Thursday, 4 July 1996
Seanad Éireann Debate
An Cathaoirleach: I cannot let the Senator discuss it. I have made a ruling on it. I will be delighted to discuss the matter with him together with my officials. I understand that the Senator can resubmit it on Report Stage.
Mr. O'Toole: On a point of order, he may not resubmit it unless he makes a comment on it now. In terms of Report Stage, the issue is being dealt with, but I think it is important that he make a comment on Committee Stage so as to be able to resubmit it on Report Stage.
Mr. Norris: That is what I propose to do, but there is a point of order as well. I am not challenging your ruling  directly, Sir, but it seems to me that this notion that the Bill derives from the Title is a misplaced one. The contents of the Bill are more important than the Title.
Minister of State at the Department of Transport, Energy and Communications (Mrs. A. Doyle): A central concern expressed in the Seanad debate on Second Stage was that the Bill did not make explicit issues which are in fact contemplated in the legislation. This related in particular to the concern that an underground option could be excluded by the legislation as drafted.
During the debate I promised Senators that I would look at the Bill with a view to introducing an amendment which would make it absolutely explicit that the underground option was possible under the Bill. I therefore propose to make an amendment to section 1 (1) to define a light railway as a railway whether above, on or under the ground. In addition I propose to accept Senator Quinn's amendment to insert the word “tunnelling” after the word “excavation” on page 4, subsection (1), line 7. I trust that Senators will be assured by my amendment that this is enabling legislation and it does not seek to dictate the detail of how light rail is to be implemented and in no way excludes the possibility of any section of light rail going underground.
Mr. O'Toole: On a point of order, I wish to be sure of the procedure here. Normally when a group of amendments is taken together we discuss the group and you, Sir, then ask whether each amendment is agreed in turn. Are you changing from that approach this morning?
Mr. Norris: I welcome the Minister's amendment. It is very important and it copperfastens what she said to this House, that this was simply an enabling Bill and that it did not rule out an underground option, although the underground option was nowhere specified. Her advisers had said to me that the Bill was agnostic, which was a precise and delicate phrase to use. I wish to make a general point in principle in regard to the discussion on the Order of Business today about the significance of the Seanad as perceived in the constitutional review. We are told that it does not earn its keep. These were amendments which Dáil Éireann attempted and failed to pass. Seanad Éireann has done what Dáil Éireann could not do.
I am not stating that there was anything malign in the Minister of State's attitude. I am merely signalling that Seanad Éireann has produced the goods on this Bill, if no other. I could produce a list as long as my arm of legislation passed by this House which was  ignored by the media because of its technical nature. Such legislation was not considered sexy by the media. Members of Seanad Éireann co-operated with the Minister of State and her officials during a fruitful and detailed meeting yesterday. This led to a series of late night meetings, which ended at 2 a.m., between Members, civil servants and the staff of this House in connection with the amendments under discussion. We did so because Seanad Éireann is relevant to the legislative process.
Mr. Norris: It is very important. It indicates an openness on the part of the Government that we will now be able to examine the question of an underground rail system. The Government's amendment is particularly acceptable because it is better than mine. The wording is exactly what is required. I limited the amendment I tabled by including the wording “between the two canals”. This is an easy Dublin phrase which we have become used to utilising, but it is somewhat lazy. I welcome the Minister of State's amendment because it is significantly better. I do not wish to gloat, but this amendment was extracted following a long, detailed and positive discussion between us. It demonstrates the mature relationship between the Minister of State, civil servants and Members of this House.
Mr. O'Toole: I compliment the Minister of State and her advisers for taking this matter on board. While the Bill as drafted might have been agnostic, it is now explicit that LUAS may run undergound if the need arises. There are many citizens of Dublin who will be pleased that that option is now open to consideration. Everyone who expressed concerns about this issue must accept the outcome if, having been taken into consideration, the underground option proves unfeasible. However, it is useful that the Seanad has dropped the sights of those promoting LUAS to consider  the option of an undergound rail system. We now believe that all options will be considered. I thank the Minister of State and her officials for their work in this area. It is significant that Members of this House managed to put forward a more convincing argument on this issue than the less articulate Members of the Lower House who are still involved in a learning process.
Mr. Cassidy: I concur with the comments made by the two Independent Members. I am glad our concerns relating to the Bill have been taken into account and that the Minister of State has accepted many of the views expressed by Independent Members, Fianna Fáil and the Progressive Democrats on Second Stage.
Mr. Dardis: I welcome the Minister of State's proposal. I must inform Senator O'Toole that this outcome has less to do with Members articulateness than it does with the mathematics of the situation. That is political reality and it is good that the mathematics count.
With regard to the amendments grouped with amendment No. 2, I note that the Minister of State has accepted Senator Quinn's amendment. I am always impressed by Senator Quinn's capacity to have his amendments accepted. He has a very spectacular rate of success compared to my own in this regard. He has now reached the point where he can be successful even when he is absent from the House. That is a marvellous achievement on his part.
To return to my point, the Minister of State proposes to accept amendment No. 4, which was tabled by Senator Quinn. It seems logical to accept the other amendments tabled in his name. Perhaps the Minister of State might comment on why this is not the case. The amendments in question involve inserting “or the ground underneath the land” after “the land”. If one considers the section, further ambiguity exists in this regard. Senator Quinn's amendments would make the matter more explicit.
I do not wish to prejudge whether the underground option might not be utilised. However, certain figures have been put forward regarding the economics of that option. It has been represented that the economics of the tunnelling option are sound and it would not be much more expensive than going overground. In fact, it might not be more expensive to do so. Martin Lynch's article in the Irish Independent supplement “Dubliners” on Tuesday, 2 July 1996 states that Deputy Molloy gave a figure of £12.5 million per kilometre to run trams on the street and £11.5 million per kilometre to tunnel underground. Mr. Lynch goes on to refer to the costs relating to the Dublin port access tunnel and states that:
Mr. Magner: I believe it is in order to refer to Members present in the House. Senator Norris likened the Minister of State's amendment to “pulling teeth”, when the opposite was the case. The Minister of State made it clear on Second Stage that this is enabling legislation and nothing is written in stone. She stated that she was open to consider all possibilities, depending on the debate and the points put forward. Therefore, it is wrong for the Senator to give that impression. It is not helpful and does not enhance the reputation of the House to poke the bear in the other place. The Members of the Lower House have a job to do and whether they do it well or badly is a matter for them. We have our own job to do. The sort of triumphalism displayed by Senators Norris and O'Toole is childish in the extreme.
Mr. Reynolds: I thank the Minister of State for accepting this amendment. However, Members should be aware that the underground option was never precluded under sections 10 and 13 of the Bill. This amendment makes the position more specific. As Senator Norris stated, it shows what can be achieved when the Government, the Minister of State and civil servants work together.
Mr. Mooney: Prior to this amendment, did the proposals relating to the LUAS project not include that portions of the rail system should run underground? In other words, was it not indicated that the parts of the line would run under the ground as distinct from the concept of putting in place an underground rail system? Was it not stated in the original proposals that portions of the rail line would run “under the ground”?
Mr. Dardis: I wish to make a minor correction to my earlier statement. I believe I asked the Minister of State  why she would not accept amendments Nos. 4, 5, 6 and 7. I should have referred to Nos. 4, 5 and 6, because amendment No. 7 is unrelated.
Mrs. A. Doyle: I am accepting amendment No. 4 of the list of grouped amendments. I am not accepting amendments Nos. 5 and 6. The original proposal relating to the light rail system is not relevant to this section because the Bill is enabling legislation. I can provide a specific reply, but I am happy to be ruled out of order by the Chair with regard to the matters we should cover. As the Cathaoirleach allowed the question, I believe I should answer it. However, with respect, I do not think it is in order at this stage.
There was no original proposal to place any section of the light rail system underground. The original proposal was based on the DTI proposal which advocated an entirely on-street system. This is enabling legislation. If the consultants are considering the possibility of underground sections, they will recommend this when they publish their report in July. The Bill will then allow that to be done and will not preclude any underground sections, even though the proposal that came to Government, via the DTI, advocates an on-street system. We must await the Semaly report to see if any sections will run underground. I do not know the position at present.
Mrs. A. Doyle: No, it is not. That is the reasoning behind this group of amendments. I thank Senators for their interest in this. It does not do justice to this House to assume that the effort put into these amendments was based on the mathematics of voting. I would not accept that and, as a former Member, I believe I am qualified to comment, otherwise I would not be as assured. If it was only a question of mathematics, I would have had to accept all the amendments tabled, which I cannot do for reasons I will outline as we reach them.  I will have to accept the consequences if I do not explain sufficiently rationally to Senators why I cannot accept them. If Senators do not accept my reasoning, we will have to accept the consequences. I have been able to accept amendments which augment the Bill.
As regards making explicit the points contained in this group of amendments, the definition of “railway” or “land” does not exclude underground or under the land, which I am happy to concede. As Senator Magner said, I conceded this on Second Stage. I, my officials or the Attorney General had no difficulty conceding to the explicit definition to ensure underground was not excluded from this enabling legislation. We had more protracted and difficult arguments about other amendments and we reached a compromise. However, I do not know whether these amendments will be accepted until we debate them. I never had a difficulty with this amendment and I concede to the need to explicitly include this in the Bill.
As a Member of the Lower House and a former Member of this esteemed Upper House, I have to say that this point was not picked up in the Lower House. I was never asked to accept an amendment broadening the definition of “railway” to ensure it did not exclude underground. I accept in good faith what Senator Norris said, I would not compare the abilities of both Houses to argue this point. It was never proposed in an amendment, so I never rejected it. It is a worthwhile amendment which augments the Bill. I thank Senators for their interest in this point.
I cannot accept amendments Nos. 5 and 6 because the Attorney General has advised us that the definition of “land” includes the subsoil and the substrata. Land is not only the surface, it includes everything below it. This is superfluous and would add nothing to the Bill. On that basis and given that sections 10 and 13 refer to land in, under or over, there is no need to accept these amendments.
Mr. Daly: I refer to the definition of an environmental impact statement in this section, although section 5 deals specifically with the details. Although there has been much discussion in relation to this issue, the Minister will be aware of areas along the proposed or the alternative line where there has been widespread dismay at the likely impact of this development in terms of interference with business, disruption to families and the closing down of industries which provide many lucrative jobs. While she has probably dealt with this already, it is not clear in the definition section whether the likely impact on people, employment, business and private homes in areas like Kilmainham will be fully considered. How will this be taken into account in the environmental impact assessment?
Mr. Norris: Following on from what Senator Daly said, I would also like  clarification. It is important that some type of quantification be made of the disruption to businesses and so on, so that it can be added to the costings. Does the environmental impact statement, as envisaged under this section, include the costings of an underground alternative and not only costings of the preferred technical route?
Mrs. A. Doyle: The environmental impact statement does not involve itself with costings. That will be done when a light rail order has been proposed to the Minister; it will be on the basis of an order for specific routes after consultation and the recommendation of the consultants and project team has been put to the Minister. At that stage, we will know whether it will be on-street or underground and whether there will be alternative routes. The environmental impact assessment will only deal with the environmental impact, not the economic impact.
The compensation procedure for disruption and the placing of compulsory purchase orders on land or buildings will not be dealt with by the environmental impact statement. We will discuss the environmental impact statement in detail when we come to section 5. We are dealing with the definition section in which the definition of an environmental impact statement is construed in accordance with section 3(2)(d) which states that we are effectively operating in accordance with the EU regulations. Section 5(1)(2) and (3) refers to the specific applications to light rail of the EU regulations and the environmental impact.
Mr. Daly: The reason it is important to get clarification at this stage is that we may wish to amend section 3. I am not clear about the economic impact, which the Minister said will not be taken into account in the environmental impact assessment. Perhaps we can discuss this in more detail when we come to section 3. We may need to table amendments to that section if we do not get clarification on issues like the disruption  of family life and of businesses and the impact on jobs and on further developments in these areas. We must ensure that these issues will be taken into account in the impact study.
Mr. Norris: The Minister has clarified matters by saying this must be discussed when we come to section 3(2)(d) and section 5. However, the reason I asked about costings and so on was that section 5 (1)(c)(iv) refers to material assets, while paragraph (e) refers to an outline of the main alternatives. The question I asked had a certain rationale behind it, although the Minister may feel we should discuss this when we come to section 5.
