitoring. I am happy with this section concerning payments of certain fines to the agency. We cannot put everything absolutely into place and nobody knows that better than Members in this House. We do not know what any Government might do in three or five years time or in a shorter period.

[969] Mr. O'Toole: There will not be a change.

Mr. B. Ryan: An article of faith.

Mr. Naughten: And you are right.

Mrs. Honan: The commitment of the Government and the Minister in section 10 is positive and absolute. If this agency is the national success we all hope it is going to be no Minister would succeed in taking away fines from it in the years ahead.

Mr. Naughten: I understand this amendment had to be disallowed. Nevertheless the principal of the amendment is to ensure that the amount of fines collected by the agency would not reduce the funding of the agency by that amount and the Minister has told us she could not envisage such a situation. However, seven years ago the Ombudsman Bill went through the Dáil and certain guarantees were given then for funding. We all know the uproar that arose here some three years ago when the office was without staff for lack of funding creating a situation where there was a delay of up to two years on cases being examined. Can the Minister give an assurance to the House that there is no danger of that situation arising with this agency?

Mr. B. Ryan: I accept fully the Minister's intention but I want to tell her what used to happen in the case of institutions which I know well, the regional technical colleges. They got a budget from the Department of Education in which an estimate was made of the revenue they would raise from their own resources and one of the great problems was that if the regional college was enterprising and raised funds from other sources such as consultancy work or by staff using and renting out its facilities and if it exceeded its estimated income in a financial year the Department of Education would reduce their grant in the following year by the amount by which they had exceeded their own expected revenue. They had a continuing incentive not to raise funds [970] over and above what the Department of Education assumed they would get from a certain source. I would always be wary of the capacity of Government Departments to do things that look very clever but are often considerable disincentives.

Mr. O'Toole: I welcome the thrust of this section, as I always welcome intiatives which have the private sector supporting State enterprise and the public service. I welcomed it in the Insurance Bill and in the Companies Bill where requirements were placed on auditors to give certain information to the Government and to Government Departments and Ministers as appropriate. I agree with the points made by Senator Ryan and by Senator Doyle. I would not wish to see this provision being used to diminish the funding available to the agency. At a theoretical level if we were all agreed that the agency required £x per year to do their business and if half of that came from fines, I would not have any difficulty with that. I would see that a saving of taxpayers' money and, consequently, something about which we should all be in agreement. I have often said that the public service can be as competitive as any other group if they are let do their business. There is a danger about earmarking funds to that extent. It is like saying that our road tax should go to filling potholes, etc. It is a simplistic kind of argument. This is the way money can be directed into a particular resource or service. I do not have any difficulty, nor does anybody else, as regards the idea of the fines being put towards the agency. It is up to us at this end to ensure that this is not used as a means of reducing the effectiveness of the agency.

Mrs. Doyle: Before the Minister comes in, may I make a final comment, accepting that my amendment was out of order. Precedent would not allow any of us to take any comfort from the Minister's assurances on the point we are making. Examples have been given. We could all list numerous other examples through local government, the health boards and [971] various other bodies. We really need categorical assurance in so far as the Minister is in a position to give them to us that it is not the Minister's intention to clawback from the agency moneys equivalent to that they may raise either in fines or charges and licence fees, which come later in the Bill.

Miss Harney: In so far as I am in a position to give that assurance I can. I am not going to be around forever and I am not the Minister for Finance and I am not a member of the Cabinet. It is not intended to give the agency power to raise money through fees and charges for monitoring and allow it keep the fines for summary conviction and then to come back and say that we are going to deduct £X now because you have been able to raise £Y.

When the agency is established, and its very establishment is going to require the allocation of resources, it is envisaged that the director general and the board of directors will discuss with the Minister of the Environment of the day the needs of the agency as far as resources are concerned. My officials have estimated, given the functions we are giving to the agency and the number of staff we estimate they will require and the kind of job they have to do, that we are talking about a budget in present monetary terms of about £8 million per year. It may be slightly more or slightly less but that is the broad figure. The agency has a wide range of functions and if it has to carry out additional monitoring it will need more resources and will have to charge the person or company being monitored the appropriate charge. But that would be an additional factor rather than the usual situation, I would envisage.

Question put and agreed to.

SECTION 11.

An Cathaoirleach: Amendment No. 52 is a Government amendment and amendments Nos. 52 and 54 are related and [972] may be discussed together. Before the Minister commences, I want, for the information of the House, to let it be known that the Minister for Labour has indicated that he will come to the House at 7.15 p.m. this evening to make a statement concerning the ESB dispute.

Mr. Norris: Does the Minister regard the matter as urgent?

An Cathaoirleach: The Minister does not have to regard it as anything other than his function and he has indicated that he feels he should do that.

Mr. Norris: I am very glad. It is most welcome.

Mr. O'Toole: It is intended that there will be some response to the Minister?

An Cathaoirleach: No.

Mrs. Honan: Seeing that it is questioned, I welcome the fact that Minister Ahern is coming to the House at 7.15 p.m.

Mr. Norris: He will be very relieved that we are regarding it as a matter of urgency.

Mrs. Honan: After all the anxiety on the Order of Business today, I am amazed at the attitude adopted to the announcement of Minister Ahern coming into the House.

Government Amendment No. 52:

In page 13, subsection (1), line 34, to delete “other than section 103 or 105,” and substitute “other than section 103, 105, 107 or 108 or any regulations made thereunder,”.

Miss Harney: The purpose of amendment Nos. 52 and 54 is to provide that the agency will not have an automatic power to carry out a prosecution in these cases as it may not be the responsible authority. Under subsection (2) the Minister may give prosecution powers to [973] whatever body is given responsibility for these functions. Section 103 and 105 of the Bill do not contain any specific provision in relation to prosecution by the agency of offences under these sections or regulations made thereunder. It is considered that any regulations for the control of noise under section 103 would in general be enforceable by local authorities. The enforcement of the nuisance provisions of section 105 are specifically assigned to local authorities or to any other person affected by such noise. The provisions of section 107 in relation to access to information on the environment have much wider application than to the agency alone and in any event it is not certain that offences will arise under the regulations to be made.

No decisions have been made as to which organisations would be responsible for the enforcement of any controls to be introduced under section 108 in relation to genetically modified organisims. This would be a matter for consideration at the time and regulations are being drafted.

Amendment agreed to.

Dr. Upton: I move amendment No. 53:

In page 13, subsection (1), line 35, after “summarily” to insert “or on indictment”.

This amendment would allow the agency to prosecute offences in the Circuit Court where the £1 million fine would apply rather than in the District Court as the Bill now stands. That would solve a lot of people's concern about guarantees that large fines which can arise under this Bill will get back to the agency directly rather than making their way into central funds. I expect the Minister will be reluctant to agree to this amendment for reasons which relate to the functions of the Director of Public Prosecutions and so on and because of the knock-on effects arising from acceptance of the amendment. We have tabled it in part to draw attention to some aspects of the role of the Director of Public Prosecutions in this area, particularly in relation to difficulties the [974] Director of Public Prosecutions may have in obtaining expert advice which would allow him to act rapidly in relation to some pollution cases. We are also concerned that the powers of injunction have been removed from the Bill which marks a contrast between this Bill and a similar Bill produced by Deputy Shatter last year. Those are the main reasons for proposing this amendment.

Miss Harney: I cannot accept this amendment. As the Senator knows, all prosecutions on indictment in this country are taken by the Director of Public Prosecutions. The only other body with the power to do so are the Revenue Commissioners. Taking a prosecution on indictment is a very serious matter because of the consequences for the person accused. That is why the procedure has to go to a preliminary examination by the District Court and it would not be desirable to pass that on to the agency.

In addition to that, the agency would require a plethora of legal resources which quite honestly I do not think they require, given that those resources are already available in the Director of Public Prosecutions office. It is not necessary for the agency to have this power. The important thing is to have cases of prosecutions taken on indictment and to have convictions secured where serious wrongdoing has occurred. It is not significant for the implementation of this legislation or in the interest of environment protection which body takes it. Since we have to fulfil basic rules and ensure that the administration of justice is streamlined and that these prosecutions are only taken after the basic preliminary examination has occurred, it is appropriate that that function should still remain with the Director of Public Prosecutions as far as environmental matters are concerned.

An Cathaoirleach: Is amendment No. 53 being pressed?

Mr. B. Ryan: I do not want to make a big thing out of this, a Chathaoirligh, but the prosecution of an offence under [975] environmental legislation is an extremely technical area of prosecution which has a lot more to do with science, technology and litigal methods and other matters than it has to do with law. There is, of course, a considerable element of law in it. Can the Minister give us the reasons she believes that the legal expertise which undoubtedly exists in the Director of Public Prosecution's Office can understand the complex technical, scientific, technological and other questions necessary to adjudicate on the evidence? The first thing the Director of Public Prosecution's Office has to do is to adjudicate on a file of evidence presented to it to decide whether there is a case to be pursued. The adjudication of evidence in an area like environmental protection is different from the routine adjudication on areas in which there is a long legal tradition. For instance, forensic evidence to deal with crime is a well established area where legal precedence has been established, where the terminology is familiar and where developments take place slowly. We are now talking about an entirely new area with a mass of quite complex legislation. Some areas of this Bill are extremely complicated such as integrated pollution licences. I am not being critical. I would not be happy that the Office of the Director of Public Prosecutions — this is not a reflection on the Director of Public Prosecutions, I think he is one of the fine public servants this State has——

Mr. O'Toole: One of many.