Mr. Dardis: Is it not the case that the public inquiry will deal with the economic aspects of the disruption? That is where that matter properly lies rather than with the environmental impact statement. The economic disruption it will cause to individuals and communities would be a matter for the public inquiry.
Mrs. A. Doyle: When we reach the public inquiry stage, the EIS will have been carried out on the route that is the subject of the light rail order. While the environmental impact assessment is being made, the general impact and disruption on families will be taken into account but there will be no detailed costings of disruption vis-a-vis compensation and so forth. That is not the role of the EIS. In other words, if the consultants carrying out the environmental impact statement decide that the impact of a particular route on a string of houses or on a business area was such that it was unacceptable and did not justify proceeding with the route, it can state as much, particularly if there was an alternative route that was as acceptable  for the line in question and which reduced the degree of disruption.
The consultants will be asked to do an EIS on the order. It will not be up to them to say that they do not like the line going a certain way and would prefer it to go another way. Those discussions will have taken place beforehand when the order is made. The EIS is then done on the order. The process of order, draft plan and EIS then proceeds to the public inquiry stage. At the public inquiry it may transpire, from the reports and EIS submitted to it, that the light rail order will not be recommended because of the disruptive impact on residences or businesses or on the environment.
The Minister, following the outcome of the public inquiry, will determine whether he will grant the order. He can make minimal changes to the order but he cannot decide on, for example, option B when the order has been requested for option A if they are totally different routes. If there are major material changes the process must start again because the landowners on the new route would have to have their input, there would have to be full consultation and there would have to be new CPOs.
There are restrictions in that the areas on which the consultants can comment are specific. The EIS will deal with the proposed light rail order. It can comment generally if the disruption will be such that they do not think it is acceptable but they will not go into detailed costings and compensation. That is not their role.
“(5) An authorised officer may not enter the dwelling house of any person under this section, without the consent of a person who normally resides in that dwelling. An authorised officer may enter the curtilage of such dwelling house without such consent for the purposes specified in subsection (1) and subject to the conditions set out in subsections (2) and (3).”.
Mrs. A. Doyle: The Senator will be aware that on Committee Stage in the Dáil I acknowledged the underlying principle of consent regarding a similar amendment tabled by his colleague, Deputy Séamus Brennan. Consequently I undertook to examine the possibility of drafting an amendment that would take account of the principle of consent. It should be noted that the right to refuse consent was always implicit in this section in its original form. It provided that where an authorised officer was  refused entry to any land the Minister or board would have to apply to a judge of the District Court for a warrant to authorise such entry, having satisfied the judge that the entry was necessary. These protections remain in the Bill.
The amendment I introduced on Report Stage in the Dáil made explicit the principle of consent in response to points made by Deputies on Committee Stage about the special position of a person's dwelling. I could not go as far as providing an absolute restriction on the power to enter a dwelling if the person who normally resided at that dwelling refused permission for such entry. An individual who need not be the owner of the property could simply refuse entry and the development would be unable to proceed. To allow such a situation to develop would create the potential to permanently frustrate the project as there would be no remedy for the board in such an instance. Clearly provision must be made for those rare occasions which may arise when entry into a house or houses will be necessary if the project is to make progress. It may be necessary to survey a house prior to selecting a route which runs close to that house.
I cannot accept an amendment which forbids entry to any house under any circumstances, as is provided in this amendment. It would be critical to the progress of the project. While the proposed amendment is unsuitable for the reasons I have outlined, I am satisfied that the amendment which was accepted in the Dáil achieves the objective of making explicit the need for consent in support of the rights of owner occupiers while ensuring adequate rights of entry for authorised officers for the purposes of the Bill. I believe we achieved the right balance with the amendment made in the Dáil. I regret I cannot accept the Senator's amendment.
Mr. Mooney: I wish to clarify the Minister of State's objection. It seems to centre on the question of residence as distinct from ownership. The Minister of State can correct me if I am wrong,  but it appears that she is of the opinion that this amendment could prevent the orderly progress of the order. Can she clarify what she means?
Mr. Dardis: The provisions in this Bill are similar to those in the motorways legislation. I have experience of the operation of those provisions having had a motorway built through my property. It is entirely reasonable that it should not be open to an individual to block a development for years. That happened in the case of the Walkinstown roundabout, a notable example of where an individual blocked a development for a considerable number of years. As a result, section 2 (2) provides: “Before an authorised officer enters any dwelling house under subsection (1), he or she shall obtain the consent (which shall not be unreasonably withheld) of any owner or occupier of the dwelling house.”. Section 2 (4) goes on to discuss compensation.
In the case of the motorway, test holes were dug in my property. The people responsible sought and received my consent beforehand and compensated me for digging the holes. Everything was satisfactory from my point of view. The Bill, as drafted, covers most if not all the reservations we might have about entry onto property. The officers cannot enter property without first notifying the occupier.
Mr. Magner: I agree with Senator Dardis' interpretation. A Chathaoirligh, I indicated during the discussion of section 1 that I wished to contribute to the debate initiated by Senator Daly on the economic impact of the proposals. Perhaps you forgot to call me.
With regard to this section, it is not possible that any development undertaken years ago, such as rural electrification, could have been undertaken without reasonable access to private property. Most people accept that fact.
Mr. Reynolds: Senator Mooney would be aware of the construction of the Shannon-Erne water link in County  Leitrim. If this amendment was accepted it would preclude progress on projects like that because it would give an individual the power to stop any work by the authorities, as Senator Magner said. What was accepted by the Minister in the Dáil and inserted in the Bill is fair and reasonable. This amendment seems to go further by giving the individual the power to stop the whole project. Any one individual should not be given that sort of power.
Mrs. A. Doyle: I thank Senators for their contributions. We are not too far apart on this issue. I understand the concerns of the Fianna Fáil Senators and I empathise with the point in their amendment, although I cannot accept it. If they looked at the Bill before Report Stage in the Dáil and saw how I strengthened the area of consent to make it explicit, they may agree that I have gone as far as I reasonably can. I cannot let an owner or an occupier refuse access to their houses for completely unreasonable reasons. It can go before a judge of the District Court and if he thinks an owner or occupier has a valid reason in the context of the project, he can rule against the board, although it is unlikely.
I have strengthened the rights of owners and occupiers as far as I can without providing for the odd totally unreasonable person, given the project is in the interest of the common good. It is hard to get the balance right, but we have gone as far as we can on this matter.
Mr. Cassidy: I accept the main thrust of the Minster's reply. If this goes to court, are both sides' costs covered under this provision? This involves an entrance into a dwelling, not around it. Therefore, the need for consent is paramount.
Mr. Cassidy: That is not fair in this regard. A person might be in receipt of social welfare and could have been born in this area and living in this house for generations. It would not be practical for them to take a case to court. We should be practical and even handed on this matter. While I accept Senator Dardis' point that no one individual should be allowed to stop a major project, the means and constitutional rights of that person must also be taken into account.
Mr. Mooney: Senator Dardis, when citing his example, talked about holes being dug on his land. Section 2 (3), in applying to a judge of the District Court, is sound logic. However, this amendment refers to the entering of a dwelling house. It is specific in that “An authorised officer may enter the curtilage of such dwelling house without such consent for the purposes specified. ...”. We are taking about the entry into a house.
On Second Stage, I cited an example in the inner city; unfortunately it cannot be proven because only two people were involved. One was an elderly lady living alone in an inner city house. She was approached by someone who described himself as a representative of the LUAS project and he went into her house. When somebody knocks on a door of an elderly lady's home and flashes a card or some sort of authorisation to her, she may have felt more comfortable in allowing him into her house. The conversation that then transpired was most definitely intimidating, if the alleged facts were as outlined. Sums of money were suggested to get her to sell off or get out of her property. This again relates to the question of public consultation, with which we will be dealing later. This was a frightening experience for that individual.
Somebody who is vulnerable and alone and who would not necessarily be obstructing progress, or be mischievous or in the category as outlined by the Minister would believe they have, as Senator Cassidy said, a constitutional  right in their own home. I do not want to create difficulties on this section, but this amendment was put down with noble motives. It does not prevent work being carried out in or around the property. It is specific in that an authorised officer many not enter the dwelling house of any person under this section.
My interpretation of an authorised officer is anybody who is given a piece of paper by somebody associated with the LUAS project. It does not state exactly who or what is an authorised officer. That is the reason this amendment was put down and I would be grateful if the Minister could comment on those specific areas.
Mr. Norris: It seems to me the Minister has gone quite a long way in meeting the concerns expressed. There is something very personal about one's one home and dwelling house. The phrasing of section 2 (2), that “Before an authorised officer enters any dwelling house under subsection (1), he or she shall obtain the consent (which shall not be unreasonably withheld) of any owner or occupier of the dwelling house.” does seem to me to be reasonably phrased. There are people who will unreasonably withhold access.
Senator Cassidy gave the example of an old age pensioner or somebody on social welfare benefit, etc. and the problem of access to the courts. I assume, perhaps inaccurately — the Minister might be able to inform me on this — that some form of legal aid would be available for people in that situation if they are unable to afford access to the courts. Perhaps this would reassure Senator Cassidy if it was made clear that in a situation where somebody had a reasonable ground to withhold entry, the matter went to court and they were unable to afford private legal representation, the legal aid system would swing into action at that point. Perhaps if the Minister could reassure us on that, it would meet Senator Cassidy's problem.
Mr. Magner: I accept Senator Cassidy's point. However, it is important that  one does not, by including amendments like this, make the whole business unworkable. If the Minister accepts the principle that tunnelling or going underground will be part and parcel of this inquiry, that must be made a real live prospect. It is all very well to say that one can enter the curtilage of the premises, but any decent engineer would like to know how the house had been built before he or she starts tunnelling underneath it because otherwise they will never ask that question again. Therefore, let us not make this impossible by inserting amendments that will painfully prolong this process. If sensitivity and the rights of people are to be the main emphasis in dealing with this project, a provision for this must be included. If people cannot afford representation, then a solution will be found.
Mr. Dardis: It is not the householder or the person who owns the dwelling but the Minister or the board who makes the application to the court. I accept what Senator Norris said, that if they did not have a means of paying their legal fees they could still carry on. Where they did pay their fees, the court would take a sympathetic view and probably award them costs. That is not to say it would happen, but it would be the tendency on the part of the court.
The amendment gives an absolute right to the person who owns the dwelling house to deny access. I am sympathetic to the position of elderly people living alone who in normal circumstances might refuse entry to anybody. But a particular individual cannot hold up a project of this size and magnitude and the matter of the needs and good of society arises. It would be my fervent desire that a motorway never came through my property. However, a point may be reached where it has to be conceded that society has decreed otherwise and that despite your wishes you have to go along with the needs of society. That is why what is proposed in the Bill is reasonable.
Mrs. A. Doyle: I have answered most of the points and I am not sure I can add much more. This section tries to get the balance right between the common good and the rights of the individual. As many Senators have pointed out, it is a delicate area. Our amendment on Committee Stage in the Dáil substantially reinforced the rights of the owner-occupier. We have tilted the balance. The owner-occupier does not have to go to court to prevent the board or the project team coming in to survey. The inspector, on behalf of the project team in CIE, must go to the court. I have no fear that any right minded judge would be in favour of the individual against a State body in the matter of costs. The other legislation required the owner-occupier to go to court to take a case which put a greater financial onus, in terms of legal back-up, on them. We have tilted the balance so the CIE Board will have to go to court and get consent. Most people will not go to court if they are just being contrary. If they have a genuine reason for denying access they will proceed to court. Any right thinking judge would look after the individual, whether it is a pensioner or a social welfare recipient, against a State body or a project team working on their behalf. I am not in a position to categorically state they would qualify for free legal aid without consulting the terms of reference for free legal aid. The issue of property in free legal aid is a grey area. This case is not the same, as it is the State requiring the individual to do something. It may qualify. I do not want to be disingenuous and give the impression that I know. We can check that and I will let the Senator know on Report Stage. For the reasons stated and given the balance needed and the strengthening of the position of the owner-occupier already done on Committee Stage in the Dáil, I cannot accept the amendment. NEW SECTION.
Mr. Mooney: This section has been included in order to specify the routes under this new light rail system. There is a specific reference to the provision of a route to Dublin Airport. This has been a matter of public controversy. I am also aware the Government has come down in favour of two out of three routes and that there is also discussion  between the Government and the European Commission on the provision of a light rail system for Dublin. We believe that the way forward is the provision of these lines as outlined in the amendment and especially the provision of an extension to Dublin Airport. We are the only city in Europe which does not have an airport link. Could the Minister give her observations in this area?
Mr. Norris: Although my name is not on this amendment, I want to make a brief comment on it. The Minister may find it useful in her reply to look at the question of specifying the routes. Under the unified proposal a large number of these routes and considerations are planned and programmed for at a competitive cost. As the first person who drew attention to the exclusion of the airport, I support Senator Mooney. It does seem extraordinary that the airport spur should be left out, presumably for an economic reason. I have no idea whether the Minister will feel able to accept this amendment, but I have a suggestion on it. Subsection (1) of the amendment states:
That is precisely what the Bill is doing and there is no argument about that. The word “shall” is perfectly appropriate there. If, in subsection (2), “shall” was altered to “may” it would read “The Minister “may” include in the programme under subsection (1)” .... . and the routes could then be specified. That would be less threatening for the Minister and she might accept the amendment.
Mrs. A. Doyle: I am not in a position to accept this amendment for the reasons I outlined in the Dáil. This is enabling legislation. It does not preclude or include any of the lines mentioned in the amendment. It does not preclude or include a spur to the airport.  The legislation does not mention any particular line, route or terminal. I do want to put these routes in and leave others out as that would restrict rather than enhance the legislation. I have my shopping list of preferred terminals and routes. Senators, the Minister and the consultants and light rail project team would all have their views. Money will dictate how much, if any, of our shopping list, in terms of the extensions, we can actually accommodate. There are sound reasons for a light or regular rail link to Dublin Airport and I support the economic rationale behind the debate. It has not been decided whether it should be conventional or light rail. If it is conventional rail, it has no part in this Bill. By mentioning Dublin Airport we preclude other options which may turn out to be better when we have listened to transport consultants. I am not against any of the particular routes here. But the amendment would handicap the Bill, which would be more extensive if it was not confined to the point made here. For those reasons, and because of the extensive debate we had on this particular point in the Dáil, I am not in a position to accept the amendment.
Mr. Wright: I am glad the Minister is in favour of the airport proposal. The Government has dealt with the proposal for a second airport at Collinstown and decided that Aer Rianta should be allowed develop the airport to its full potential. Everybody is aware of the numbers coming through the airport and the area surrounding it.
Fingal County Council has decided its capital will be Swords, the fastest growing area in Dublin. On the Order of Business yesterday, Senator O'Toole asked the Leader what criteria the Garda would use to manage traffic during the EU Presidency when Ministers and officials arrive at the airport and travel into Dublin. It is almost impossible to get into the city from the north side every morning. We await a decision by the Minister for the Environment on the motorway from the airport to the  Balbriggan by-pass but unfortunately it has not been made.
It is fine for the Minister to say that in principle she is in favour of a link to the airport. The amendment calls for this link and one would have thought, given expenditure of over £200 million, that the Government would have made a decision about the airport. During the Aer Lingus crisis the then Minister for Enterprise and Employment, Deputy Quinn, initiated a task force of various agencies on developing the airport and its environs. It was significant that when the current Minister, Deputy Richard Bruton, announced the task force recommendations he left out its call to make the railway link a top priority and the suggestion of a national conference centre. What comes across to those interested in the matter is that the decision made on the phases of the light rail scheme omitted the airport and, while today's decision neither includes nor excludes it, no commitment has been made about transport to the airport. The EU Commission and many other bodies indicated that they cannot understand why this decision was made.
The Government has decided to spend over £200 million on the airport, given that 10 million to 14 million people will use it every year. Even if the Minister did not accept the amendment, I thought she would at least give a commitment to provide public transport to the airport.
Mr. Norris: To return to the point I made earlier, I understood the Minister to say that, just as the Bill before being amended was agnostic as between light rail and an underground, it is agnostic with regard to these lines. She accepted the theoretical position that, being agnostic, it would not materially affect the Bill if this were specified in such a way that did not tie the Government automatically to accept an underground railway, so long as it remained agnostic.
Similarly, it is possible to include the substance of this amendment while retaining the agnostic position by changing  one word. The proposed new section 3 (1) provides that “The Minister shall devise ... a programme”. That is precisely what the Bill does and the Minister will do, so there need be no argument about that provision. However, the proposed section 3 (2) states: “The Minister shall include in the programme” certain lines. That provision directs her but if “shall” were changed to “may”, the agnostic position would be retained but there would be a benefit of perception. By naming the areas it will be easier to argue on these positions when deciding on the lines.
The link to the airport must be considered. Those who use the airport regularly know that they must allow a long time to reach it because they are in considerable danger of missing a flight due to traffic congestion on the road through the north city.
The Minister ought to reconsider and accept the amendment of the word “shall” to “may”, provided my friends in Fianna Fáil agree. It does not force her to do anything. It leaves the position much as it is but it has the benefit of including the lines, thus drawing the attention of those who subsequently consider the Bill. The Minister's hands will not be tied if that single change is made.
Mr. Cassidy: I concur with Senator Wright. As a north Dublin Senator and someone who uses this road five days a week, he has put his finger on the point. It is appalling that this is not being addressed by the Government as a priority. This road is the shop window for the country — those who arrive in Ireland must use this route to reach the city centre but they sit in a logjam for an hour or more. It is one of the busiest routes into the city and it is not being properly served by road so it must be served by rail. As far as Fianna Fáil is concerned, the airport route must be included as a priority in the Bill.
Mrs. A. Doyle: I thank Senators, particularly Senator Norris, for being helpful and trying to find a meeting  between my views and those expressed in the amendment. However, I am not in a position to accept it, even with the changes he suggested, as it would still be restrictive. This is strategic legislation and does not provide a detail plan as to where the terminals should be, where the lines should conclude, how many lines there should be or whether they should run under or over ground. The Bill does not contain detail planning, that is for another time and another forum. It is enabling legislation which will not preclude anything in this amendment, so it is superfluous.
The benefit of the amendment is that it allows debate on sound points — for example, that Senators would like extensions to Sandyford and the airport. I would like them too but I do not know if they will happen, if they will occur in phase one, two or three, or whether money will be available for them. The decision on that is for another time. In rejecting the amendment for these reasons, I do not reject the sentiments of or the case being made by Senators.
I will not accept Senator Wright's invitation to indicate the Government's total planning policy or long-term projection for Dublin Airport. The airport is in the Senator's constituency and he has a personal interest in it, as we all do. However, I will not go down that road as I would be out of order. It has nothing to do with the amendment or light rail per se. It is a bigger and an important debate but it is one for another day.
An Leas-Chathaoirleach: I ask the Senator to accept the ruling of the Chair. When we come to discuss the section, I will be flexible and allow him the opportunity to make the points he would have made if he had spoken on the amendment.
Mrs. A. Doyle: I would like the Senator to have expanded on the amendment to understand its purpose. The amendment seeks to delete a provision whereby upon the application to the Minister for a light railway order there shall be paid to the Minister by the board such fee, if any, as the Minister with the consent of the Minister for Finance may fix. I am unclear why the Senator would wish to have such provision deleted. It is reasonable to allow for a provision where a fee is charged for the making of an application for statutory powers. It happens with applications for planning permission or for loans to local authorities. It is a tried and tested procedure. Similar provisions exist for licensing fees. I do not see how this provision is considered unreasonable and I cannot accept the amendment.
Mr. Quinn: This is really only switching money from one pocket to another. CIE costs more than £100 million per  year, yet we want it to pay a fee to a Department. It is just taking money from one pocket and putting in another. It would make more sense not to have this transfer of money and thereby speed up the process.
Mrs. A. Doyle: This provision ensures that serious rather than spurious applications will be made. If there is a fee only those with serious intent will apply. This procedure exists in the form of licensing fees, planning application fees and fees for major civil engineering contracts between the private sector and the State. It is a procedure deemed to be necessary. It encourages serious applications rather than those which might not be intent on a positive outcome.
Mr. Quinn: The amendment arises from my suspicion that CIE is acting as an agent for the Government with regard to the light rail system. We cannot differentiate between them in that context. I understand the Minister of State's point and I will not press the amendment.
Mr. Norris: I wish to refer to the issues contemplated by the amendments I sought to make to allow other companies or bodies to apply to the Minister for a light railway order and to require the Minister to give due consideration to such applications and provide for their publication. Amendment No. 1 in my name, which was ruled out of order, wished to allow the involvement of public or private sector consortia. If we are to have a cost effective system, we should not preclude the possibility of private investment. I understand there are a number of bodies interested in tendering for this. Why should it be left entirely to CIE?
The Minister of State indicated on  Second Stage that CIE has the possibility of establishing subsidiaries. However, that does not meet my arguments. I am not referring to simple subsidiaries of CIE, established and provided for by it, which are puppet groups of CIE. I am talking about real competition. I thought the Government would have been interested in getting a competitive price. The only way to achieve that is to allow an open market with CIE not being the only player. This would give the citizens a fair deal.
CIE always plays on the cost factor. However, it has not been good at getting its sums right. For example, the costings for the DART tripled. Yet, it tells us that certain actions cannot be taken because of cost factors. It wishes to remain the only player in the game and is prepared to yield only slightly by allowing a subsidiary, which it will dominate and in which it will have a major interest, to be involved. That does not meet the requirements of free enterprise.
I am suspicious that these particular amendments were picked off. It is inappropriate not just because of the content but because of the principle involved. One should be able to bear upon the Title of the Bill. Any item of legislation laid before this House is unstable in its content until it has been passed. It is not possible to say that the pre-existing Title determines the content of the Bill. It simply cannot because the Bill cannot be law until it has been passed by this House. To maintain that an amendment cannot be introduced because the substance is not referred to in the Title is absolute nonsense.
With respect to the Chair, this ruling will be strongly challenged at the Committee on Procedure and Privileges. We have encountered such rulings on other Bills. It is a convenient device to pick off amendments which are not popular. The ruling out of these amendments will be challenged. We will table amendments on Report Stage and we will do all we can to have this provision included because we were given an undertaking that there was no objection  to the involvement of private enterprise and that it would be catered for.
If the Minister of State can convince me that it will be catered for, not via subsidiaries of CIE but with an open market so that Japanese, Swiss or German consortia will have a level playing field and the taxpayer will get value for money, then I will be happy. However, as it is I am not happy.
Mr. Roche: I support Senator Norris's views. It is a farce that we should try to close out any competition. Senator Norris's desire to allow bodies or companies other than CIE to be involved is eminently sensible. CIE should not be the only player because it made a mess of the DART. The DART extension to Greystones was aborted effectively because CIE got the costings wrong. It is now, years later, putting forward costings considerably lower than the original costings. It is now costing millions to correct the mess CIE made through the integrated ticketing system. Having spent millions on the DART's ticketing system, which is non-integrated, millions more will have to be spent to correct it. When the light rail system comes on stream that will also require an input.
It would be wise for the Minister of State to allow a facility for a degree of competition. Competition between CIE and one of its subsidiaries is a farce as the Minister of State knows. It is recognised under European law that a company cannot possibly compete with its subsidiaries. It would be artificial competition and would not make sense. It would be prudent for the Government to allow competition on this issue.
Mr. O'Toole: There is a fundamental issue involved which I do not understand and I would like the Minister of State to explain it. I understand the operation of legislation giving discretion to semi-State companies to set up subsidiaries. I understand that legislation also allows those subsidiaries to operate joint ventures nationally or internationally with other domestic or foreign companies. The Minister explained  that on Second Stage. However, the issue is why it is restricted to this level in this case. Our understanding is that, in terms of European legislation, it was required of the Government to ensure that any tendering or any applications for projects such as this are open to all concerns on an international basis. This is a big venture. It includes European money; but, even if it did not, there is a strict tendering procedure before issues like this can be approved. Two months ago we were seeking money from the Department of Finance for a domestic issue in this House. I had two meetings with them on the question of tendering for amounts more than £5,000, not to mind the millions we are talking about here. They were insistent that everything would be put out to tender. This gets around that. It appears to us that a proposal to take the words “by Córas Iompair Éireann” out of the Title would meet the bill. I also recall that on the Environmental Protection Agency Bill, 1993, I had an amendment down to change the Title of that Bill and it was discussed. I am sure the circumstances are different and I am not questioning the advice received by the Cathaoirleach from the staff of the Houses, who are expert and diligent in these matters, but I want to check if there is any precedent. We are not here to create a problem. If there is a rational explanation that we are missing on this, we deserve to hear it. It is not to do with the joint venture and we understand that; it is the more fundamental point.