Mr. B. Ryan: ——Senator O'Toole's sensitivity to the feelings of the public service is one of his many finer qualities. I hope Senator Ross' affection for Senator O'Toole will be carried over the great divide next week.

Mrs. Honan: All the compliments——

Mr. B. Ryan: The only difference between ourselves and Fianna Fáil is that we carry out our debates in public; we do not carry them out behind closed doors.

[976] Mrs. Honan: I never conducted an argument behind closed doors.

An Cathaoirleach: I must remind the Senator that we are on amendment 53 and it has little to do with other matters.

Mr. B. Ryan: There is still a case to be proven on a major area. I am talking about the objective the Minister has identified which is that this agency must be seen to be technically and politically credible, and credible in every other way. I am not sure that if you accept that the Revenue Commissioners can be given the right to carry out their own prosecutions in one very important area that the environmental protection agency, given its unique nature and the unique importance of the environment should not have similar powers. In terms of this country's future development if we are going to be different and preserve what is good about this country, the protection of our environment is not just a peripheral issue on the side; it is fundamental to our industrial, agricultural and tourism development and to our future as a centre for internationally traded services. This agency is a major plank of future economic development. It is not an inhibition but an asset to development and because of that it must be seen to work. I would worry about the expertise available in the DPP's Office to assess the quality of the evidence because that quality is going to be a matter of considerable controversy.

Mr. O'Toole: I am not quite clear on the Minister's response. Before the Minister responded I was under the mistaken impression that it was only the DPP who could initiate criminal proceedings in the Circuit Court; I had forgotten about the Revenue Commissioners. I had some idea that the Revenue Commissioners did it through the DPP. This is going to require very specialised legal support. It will have to be put together at some stage and the question here is where should that legal support be based? Should it be in the DPP's Office or should it be part of the work of the agency?

Senator Upton has raised a point of [977] extreme significance here. I want to know whether the acceptance of Senator Upton's amendment would require consequental changes in other legislation or if there is other legislation in place which would not allow this to take place. I am trying to establish if this is possible. From the earlier part of the Minister's response I got the impression that it was not possible because of existing regulations or laws; now I am not so sure. First we need to know whether the specialised legal support is already in place in the DPP's Office. I do not think any of us would expect that it is. Secondly, would the acceptance of Senator Upton's amendment require consequential changes in other pieces of legislation? Is there legislation there which states that only the DPP and the Revenue Commissioners may initiate criminal proceeding? This is the critical point. If we are going to have to set up a section of the DPP's Office it is as easy to place it in one place as the other and it might be better to have it in the agency where environmental support and information would be available.

Dr. Upton: I agree with the final point made by Senator O'Toole. If legal expertise is going to have to be provided, it does not matter where it is provided because the money will be coming from the State. The other aspect of the Minister's reply I would like to respond to is if legal expertise has to be provided does it make all that much difference whether it is in the DPP's Office or in the Environmental Protection Agency's offices? It would be more effective from an environmental point of view if it was located in the Environmental Protection Agency offices.

Mr. Norris: I support the amendment because it can only strengthen the agency to have this additional power. It is not required to use it. There is provision for conviction on indictment already in the Bill and I do not see why there should not be some provision of this kind which would strengthen the agency.

Miss Harney: In relation to whether [978] we could give this power to the agency, I am advised we probably could, subject to the provisions of the Act establishing the Director of Public Prosecutions' Office because he was given the powers the Attorney General has under Article 30 of the Constitution in relation to the taking of prosecutions on indictment. There is some misunderstanding. All the technical expertise necessary and the decision to take a case on indictment would be the responsibility of the agency. They would decide that something was a serious pollution matter to be pursued through the courts or that a prosecution indictment was appropriate and they would provide all of the environmental expertise and so on.

Because of the basic rules we apply to serious matters of that kind through our judicial system, those cases have to go through a preliminary examination at District Court level and we have to be sure that all of the matters that pertain to justice and the rights of citizens and so on are followed and lawyers are, therefore, required. It is neither necessary nor desirable for the legal expertise required to handle these matters to be necessarily located in the agency. I think it is much more in keeping with the way we run our national affairs that all legal expertise be located in one place because one day the legal expertise would be applied to murder or rape cases or whatever and it is the same legal expertise that one would be using on environmental matters. Granted, they will all have different technical and other expertise at their disposal. It is not desirable that the agency be given a whole host of legal staff because it would add unnecessary additional cost to the operation of the agency and the DPP's Office, in conjunction with the agency, can do this job.

With the exception of the powers given to the Revenue Commissioners which have been given for good political reasons — many will say they already have quite extraordinary powers but I support those powers and perhaps even more might be necessary — it is Government policy that all other prosecutions on indictment should be taken through the DPP. I am [979] not in a position to turn Government policy on its head as far as that matter is concerned.

Progress reported; Committee to sit again.

Sitting suspended at 6 p.m. and resumed at 6.30 p.m.