Mr. Magner: Whatever the views are of the Independent Senators, it was not the intention of the Fianna Fáil/Labour Government to include anybody other than the poor. Second, it is a fallacy for Senator Norris to suggest that CIE and the private sector could not compete, because the evidence is there. There was an overrun on the DART and I accept that. I do not accept that CIE is at all times the best at managing its affairs; that is self-evident. In terms of the private versus the public sector, the initial proposal to build a Euro-tunnel  was to be a State venture between the British and French Governments. It was decided there would be a private venture and it has broken more banks than I have had dinners.
Mrs. A. Doyle: Like Senators, I am ruled by the Chair on amendments being in order, but I am delighted to speak on the content of the amendment in answering this section. The purpose of this Bill is to implement a light railway in Dublin in accordance with the strategy recommended by the Dublin Transportation Initiative. CIE is the only national transport company and the sole operator of scheduled public transport services in Dublin. It is best placed to ensure that the different services are properly integrated. It can ensure that suburban rail, DART and buses provide a service which is complementary to LRT and, therefore, avoids some of the difficulties which we had seen with competing systems in other cities. Senators have offered Sheffield as an example in different arguments during this debate. One of the earlier difficulties in Sheffield was the lack of integration of the transport services there because it was not the transport company that was running the LRT.
I am conscious that considerable powers are needed for the LRT project, including compulsory purchase powers to provide the railway infrastructure. I am not satisfied that these strong powers could reasonably be given to a private company. We have talked about entrance into homes and ownership and the sensitivity in that area in Ireland. If we were to give all the compulsory purchase powers to a private company, we would have a far greater outcry from homeowners and landowners than we  would dealing with the system that is there.
This particular area is the strongest argument against what is coherently argued here by Senators. I have no difficulty with the private sector. I am a free enterprise person by nature and my political philosophy is directed that way. I am not alien to talking about competition and the private sector for any machiavellian reason; but to have an integrated public transport system, the only transport company we have got are the best people to co-ordinate it, either in joint venture or in subsidiary. Perhaps we can leave that discussion until we reach section 25. We will have an opportunity to talk about it there again. More importantly, the powers the State will have to give the company constructing and operating an enormous civil engineering project such as light rail system in our capital city are such that I would be more comfortable with the State or semi-State sector operating them.
CIE is best placed to deliver the project in the time scale. The Bill does not preclude other companies becoming involved with CIE in the operation of light railway and it is expected that there will be considerable private sector involvement in the building of the system.
Mrs. A. Doyle: Let us not go down that road because I will have to defend that. In the circumstances it is both appropriate and desirable to provide that CIE should make the application to the Minister to construct the light railway and I emphasised the more important reasons for that.
Lest we do not reach detailed discussion on section 25 — and at this rate there will be few of us left — it sounds plausible that we should allow the private sector to quote and tender. In terms of construction and, even the operation of the system, it makes good economic sense. The DTI have looked  at private sector involvement in constructing the scheme and financing the project and they felt that the scope for equity investment by the private sector would be extremely limited. The light rail is expected operationally to break even and operationally to make a profit; but if you take the capital investment into account, you are looking at many decades before there is a return on any money. That would delimit severely any interest from the private sector — equity investment and the capital project as distinct from the operational end of it. The DTI estimated at the time that 5 per cent would be a good working assumption of the interest in equity from the private sector, which is nominal. It leaves the State with the greater holding. Private sector funding is only meaningful where part of the risk of the project is accepted, including the capital risk. The rate of return on a light rail project is not such as to readily attract private equity and delays while trying to secure private funding have been detrimental to projects in other cities. They have looked at other cities to see how this has gone and I am reasonably confident, as someone who would have no ideological objection to the private sector running the show, that it is not a runner in this case
Mr. Norris: With regard to compulsory purchase orders, I accept the Minister of State's point that there is something invidious about allowing a private company to have the right to compulsorily acquire other people's homes. It is a good and fair point. But is this Bill written in tablets of stone by the DTI, because it is a principal motivating factor behind it? How rigidly should we be locked into the position of the DTI without having the possibility of questioning it? For example, the Minister of State said that the DTI says there will only be a small engagement from the private sector. In the way that it has influenced this Bill it has practically guaranteed that will be the case, and that worries me. I would like to see competition. I do not have anything  against State enterprises and I support them. They are a necessary, valuable and good part of our society and I regret to see so many of them being dismantled in the neighbouring island.
The laughter which met the statement from the Minister that CIE is the only group capable of living up to its timetable was general and came from all sides of the House. If a company has CIE's track record, it is important to have the possibility of looking at comparative costings so we do not allow CIE the luxury of manipulating the figures. I want to see a market tested figure and this cannot be achieved as easily under the Bill as it is presently phrased. I accept the point with regard to the CPOs and I have said this already.
With regard to the question of integration, any company wishing to make a profit will integrate with the existing system. What I am talking about is the laying down of a detailed plan of requirements in this Bill. After the inquiry, etc., we will come out together as a community with a package containing the kind of railway, the areas to be serviced and the places were the system should be underground and over ground. It would be a clear specific remit. Presumably the Government will have the power to compulsorily purchase the houses, etc., along the way. What I am talking about is a tender to build and run that light rail system, underground system or mixture of both. I do not see why this should be left entirely in the hands either of CIE or a subsidiary.
I remind the House that we are not talking about a series of different systems in competition with each other but a predetermined line. We know where it is going, what it will do, the required frequency of services, the areas it will service, etc. CIE should not be given the sole responsibility for this. There should be an element of competition. How otherwise is the Minister going to arrive at realistic market figures? Will she simply leave it to CIE to dream up whatever figure it likes? If so, and this is a crucial point, CIE could then undermine  the unified proposal by producing unsubstantiated unrealistic inadequately costed figures. CIE could maintain it was undercutting the unified proposal and express the usual surprise when it turns out that its figures have been underestimated three or four times. We simply must have some degree of competition.
I reiterate that when the DTI does not believe there will be private sector involvement of more than about 5 per cent, it does not want more than 5 per cent involvement. The whole ethos of the Bill seems inimical to the engagement of private enterprise. I am not a mad free range private enterprise person; but there is a place for it, in particular, in coming to a clear understanding of appropriate figures for State enterprise. I am all in favour of State enterprise. The danger to State enterprise is where it becomes flabby, the public become disillusioned and then wants to write the whole system off. If CIE is capable of producing comparative figures in the open marketplace and living up to them, let them have it. Why protect them?
Mr. Mooney: I have listened to this with great interest. At the outset, the two major public works which involved significant public and European funding with which I would be familiar were the Shannon/Erne canal link and the Lough Allen canal. The former cost over £30 million and the latter almost £2 million. Both were public service operations: ESB International built the Shannon/ Erne link; and the Office of Public Works, which is involved in major canal building projects around the country, built the Lough Allen canal.
I suggest we are being a little unfair to CIE, an organisation which, according to its annual report, has been undercapitalised and has been subsidising social routes, both bus and rail. How could CIE be making a profit? It was set up not to make a profit but as a social service and we will either live with that reality or we will not. In fairness, it is  easy for people to criticise and, as Senator Norris says, have a guffaw at the expense of CIE. In this regard, we are talking about an unproven situation and I have no doubt that if it is CIE which will build this link, it will rise to the occasion in the same way as other elements of the public service have done with regard to the projects I mentioned.
However, having said that, we would not be discussing this Bill but for the fact that £220 million has been made available by the EU for the provision of a light rail system in Dublin. Taking that as given, it therefore seems that what the Minister says about the involvement of private enterprise is valid enough.
An element of this proposal is contained in amendment No. 8 and it relates to the extension of the system to a line linking Dublin Airport to the city centre, which I raised on Second Stage. Who is to say that link could not be built by another public company, namely, Aer Rianta. Aer Rianta is a cash rich company which operates airports and has valuable overseas contracts which contribute significant sums of money to the Irish Exchequer. Therefore, it is a successful State owned company. It is in the transport business, albeit the air transport business.
Most city centre/airport links in European cities are built, managed, controlled and operated by airport companies and not State companies. My blanket statement to that effect is open to correction; certainly, there are several instances where the airport company has been involved in the building of the city link. If that is the case and we are talking about significant European rather than Exchequer funding, who is to say that we may not return to this House in the future to debate another enabling Bill, to enable Aer Rianta to built the Dublin Airport/city centre rail link.
Therefore, it was wrong that this particular amendment was thrown out for those reasons and not necessarily for all the reasons which have been articulated by my colleagues on the Independent benches. The Bill is flawed in that  regard and does not take account of some of the specific areas addressed in amendment No. 8. Therefore, we may find some difficulty in accepting this section in its entirety.
Mr. Daly: With regard to section 3(2)(d), I asked on section 1 whether the economic or social impact of the proposed development would be taken into account in the preparation of the EIS and the Minister clearly stated that the EIS would not take into account the economic impact of a proposed development.
Mr. Daly: In the light of that I had endeavoured to submit an amendment to section 5. On the debate on section 1, I ascertained from the Minister that the economic and social impact would not be taken into account in an EIS being prepared in any area on the line. I said that if I felt that was not covered, I would seek to put down an amendment to section 5. I have submitted an amendment——
Mr. Daly: It is very difficult for us. The Second Stage of this Bill was taken on Tuesday; it is very complex legislation. There is an amount of public anxiety about the consequences of what we are doing here. We are entitled to put forward amendments on Committee Stage on something as important as this legislation. It is clear from the——
Acting Chairman: We had a great deal of disorder here this morning. I am  advising the Senator that the Chair does not accept the amendment. Amendments must be submitted in good time before they can be accepted as they must be processed and examined as to their admissibility. That is the official position. The Senator can table his amendment before Report Stage.
Mr. Daly: We are entitled to an explanation from the Minister of State at this Stage in relation to how the economic impact will be evaluated in any EIS, with which we are dealing under this section. I want this clearcut and straightforward amendment to section 5 accepted. I could not have put it down sooner because we only got clarification on section 1.
Mr. Daly: I have to protest. We only got some of the amendments this morning; amendments were being circulated  in the Chamber when we came in this morning. It is important we have the same privileges as the Government, otherwise we cannot proceed in a reasonable and logical way. I have been the least difficult Member of the House in relation to procedural matters or anything else since I was elected. My position has always been constructive in an effort to get the best legislation. We feel this is necessary because we did not get sufficient time. We only got notification on section 1.
Mr. Daly: On a point of order, the Minister of Finance brings in amendments on a regular basis as the Finance Bill is proceeding through the House. We could not table this amendment before we got clarification of section 1.
Acting Chairman: I repeat for the last time that the procedure for the acceptance of amendments is that, before the proceedings start, amendments are accepted on the basis of their admissibility. Amendments are not accepted from the floor during proceedings. The Senator can continue to speak on section 3 if he desires.
Mr. Daly: I can speak on section 3(2)(d) in relation to the EIS and in relation to section 5 which I wish to have amended. No Member was in a position to decide what should be done on later sections until we got an explanation from the Minister of State on section 1. The amendment we wish to table on section 5 relates to section 3(2)(d).
Acting Chairman: I ask the Senator to resume his seat. I want to advise him that while I am in the Chair I require the Chair to be recognised. I have ruled that the amendment is not acceptable at this time.
Mr. Daly: This Bill only had its Second Stage reading in this House on Tuesday and we began Committee Stage this morning. I raised this issue on section 1 and I indicated at that time that, if the matter I wish to see in the EIS was not covered, I would seek to amend section 5. We need to get this clarification from the Minister of State before Report Stage.
The point raised in section 3(2)(d) is whether the economic impact can be measured and taken into account and presented at the inquiry, which is the essential reason for having an EIS. The EIS should be able to provide detailed information to the inquiry on the environmental impact assessment. If it does not take into account the economic impact of the development, the disruption of families, the closing down of businesses and the loss of employment, the inquiry will not have the maximum information available on which to base its decisions. The whole purpose of what we are doing is negatived if we cannot clarify this.
Mr. Roche: Obviously, I have no option but to accept your ruling on the matter; I am not going to be disorderly. The requirement that amendments be submitted in good time is, of course, very sensible — it would make no sense if amendments could be introduced willy nilly. However, there are extenuating circumstances in this case because of the way the Government felt it was necessary to introduce the Bill; this was not the fault of this House.
I think section 3 is impoverished if the economic impact on the people affected by this line is not taken into account. It will give us a very false EIA and will mean that some of the true costs, in a cost benefit sense, will be put on third parties whose costs will not be represented in the calculations. I think the Minister of State will accept in time the validity of what I am saying. If an environmental impact assessment is to be anything other than an arid exercise, it is important and imperative that the social and economic impact on communities directly affected by the project be taken into account.
One of the arguments I would put forward against how assessments are made at present is that they are little more than genuflections in the direction of the green and environmentalist lobby and are actually quite arid. The EIAs which were conducted in Wicklow in the aftermath of the Luggala episode were examples of that. The totality of the environment, including the social and economic environment, should be included. We are doing ourselves an injustice because we will not be evaluating the full costs of this project. We cannot get a balance between the costs and benefits unless we take the economic and social impact fully into account.
Obviously, we will put forward an amendment on Report Stage because we have to accept the Chair's ruling. However, the timetabling has provoked this hiatus. If we cannot resolve it today  and if there are future occasions when it is necessary for any Government of any hue to introduce legislation with such a truncated timetable, we will have to have a better way to respond to it with proper and orderly debate.
Acting Chairman: I have ruled on this matter. I have advised Senator Daly that he has the right to put down the amendment on Report Stage. I will hear no further discussion on this matter. I call Senator Cassidy on section 3.
Mr. Cassidy: I respect your views, Sir, but I know your hands are tied. Common sense is required. The Leader of the House and the Committee on Procedure and Privileges will have to address the points made this morning. I accept your ruling and the position in which you find yourself.
Mr. Cassidy: I concur with Senator Mooney's submission on the link to Dublin Airport. Aer Rianta has a major part to play. It has been one of the most successful companies in this country over the past number of years. There is a genuine concern and interest on this  side of the House that the company can bring this link to fruition quicker than any other body. The delays in travelling from the airport to the city are ridiculous as is the window being displayed to the world of passengers sitting in a car or a coach for an hour or an hour and a quarter. Our priority is the initial investment of moneys that should be spent. Governments have neglected Dorset Street and the north inner city route into the capital. It is disgraceful. I am not going to stand for this any longer when something meaningful can be done to improve the approach to the city from the airport. We intend to force this issue.
Mrs. A. Doyle: Several points have been made, including private sector involvement, the airport link and the EIS. Please advise me if I have overlooked matters. With regard to the EIS, this section refers to the environmental impact statement that will be required. Section 5 details what should be included in the EIS, not this section. Worthy as are the points made by the Senators, they are in respect of another section.
Mrs. A. Doyle: I have no difficulty in discussing an amendment to section 5 on Report Stage, where the points made by the Senator could be more properly discussed. With regard to the question of Aer Rianta having its link to the city centre, the points made were cogently argued. In other cities where the airline or air company runs its transport system from the airport to the city centre — I am not an expert in this area — non-stop high speed rail is used, not light rail.
Mrs. A. Doyle: We will have another Bill about monorail. Light rail, which  involves multiple stops, is not suitable for passengers carrying baggage. Such a link will involve a different mode of transport. This Bill is only concerned with light rail.
Mrs. A. Doyle: Light rail is probably the least likely option for a connection between the airport and the city centre. Other cities have not opted to use it for such connections. However, the meritorious argument, not related to this Bill, that we need a system to get people from the airport to the city centre quickly is worthy of discussion and the sooner we have it the better, but it has nothing to do with this Bill per se.
Despite the persuasiveness of Senators, my case must rest with regard to the interesting discussion we have had on the private sector versus CIE with regard to the overall operation. I have stated the Government position in my reply to the Second Stage debate both here and in the Dáil.
Mrs. A. Doyle: Tomorrow morning if necessary. I am happy to sit through the night. We are not breaking. This debate will continue until it is completed. I am available all evening and am free tomorrow.
Mr. Manning: On a point of clarification, I said on the Order of Business that there would not be a sos and that we would continue until conclusion. I was then asked if there could be a sos. There will be a sos from 1.30 p.m. until 2 o'clock. This was my decision after consultation with the Whips. We recommence at 2 o'clock until completion.
Mrs. A. Doyle: I understood correctly the point that we would continue until completion. I am available, lest anybody think I have a problem. To be helpful to Senator Daly, I hope he will table his amendment to section 5, not section 3, which we are now discussing.
Mrs. A. Doyle: This is section 3. To be helpful on the amendment, detailed financial implications are not part of the brief, nor are the environmental impact analysis details. However, the overall impact of any project on the quality of human life, especially a major civil engineering project such as this, must take into account the general economic situation, be it major job losses or major loss of houses or businesses. It can take the general situation into account, but there will be no detailed financial implications or compensatory issues involved in the EIS.
I am not in a position today to write the detailed requirements of an EIS in respect of any section of the Bill. We take it as read; it is different legislation.  We may have genuine and laudable comments to make about what can and cannot be included, but that is for another forum and for other legislation. It is another day's work.
I hope we can agree on some of the generalities, if not some of the specifics of section 3. The section provides that CIE may apply to the Minister for a light rail order, specifies the documentation to accompany such an application, including a draft of the order or plan of the proposed light rail works, a book of reference to the plan and the EIS. In general, these provisions on applying for a light rail order follow the provisions of the Transport Act, 1963, as it relates to the application for a railway works order. Specifically, section 5 of this Act makes provision for the holding of a local inquiry into an application for a railway works order. In this case the procedure is adequate to take into account the requirements of an environmental impact assessment and statement.
Mr. Mooney: The Minister of State's reply was intriguing, because in arguing against the involvement of another semi-State body she said it would be a rapid rail system, probably non-stop, and that a light rail system would not be conducive to that concept.
Mr. Mooney: It has already been agreed, regarding the amendments to section 1, that undergrounding will be included, because nothing is being excluded or included. Many extensions to airports from city centres with which I am familiar are underground and have stops along the way — Heathrow Airport to London city centre is the most obvious example. There is a series of stops and it is not a rapid rail system all the way to the city. I do not want to enter the argument about the various systems.
Mr. Mooney: However, it is important to establish the principle and that is why I cited examples. It is not right that the Bill should go forward without establishing the principle that an entity other than CIE, but also in the State sector, could be involved. However, mentioning CIE exclusively rules that out and it will be necessary to introduce more legislation in the House at some point. I agree with the Minister's view that, irrespective of the Government in power, the momentum towards establishing a link from the city centre to Dublin Airport is unstoppable. It will happen sooner or later. Whether it takes place under the current operational programme or the revised programme which will be introduced after 1998, everybody agrees it will build its own momentum.
Mr. Mooney: This is why it may be necessary to introduce further legislation. The Minister may say that is the purpose of the Oireachtas and I do not disagree. However, given that this is enabling legislation, this aspect should be acknowledged. As Senator Cassidy outlined earlier, amendment No. 8 referred specifically to the establishment of a link from Dublin Airport to the city centre.
The amendment is straightforward. Its purpose is to ensure a level playing pitch so all the information will be available. It is only in circumstances where all the comparative information is available that a proper choice and decision can be made. It is so straightforward that I hope the Minister will find it possible to accept it. I am happy to listen to her views on the matter and, in the event that she finds it impossible to accept the proposal, I shall engage in further argument.
Mrs. A. Doyle: I appreciate the Senator's concern that the maximum level of information be made available to the public. I share his view, but we may be in danger of confusing the many different elements of the approval procedure. The amendment proposes that all options be evaluated under all criteria at each step. This includes the environmental impact assessment, which is a two step procedure introduced into planning requirements by EU regulations.
The developer is obliged to prepare the EIS and active public involvement in the assessment of the EIS is encouraged. Full provision for that is made in this case and the section as drafted already includes a requirement that, where appropriate, an outline of the main alternatives, if any, studied should be included in addition to an indication of the main reasons for choosing the proposed alternative, taking into account the environmental effects. The final clause reminds us we are dealing with the environment.
The requirements of the section seek to ensure that an adequate statement of the impact on the environment is prepared. It is essential the environmental  impacts of the proposed alignment are fully and clearly stated so a decision can be ultimately taken which takes into account the effect the development would have on the environment. In doing so it is reasonable to outline from an environmental perspective what other options were considered and why they were not chosen. It is unreasonable to expect the environmental impact statement to set out a detailed analysis and costing of the main alternatives studied. The form of words used in the Bill is identical to those used for other major developments where an environmental impact statement is required. It copies the EU directive requirements.
Amendment No. 12 deals with submissions from local communities. The essential point is the need to ensure adequate local consultation. I agree fully that this is critical to the success of the light rail project. The amendment proposes that the environmental impact statement should include submissions from local communities. This is not appropriate as the environmental impact assessment procedure is a two stage process. The developer prepares the statements and then interested parties, including local communities, can make their submissions.
However, during the debate in the other House I agreed that submissions received by the LRT team should be available to the consultants preparing the environmental impact statement. I undertook to ensure that is done. I do not doubt it would have been done anyway, but I specifically stated we would ensure that will be done. It is important to note that the local communities along the proposed routes can make submissions directly to the Minister on any of the aspects of the scheme, including the EIS, which must be considered by the Minister as part of the environmental impact assessment. For the reasons outlined, I am not in a position to accept the amendments.
Mr. Norris: I am inclined to accept the Minister's comments with regard to amendment No. 12. It appears she has  met most of the points raised by the relevant residents' associations, which extensively briefed Members on both sides and which have a good human case. The Minister indicated they are aware of the machinery by which submissions should be made, including directly to the Minister and other ways. She guaranteed they will be taken into consideration and brought to the attention of the review body. This meets my requirements.
However, I wish to press the point contained in amendment No. 11. I recognise a statutory element is included and that this is usual practice. A form of words is introduced, but that does not mean it cannot be altered. Just because the package has been found to be useful and is included almost automatically, word for word, in different legislation, it does not mean it is immune from consideration or amendment. I accept the principal interest is environmental in the narrow sense of the impact on the natural environment. However, as I said earlier, section 5(1)(c)(iv) mentions material assets. This is a wide frame and could be construed as including the costing of the main alternatives. It is not the costing of every hare brained scheme, but the main alternatives.
Perhaps the Minister will accept, or introduce, an amendment later to ensure the detailed analysis and costing of the main alternatives is studied at a particular point in the process. The Minister pointed to paragraph (e) where it says “where appropriate, an outline of the main alternatives (if any) studied and an indication of the main reasons for choosing the proposed alternative, taking into account the environmental effects.” I accept that is there, and I am sure the Minister would also accept that, on the underground option, the principal but largely undocumented reason against it has been one of cost. The environmental factors are massively on the side of the underground option. We come up against the question of cost again and again, yet CIE is allowed free  rein to dream up figures and not have them placed in a competitive framework. At some stage in the process we must have a detailed comparative analysis on a cost benefit basis of the principal alternatives.
It seems that, although it is not a regular feature of this kind of paragraph, it plainly could be so interpreted because, first, material assets are mentioned, and second, where the main alternatives are mentioned as being analysed and reasons given for ruling them out, the reason that will be adduced will be an economic one. To date, we have not had a level playing field for the underground option. I want to ensure that it will be insufficient for CIE or LUAS just to say that the underground option is far too expensive. They must justify that attitude.
This is one mechanism for doing that. It may be a little unorthodox in that the easiest thing is to lift a prepackaged section which fits in automatically with European regulations and put it in. We can change this and it is not beyond the parameters of the existing section for those two reasons — we already contemplated material assets and we will review why one was chosen rather than the other. We know perfectly well what reason will be advanced against the underground: it is one of cost. We are entitled to know what the facts and figures are and we want them analysed in detail. As Senator O'Toole said here today and I said yesterday at the meeting in the Minister's office, if after this detailed cost analysis it can be convincingly demonstrated to an ardent supporter of the underground system like myself that we are way out, then we will gracefully withdraw. We will not do that until we have that detailed analysis and justice demands that we have that analysis built into the Bill. This may not be the most elegant place to include it, but it is not to be ruled out.
I would be most suspicious if there was no inclusion of such detailed cost benefit analysis in the Bill, otherwise we would be giving carte blanche to CIE. I  do not want to impugn CIE all the time. It does a good job but as legislators we have a responsibility to the taxpayers to ensure that they get a good deal for their money.
Mr. Roche: I reiterate some of Senator Norris' points. First, to deal with amendment 12, I would not be as content as Senator Norris to dispense with it. I do not doubt the Minister's commitment to consultation with communities in the widest possible sense, but the reality is that if we dispense with amendment 12, the Bill does not say that that is what must be done. My experience in such matters — going back to the Luggala controversy — is that unless it is said that this shall and must be done, when the Bill is out of the way and the messy business of getting the legislation through is overcome, all the expressions of goodwill from political figures tend to be frittered away and wound down by public officials, who are singlemindedly focused on getting what they believe to be the best thing through. There is a danger there.
On section 11, Senator Norris argued the case very cogently indeed. It may not be the most elegant way to incorporate the requirement that there be a full and accurate cost benefit analysis of the various alternatives, but it is vital if this project is to make sense that we have a full and appropriate costing of undergrounding. The only major problem I have with this project is that I believe a mindset against undergrounding the project set in at a very early stage among the administrative planners. The argument that undergrounding would be very expensive was simply an argument and not based on any logical analysis. The reality is that the big impact of LUAS between the two canals, which is what most of us are concerned with, is that you cannot put a gallon into a pint pot. If we take a serious chunk of the road surface out of the general public's usage by putting LUAS over it between the two canals in a heavily congested area, we are not going to put a beneficial new public  transport service into operation. The reality in every city is that people continue to use their cars because of the individual mobility and flexibility it gives them. If we progress with this project without looking more adequately at the full cost of undergrounding in the areas mentioned, we will give the people a very bad deal.
My problem is that five or six years down the line when light rail comes into operation — I would be an ardent fan of a multiplicity of public service transporters — and the traffic chaos in the inner city has not been resolved, this House will be looking at the idea of public funding for undergrounding. It is very imprudent that we should progress without getting a true balance. None of us has sufficient technical expertise in the area of the alternatives and of the costs and benefits of undergrounding that portion of this project. It is a good project but in a couple of years we will be talking about an underground system. We are doing a serious disservice to the people of the city and the nation if we do not make a decision with the fullest of information.
Mr. Dardis: On amendment 11, I would go further than Senator Roche in saying that there is a mindset against the underground; there is a mindset against alternatives. It has been decided that a particular option is a desirable option. That is fine in itself provided the alternatives can be examined but what is wrong is that the proponents of a particular scheme are the people who will carry it out. If there was a competitive element and other operators could put forward their proposals and have them dealt with by independent adjudication, that would be acceptable, but we do not have that in the Bill.
I am extremely sceptical about the lack of information available. It disturbs me that we do not have the information to make a reasoned judgment on what should be the alternatives. But for the fact that there were people prepared to take on the colossus, so to speak, a lot of this would have gone through without  much difficulty. That would have been very bad. It is important to tease out these issues.
As for the environmental impact statements, and amendment 12 which deals with submissions to communities, I share Senator Roche's view. I would not be as content with the Minister's reply as Senator Norris appears to be. It is my experience that environmental impact statements are commissioned by the people who put forward the plan, who will implement the plan and who expect the environmental impact statement to accord with their wishes. Groups of independent experts are brought in by the local authority, or in this case the board. There are archaeologists, environmentalists, those who are interested in flora and fauna and those who are interested in heritage. They all come in and do their job, but they are commissioned by the people putting forward the scheme.
I do not know of a case yet where the environmental impact statement stated categorically that a scheme should not go ahead. I would be very interested to know of a case where that happened. I have never heard of a large civil engineering project being abandoned on foot of an environmental impact statement. I know of a case where one was stopped because there was an archaeological site and the project was re-routed around the site, but I would be very interested to know of a case where a project was abandoned altogether.
That is why it is important for local communities to have the capacity to make their input at that level rather than at the public inquiry. I have seen what has happened when local communities' interests have been totally overwhelmed by the local authority. I am sorry to keep referring to the matter of the motorways, but they are very good example. We spoke about the need to prevent a single individual on the route from holding up the building progress. It is reasonable that it should not be open to a vexatious individual to stop something from happening; but where the local community as a whole  will suffer, it has every right to be heard and to have an input in the matter.
I said on Second Stage that there is a need to make a distinction between information and consultation and the Minister accepted this. Some of the people who put forward these schemes seem to be of the opinion that providing information to the public is consultation and it is not. Consultation is a two way process and information is a one way process. That is another reason why it is absolutely correct to take the views of local communities into account. In the case of the Kill dump in Kildare the views of the local community were cast aside. People could go to the public inquiry and have their input there. It can be said that everything was above board, correct and proper; perhaps it was, but the local community definitely felt excluded from the whole process.
That kind of exclusion leads to resentment and difficulties when schemes are being proposed, so a degree of meaningful consultation must take place and the vested interest which is putting forward the scheme must be subject to examination and to its views being challenged meaningfully and coherently. Otherwise the system seems to be another empty whitewash which allows things to go ahead which should not do so. This scheme will cost a great deal of money and we need to get it right. We have been told many times in respect of schemes put in place using structural funds that this is our last chance to get it right. It frequently seems to me that it is a case of finding a scheme to fit the money rather than finding the money to fit the scheme. Finding the scheme to fit the money is the wrong way to go about it.
Mr. Quinn: When making a management decision one does a cost benefit analysis. You see the cost and you see the benefit. This is amendment is important because it ensures that in taking the cost into account, not only the financial cost but the cost on the environment, is counted. This amendment is  worthy of support. There is a concern that this legislation has been pushed through without full consultation because there seems to be a commitment to make sure that the scheme goes through as originally planned, that is, without the option of an underground system.
There is no doubt that the environmental impact of an underground system is far less than the impact of an on-street system. This deserves support and every consideration because it attempts to establish the true cost of going underground as against the on-street system. I will take a case in point. In the Mount Brown area of Kilmainham some hundreds of people work along a short stretch of street where it is planned to run the light rail. The impact on those businesses of an overground line will be severe, but they will not be affected by an underground system. We have to take that environmental impact into account in establishing what the cost and benefit of each alternative is. The environmental impact is not being taken into account strongly enough and this amendment would ensure that it was.
Mrs. A. Doyle: Once again we have had a broad range of points of view cogently argued. I am still not in a position to accept these two amendments. The main point of concern here appears to be the need for detailed costings of alternatives and Senator Norris said if this is not the right place to seek them he needs assurances that they will be provided. He said that at some point we will need the costings to do a comparative analysis.
Those costs will be available when the Semaly report is published in July. They will have to publish their costs. The Senator will ask me how detailed those costs will be. I cannot tell him that. However, they will have to be sufficiently detailed to justify the case for the choice made. They will be sufficiently detailed to allow comparative analysis of the alternatives. That is the very question the Senator asks. He asks whether we could at some point provide  the necessary costings for comparative analysis. When the Semaly report on the underground option is published in July it will include costings which can be used.
Many Senators have righly said that one of the main objections to the underground option — it is not the sole objection — is the cost. It is a lot more expensive than an on-street option. The on-street option came from the DTI report, not simply from the Minister or because we are being driven by money or for any other reason. Even before we knew how much money would come from the operational plan, the DTI preferred the on-street option. It looked at it, I do not know how detailed the examination was. The DTI consultants, Steer Davies and Gleave, looked at the on-street and underground option for the DART and for the DART, the underground option was much more expensive. I am not sure how much more expensive it was but it was certainly double the price of the system chosen. It may be more but I will not over-exaggerate the case.
Mrs. A. Doyle: We have to make up our mind at some stage about whom we listen to. At this stage you have ruled everyone out as wrong, so you are back to the Minister, who has the ultimate decision. Even with the full support of the democratic system the Minister needs to be advised by consultants and experts in the field.
Mrs. A. Doyle: I know the facts, Senator, and I know about the overrun. However, we have to listen to someone. We are not just listening to CIÉ. CIÉ's original preference was for an underground system. We then had the DTI process, which I will put on the record because we forget just how detailed it was until we are reminded. The DTI process recommended the on-street option. CIÉ was told that the DTI had recommended an on-street system and to prepare for that. We had a lot of debate. People have made their case and asked why we are not considering the underground option at all, so CIE has been told to employ transport consultants. These are internationally recognised transport consultants and they have been engaged to put the case before us to look at the underground option. They will have to have costings there so we can decide whether to choose an on-street option or an underground system.
There will be a point at which we can make a comparative analysis. That should be when the Semaly report on the underground option is published, because we will have the costings in relation to the overground option. Other factors, not just costs, will impact on a decision in relation to a choice of an underground or on-street option. Many do not like the underground option because it is more restrictive, particularly for the mobility impaired. There is also the business of constructing it under the city, which I do not dismiss as lightly as do other people.
This is not just an excuse to justify the Government's view that the light rail system should be on-street. This Government and the Fianna Fáil/Labour Government accepted the DTI's view that the preferred overall strategy would be to have an on-street system. However, the underground option, or the possibility of running sections of the line underground, is being considered and the consultants' report into this matter will be published later this month.
I agree with Senator Dardis' point about the necessity for meaningful consultation. As I stated on Second Stage,  I have not been altogether satisfied with the first six months of the consultation process. I was quite frank when referring to some of the reports I received about the operation of the so-called consultation process and I went into the details of how it has been tightened up. Regardless of the amount of discussion and consultation, however, there will be those who will not be satisfied with the final decision on the actual routes involved. Some people will be discommoded to a greater or lesser extent.
The Government will be obliged to make a final decision on this matter. I believe that those who disagree with it will feel they were not consulted and that their point of view was not taken on board. Everyone is inclined to state that they were not consulted, but they really mean that they did not win the argument. There must be a distinction between true, meaningful and comprehensive consultation — which I fully support and which must be put in place — and people who engage in making complaints. Those individuals are the ones who will be discommoded at the end of the day.
Mrs. A. Doyle: When discussing the light rail system with its critics, it is evident that they believe they have not been consulted once it becomes clear that a proposed route will affect their house or place of business. They actually mean they are not satisfied. I make this point so that Members can be clear about what is involved. We must be honest and realise that no matter what type of legislation or consultation process is put in place, people will be affected by the light rail system.
The Minister for Transport, Energy and Communications, Deputy Lowry, dealt with Second Stage of the Bill in the Dáil and I have been involved with the remaining Stages in the Dáil and the Seanad. Two approaches were made to me since I began dealing with this legislation.  I was informed that there are those who will be severely affected by the light rail system, including elderly people whose families lived in the same house for three generations. These people know no other community than that in which they live and, at 70 or 80 years of age, no amount of money will compensate them if they are obliged to move house. Regardless of the sort of palace they are put in, it will make no difference at this stage of their lives and will impact terribly upon them.
Mrs. A. Doyle: I was approached by other people who informed me that if they received enough compensation they would be delighted to have the light rail system run through their area. Therefore, I received two different messages from representatives of one particular street. We must do what is best to ensure that as few people as possible are discommoded with regard to carrying out their business. However, there will be individuals who will not be pleased and will continue to claim that they were not consulted. Their views might not be acted on, but I hope that everyone's opinions will be heard.
This issue involves four stages, including the informal consultation process, which was tightened up because I was not happy with the relationship between CIE and some of the groups. The names of liaison officers will be made public and telephone numbers and addresses will be made available so that people will know who to contact about their problems. If CIE or those negotiating with the public on CIE's behalf display any discourtesy, arrogance or highhandedness, it should be brought to my attention or that of the Minister for Transport, Energy and Communications, Deputy Lowry. I do not consider it acceptable that this should be the case. People's views must be listened to courteously and taken on board.
There are many other stages at which there will be consultation. As I already  stated, the communities must be heard and their submissions passed on to the environmental impact assessment team. I assure Members that this will happen. In the formal phase, communities and individuals can make further submissions to the public inquiry. They can approach the Minister, individually or collectively, at any stage and he must take their submissions into account for consideration. There are four different ways in which people can consult. The informal consultation process, which has been in place for some months, has caused the most problems. If it can be strengthened, we will do so. However, there are three other stages at which there will be consultation between the public and the system being put in place.
I accept Senators' concerns about CIE, and those negotiating on its behalf with the public, falling short of an acceptable standard of consultation. I request the people to inform my Department if that is the case. I do not want anyone to feel that this legislation is window dressing in any sense, it is not. We are here to listen and any genuine submissions must be taken on board.
The Bill does not represent a mindset against the underground option. The DTI recommended an on-street system and we are awaiting the Semaly report in this regard. There is no mindset, we are merely following the DTI's recommendations.
There is a tendency, with which I would probably agree if I were sitting on the other side of the House, to dismiss the DTI, inquire whether the Government has an opinion of its own and ask if Members cannot hold their own opinions and amend the findings of the DTI report. The reality is that the DTI was one of the most comprehensive initiatives established by any Government in this country. It is no harm to remind ourselves of that fact. We may not agree with its final recommendations in the same way that we may not agree with the final decision relating to the light rail routes.
The DTI process took three and a half years to complete; £2.5 million was  spent on its completion; 130 people participated and four committees, which between them met 100 times, oversaw the entire process which; there were two phases of public consultation with DTI involving 26 public meetings; two market research surveys, each with 1,000 respondents, were carried out along with social and community research and there were almost 100 days of exhibition. People tend to forget the strategic manner in which these decisions were made because the report was published some time ago. However, there was an enormous amount of involvement in the DTI process. All the Departments of State and seven local authorities were also involved.
I would like to remind Members about the outside bodies which contributed to the conclusion that on-street light rail was the preferred option. Those involved included the Dublin City Centre Businesses Association, the Chartered Institute of Transport in Ireland, the Council for the Status of Women, the Dublin Port and Docks Board, the Dublin Chamber of Commerce, the Royal Town Planning Institute, Bus Ath Cliath, the Automobile Association, the National Bus and Rail Union, the Institute of Engineers of Ireland, the National League of the Blind——
Mrs. A. Doyle: ——the National Safety Council, University College Dublin, Aer Rianta, Students Against the Destruction of Dublin, Iarnród Éireann, the Garda Síochána, the Forum for People with Disabilities, the Society of Chartered Surveyors, the Environmental Research Unit, the National Council for the Elderly, the Living City Group, Dublin Tourism, the SIMI, Leixlip, the Irish Taxi Drivers' Federation, IBEC——
Mrs. A. Doyle: They were represented on the consultative panel which accepted the final report of the DTI. I am trying to give an indication of the degree of consultation which took place outside the State, semi-State and local authority sectors, which, one might say, had a vested interested in the report. A major part of the private and voluntary sectors were also involved. It is important to make that point. This is not the view of the Minister or the Government or its predecessor, it is the view of the DTI following years of research to find the best proposal.
Mrs. A. Doyle: The SIMI was represented at the DTI. I regret I am not in a position to accept the amendments for the broad range of reasons I outlined. I hope I have given Senators sufficient assurance that their well-founded concerns will be met by other sections of the Bill, if they are not met by this section.
Mr. Roche: We believe amendments Nos. 11 and 12 are necessary for the reasons we outlined. In the case of amendment No. 12, Senator Norris said he was happy with undertakings which has been given, but I am not, However, I am not questioning the Minister's goodwill on the issue. The views of residents and community groups must be taken into account under the existing arrangements. I drew a parallel between previous experiences with environmental impact assessments. The EIS system takes into account concerns as regards flora and fauna; it is concerned about butterflies and snails, but it does not  show much interest in the economic life of communities impacted on.
Amendment No. 11 is aimed at producing a situation where the full and true cost of this and alternative projects would be made available. As Senator Norris made clear, the full opportunity cost of going the route we propose is not taken into account. The Minister deserves at least nine out of ten for a her valiant effort to deal with this point. However, in terms of the other onetenth, she failed to deal with the issue. The present arrangement will not deal with the full opportunity costs.
We are discussing in a vacuum a Bill which will have a profound effect on the life of this city for generations. As Senator Norris and others said, unless we have the full cost of going underground we cannot make a logical decision at this stage. It is imperative that we incorporate in the Bill — section 5 is as good a place as any and section 11 achieves the objective — a full requirement that the total cost of the alternatives be made available. We should not be discussing this Bill and bringing it to finality until we know the full cost. The Minister will make the point that there are chicken and egg situations all the time and that this enabling legislation, which I accept. However, enabling legislation should require the full opportunity, direct and indirect costs to be made available before we make a final logical decision.
Mr. Magner: The response to amendment No. 12 has, to a large extent, been accepted. The Minister's response to that section was fulsome enough. She said there would be enough information as regards the detailed analysis and the costing of the alternatives. It might be cheaper to build this than to get the detail on which people could insist. If we get enough information to make a valid judgment on the costing, people should be satisfied.
The Minister made an important point in response to Senator Cassidy. She spoke about the four layers of the consultative process. I regret the first  layer was not handled as sensitively as it should have been, although the Minister said that it will be from now on. We are dealing with people's lives and they are desperately concerned. If a person builds up a business and somebody tells them to take a hike in the interest of the State, they should be adequately compensated and relocated. As the Minister said, these matters, which are paramount in the minds of all of us, will be the subject of a public inquiry and subsequent adjustments.
Mr. Norris: If these amendments are accepted I am sure the Minister will not be too distressed. She understands and sympathises with the principle, although she has some doubts. The DTI has been extensively quoted. The Minister who is a fine public speaker made a couple of good debating points. She mentioned that the DTI met for so many hours for so many years, that there were 160 people on it and that it cost £2.5 million. I do not care if it met twice as often and cost four times as much if it still did not arrive at the appropriate answer — I am not saying this is not the one with which I agree — if it is not capable of justifying it and if at the beginning it did not take the proper decisions. It is now acknowledged that there were flaws in the process so it did not matter how much was spent on it and how many people were involved in it marginally or nominally.
The Minister of State played a very good trick when she read out the list of people involved. Does she seriously imagine the SIMI would be happy with the view that the principal objective of a public transport network is to drive the private motor car out of the centre of the city? I do not believe it would. I have no such evidence but I would be surprised if they were happy with that because they are shrewd and good lobbyists. I have often been in touch with them and I doubt that they are prepared to commit this type of hara-kiri to satisfy the DTI. Reading out a list of people who at some stage had a nominated representative attending a couple of meetings does not mean they were all  in fulsome agreement with the process or with the end result.
The DTI is being quoted as if it was the most democratic and exhaustive consultative process. However, only three issues arose — light rail, the eastern by-pass and the underground system. Two of them were ignored and the only one that was really considered was the on-street rail system. If only one option is being considered it is inevitable that one will be in favour of it. If a body is set up in such a way that it is obvious there will be this type of bias, one can easily put people on its committees, include them in meetings and then list them as consenting. However, I wonder how freely given was that consent or how pleased those groups would be to be quoted as being in support of the end result.
I am not in a position to comment on the Semaly group of consultants. It is beyond my capacity to judge them and I am sure they are reputable and internationally recognised. However, Senator Quinn made an important point which was reinforced by Senator Dardis when he spoke on the related issue of environmental impact surveys commissioned by particular interest groups. In a way, the psychological framework is created by the group which commissions the report. The terms of reference for the report are also highly significant. This is an issue with which we dealt in our meeting yesterday with the Minister. He said that CIE has been told “to get their consultants, Semaly, to look at the situation”. Semaly are CIE's consultants. I am not impugning their reputation but in a curious way they may be psychologically programmed in a particular direction. Senator Quinn said as much this morning. If a body commissions a report it is not independently commissioned. That point is worth making.
One reason we want to get the detail of the cost analysis is that the Minister of State referred to the proposed operating surplus on the LUAS. In order for that to work one is anticipating a higher percentage take up than already exists on the DART and that is highly unlikely in the case of LUAS. There are speculative figures which are inflated to suit the LUAS option and deflated when looking at the underground option. That is why it is necessary to have a detailed cost benefit analysis.
With regard to amendment No. 12, I believe as strongly as other Members that people should be consulted. There is a degree of cynicism that they will not. However, the Minister of State has made it clear that submissions can be made directly to her and she has given an undertaking to pass them on. There are representatives of various groups in the Visitors' Gallery and they heard her make that statement. It is now their responsibility to make their views and submissions known to the Minister of State and ensure that this process is carried out. On that basis I do not feel as strongly about amendment No. 12 as I do about amendment No. 11. With regard to the latter, I am sticking to my guns.
Mrs. A. Doyle: I ask the Senators to look at the wording of the Bill without the addition of amendment No. 11. I have serious difficulties with the amendment even having listened to the well argued case put forward by Senator Norris and other Senators. To insist on detailed costings of alternatives would mean that those carrying out the environmental impact assessment would have to have the technical capacity to give detailed costings of, for example, an underground alternative. They would have to carry out all the probing and so forth, which would involve several years  work, to give what could reasonably be called detailed costings. That would frustrate the project to the point where we would not be able to complete it by the year 2000, which is what we must do.
Section 5 (1) (e) provides that where there are alternatives they must be studied and the environmental impact statement should indicate the main reasons for choosing the proposed alternative. If one of the reasons for not choosing an underground is the cost — that is the argument being put forward at present — sufficient analysis of the costings will have to be carried out to be able to rule it out or to rule in favour of an over ground option. There is provision to go a long way towards meeting the sentiments that have been expressed by the Senators. I agree with the general case being made but I have severe difficulty with including an amendment that ties the EIS specifically to detailed costings. In technical terms, one is looking at costings which are so detailed that one would have to invite tenders. The EIS is not the place to do that. However, any alternative, including the underground, will have to be sufficiently costed to rule it out. The findings of the EIS and of Semaly will be published.
With regard to doubts about the independence of Semaly, they are highly reputable and professional. They have an international reputation which they will not jeopardise on foot of a nod or wink from CIE. I am assured that they are one of the top international, highly reputable transport consultants and they have carried out this type of work for many cities throughout Europe. I doubt that they would jeopardise their reputation to placate CIE or even a Government. They will get their fee for being totally objective, regardless of other considerations, so it is not in their interest to risk their reputation and to be other than strictly honourable in how they carry out an assessment of the underground option in whole or in part. Their assessment will have to be sufficiently detailed in costs to allow them to publish it and to justify going under-tenth  ground, over ground or part underground. The Senators should accept my assurances in that regard.
The environmental impact statement must also have regard to any alternatives, which will include underground. It must also have sufficient detail about costs to justify ruling underground in or out. It is my nature to accept amendments, as I have proved previously, but I am advised that this would cripple the EIS procedure and so disturb the timetable that we may not get to implement the first phase by the year 2000. That timetable is not of mine or the Government's making; it is the operational fund's requirement. I ask Senators to look again to see if we have gone far enough in terms of this Bill.
Mr. Norris: The Minister, by her very well argued case, makes me feel less pain in pushing the amendment to a vote because she has indicated there is a very narrow gap between us on this and that, in any case, there will be an analysis of costs, etc. This amendment says “a detailed analysis”. The degree of detail may be, to a certain extent, flexible; we are just looking for an appropriate amount. The amendment also says “of the main alternatives”; we are not looking at every hare brained scheme on the planet. My inclination is to push it to a vote. However, if it is not pushed now, we can have consultation and push it on Report Stage.
Mr. Norris: I am not withdrawing it yet unless the Minister can put an amendment forward on Report Stage which would cover the situation more comprehensively. The gap between us is narrow. It is not a question of me trying to get an amendment with my name on it. I am looking for a detailed analysis of the underground option to be presented as part of the plan. Can the Minister satisfy me on that? She has not yet done so because it is not clear in this provision that this will be done — it may  be done. I am inclined to put it to a vote because I do not think the difference between us is too great, but if the Minister can satisfy me, I will leave it to Report Stage so that we can further reflect on it.
Mrs. A. Doyle: I have no difficulty in looking again at section 5 (1) (e), which is the provision the Senator would like strengthened or made more explicit to take account of the point made in his amendment. I will, in the brief time between now and Report Stage, ask my officials to see if there is any way of doing this. I cannot give any guarantees because I have not had time to discuss it with them.
Mrs. A. Doyle: I could not do that for the reasons I explained. The amendment was not before me so we could not discuss it. However, we can consider both on Report Stage. I will look at the amendment but I want to be honest with the Senator. I do not know which way it will go but I will ask my officials to see if there is any way we can strengthen the wording of section 5 (1) (e) that will more closely meet the point he made.
Mr. Norris: I am not entirely happy with that but I think it is as far as we can go. I would like to serve notice that failing that, I will push it to a vote on Report Stage. I do not want to keep the House going endlessly on points that will not get anywhere.
Mr. Manning: The Minister has been reasonable. It is not a question of filibustering. This is a genuine attempt to see if Senator Norris' point can be met. If it cannot, we need not have a long debate on Report Stage; it could be over in five minutes one way or another.
Mr. Roche: I see no problem with doing it in the reverse order. The Minister should accept the amendment now and if she wants to reword it on Report Stage, we would have some  security that we would not have otherwise.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
Farrelly, John V.
Ross, Shane P.N.
Tellers: Tá, Senators Cosgrave and Magner; Níl, Senators Fitzgerald and Norris.
Question declared lost.
Amendment declared carried.
An Cathaoirleach: Paragraph (e) of section 5 (1) of the existing Bill has been deleted. The proposal is to substitute the new paragraph (e) in amendment No. 11.
Question put: “That paragraph (e) be substituted for the words deleted.”
The Committee divided: Tá, 26; Níl, 25.
Kelleher, Billy. O'Brien, Francis.
Norris, David. Quinn, Feargal.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
Ross, Shane P.N.
Tellers: Tá, Senators Fitzgerald and Norris; Níl, Senators Cosgrave and Magner.
Question declared carried.
Mr. Norris: I move amendment No. 12:
In page 6, between lines 33 and 34, to insert the following new paragraph:
“(f) relevant submissions from local communities along the proposed route, and”.
Mr. Mooney: On a point of information, may I speak to amendment No. 12?
An Cathaoirleach: No. It was discussed with amendment No. 11.
Amendment put and declared lost.
An Cathaoirleach: Amendment No. 14 is an alternative to amendment No. 13 and they may be discussed together.
Mr. Norris: I move amendment No. 13:
In page 7, lines 9 to 12, to delete subsection (3).
Senator O'Toole has asked me to move this amendment on his behalf. This amendment is to delete subsection (3) and is similar in purpose to amendment No. 14 in my name which states:
In page 7, subsection (3), lines 9 and 10, to delete “The European Communities (Environment Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989), and”.
The effect of the Bill appears to exclude the process from the environmental impact assessment regulations and the Local Government (Planning and Development) Act. Why? On Second Stage the Minister of State explained her position which dealt with one element of the matter.
I assure the Cathaoirleach and the Leader of the House we will try to expedite matters and there will be no filibustering. We will concentrate on the more important amendments.
Mr. Manning: The Senator has all day if he wishes.
Mr. Mooney: This section, in context with another, informs us there will be public inquiries, consultation and environmental impact assessments. However, there is a suggestion that whatever happens the Minister can ignore section 5 (3). I appreciate Senator Norris' point in the context of the Minister's remarks on Second Stage,  but there is a concern that there may be a by-passing of procedures. Will the Minister of State clarify why it is believed the Bill is strengthened by exemption from two important sets of regulations from which, in normal circumstances, we would not propose to provide an exemption?
Mrs. A. Doyle: There has been a great deal of concern expressed in the Dáil and in this House about the references to the fact that the European Communities (Environmental Impact Assessment) Regulations, 1989, will not apply to light railway works. There is a fear that an essential provision of EU requirements is being avoided. I assure Senators this is not the case.
The noise leads me to wonder if my answer is of interest but I will put in on the record.
Mr. Mooney: On a point of order, I do not wish to cause problems for the Minister of State, but when I was speaking she was engaged in conversation with one of her officials.
Mr. Manning: That is poor.
An Cathaoirleach: The Minister of State is now replying.
Mrs. A. Doyle: I was getting advice from one of my officials which is the point of the officials being in the House.
Mr. Mooney: I was taking advice from my colleagues.
An Cathaoirleach: The Minister of State of State to reply.
Mr. Mooney: Such comments diminish the Minister of State.
Mrs. A. Doyle: The Senator should relax. I will not apologise for taking advice from my officials on an important technical Bill such as this. It is more important to me than playing politics and I will take advice from the  people who have the information. The Senator should play politics another day but not with this Bill because it is too important to the people of Dublin. I am surprised at those who are playing politics with the Senator; it disturbs me.
Mr. Mooney: On a point of order, I was awaiting the Minister of State's reply. What is the point in her immediately saying nobody was interested in listening to it?
Mr. Reynolds: Untrue.
An Cathaoirleach: That is not a point of order. I call the Minister of State to reply to the amendments.
Mrs. A. Doyle: There has been a misunderstanding of the nature of the EIA regulations. The EU requirements are set out in a Council Directive which has in turn been brought into Irish law by regulation. These European Communities regulations, for example, have a number of main parts. One deals with the application of the EU requirements in the planning process. Light rail is exempt from planning requirements and, therefore, these provisions are not relevant.
Another part deals with environmental impact procedures in specific legislation. For example, it applies the directive to developments carried out by local authorities under the Public Health (Ireland) Act, 1878, and to developments of aerodromes under the Air Navigation and Transport Act, 1936. There is a long list of amendments but they do not affect light rail. It also details the circumstances in which an EIA may or may not apply to State developments. It also sets out the thresholds beyond which an EIA must be carried out for various types of developments.
Paragraph 10(g) of the First Schedule means that an environmental impact assessment should be sought for “all tramways, elevated or underground railways, suspended lines or similar lines of  a particular type used exclusively or mainly for passenger transport.” This has been specifically provided for in the case of light rail under the Transport (Dublin Light Rail) (No. 2) Bill, 1996. The local Government Planning and Development Regulations, 1994, consolidate several previous sets of regulations and provide the procedures for the submission of the EIS with planning applications where necessary.
Mr. Manning: On a point of order, I wish to draw attention to a most unseemly happening in the House. There is a long standing tradition here that people do not communicate with interest groups from the well of the House. That has been happening all afternoon. It happened before in a previous Seanad and Members opposite were critical. If people want to communicate with interest groups, they should do so outside the House or in the Public Gallery, but not across the bow of the House.
Mr. Belton: We want order in the House.
Mr. Daly: They are getting touchy now that they have lost a vote.
Mrs. A. Doyle: The regulations are, therefore, either not applicable or could lead to confusion. However, I can assure Senators that the EU requirements are being fully applied in light rail. In view of the changes made to the previous section by way of the amendment that has been carried, the Senator's amendments on this would negate the previous section so he is free to press it.
Mr. Norris: I happily withdraw it. I accept what the Leader of the House said. I occasionally talk to people. I make sure that I am sitting down when I am doing it. I do not intend any discourtesy when I am doing that.
I accept what the Minister of State has said about accepting advice from her officials. That is the reason they are there. If they were sat there dumb like  three monkeys — hear no evil, see no evil, speak no evil — we would be wasting their time and the taxpayer's money. I appeal to both sides to continue with the rational debate we had this morning and not lose our tempers. The Minister of State has been a good example of this. She suffered a defeat but she retains her equanimity and her good sense.
Mr. Mooney: I am grateful to the Minister of State for the clarification about this to which she alluded. It did cause concern in the other House and I could not understand why European regulations were being dispensed with. I endorse the comments of Senator Norris in relation to the advice that the Minister of State, or indeed any Minister, would receive from the House. Far be it from me to make any criticism of that. That is a normal and important element of this debate. The Minister of State should receive and make comments on advice when she needs it. I was responding to what I felt was a rather unfair reflection on me as I had asked the question.
Mrs. A. Doyle: I could not hear myself. Four people were talking.
Mr. Mooney: I felt it was diminishing the debate and perhaps holding it up unnecessarily. We are anxious to get on with this. I thank the Minister of State for her reply.
Mrs. A. Doyle: I accept that.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Question proposed: “That section 5, as amended, stand part of the Bill.”
Mr. Daly: On sections 1 and 3, I raised the question of the economic impact being taken into account in the EIS. I had wished to amend section 5 by inserting after “culture” the words “economic and social impact.” I draw the Minister's attention to that.
Mr. Norris: I believe the section is stronger with the amendment. There was, perhaps, less of a gap that might have first appeared between the Minister of State's position and ours. I do not accept that the inclusion of this will lead to so serious and substantial delay that the thing will go out the window. In Athens, for example, there is an underground being put in at the moment — £2 billion, 80 per cent funded by the EU-because of traffic congestion. We need to get cost-benefit analyses. I accept the Minister of State's good graces — and she has been gracious during a fraught debate at times — with regard to the submissions from local communities. I accept that in good part.
Even today there is an advertisement from a British firm of consultants. The way in which it is framed makes it clear that they will not accept submissions directly in detail from areas that are affected. These are commissioned by the Department of Transport, Energy and Communications in consultation with LUAS. I welcome the Minister of State's statement that she will receive these submissions directly and ensure they get to the appropriate place, but it is worrying when one sees the narrowness of the terms. If she and her advisers look at this morning's paper — her advisers, I am sure, know the way in which this is framed — it would cause some of us considerable concern that the terms of reference are so narrowly drawn. It is appropriate in this House that we draw attention to that.
Mrs. A. Doyle: This section sets out the information which must be contained in an environmental impact statement submitted by CIE with its application for a light railway order under section 3. That has been amended this afternoon to state that “a detailed analysis and costing of the main alternatives studied and the detailed reasons for choosing these” must now be  included in the EIS. I indicated my reasons why that was completely unacceptable and while I accept the democratic decision of this House, it will not come as any surprise to the Senators that that will remain for 24 hours until it goes back to the Dáil tomorrow. There will be no alternative but to amend it in the Dáil, which is the procedure in these Houses.
It also precludes us on Report Stage from trying to have minds meet when we were close to having minds meet. This amendment is unacceptable because it will bring a minimum of a two year delay to the process. Whereas we could have sufficient costings to do a comparative analysis of the proposed alternatives, which would, I think, have met all our requirements in this House, this amendment, as worded, cannot be accepted. We will have to overturn it and there will be no change now in the Bill when it finishes in the Dáil tomorrow. That is democracy and we accept. That is how the Seanad and Dáil work. But we must realise that at the end we will be back to where we started today. The Bill and transport planning and management for Dublin are so critical that it does not behove us to play politics with it. There are issues we will fall out on and not agree on that are substantive in terms of what we are discussing. To play politics with these issues is completely unacceptable. I indicated that I was prepared to push the bounds out way beyond what my officials agree. We have been to Cabinet and the Attorney General and anything possible that would strengthen this Bill, particularly for outsiders and those who will be discommoded, is my main concern. I am going to do what I can for them whether it is recommended to me or not, but I will not do anything that will delay and frustrate light rail. That is why I could not concede to the amendment before us. We must understand that. I accept the decision. It will be changed in the morning and we will be back on stream. I, the Government, or anyone having in mind the best interest of traffic management in Dublin could  not accept a two year delay in proceeding.
Mr. Norris: I accept what the Minister of State said. These are the political realities. It will be changed again. However, I would like her to accept this, particularly as she has invoked the name of democracy. We have tried to do business. She recognises that I, as proposer of this amendment, did not call the vote.
Mrs. A. Doyle: I recognise that.
Mr. Norris: She said that she believes in democracy and regrets that it is not possible to come back. It is possible to come back. If she is going to live up to the goodwill she was indicating when I said I was withdrawing the amendment, what could I do? Having said I was withdrawing it, I was placed in a situation, although I believed in the principle, of finding that a vote had been called when the Minister of State appeared to be accepting some of my arguments. I appeal to her to live up to the democratic principles she so clearly evoked and say that we all want a good Bill. In trying to meet that, I said I would withdraw this and come back on Report Stage. That is what I would have preferred; it is not what happened. That is the political reality. However, to just say that it will go back to the Dáil and the Government will do nothing about it — that is it, that is the political game — is a little unfortunate and perhaps not quite as democratic. There is at least a suggestion of playing politics, bloodying the noses of people and getting a black eye back.
I am an Independent. I pay allegiance to no party in this State. I am interested in a question of principle and what I consider, as a Dubliner and an Irishman, the best transport system for this city. I believe the Minister and her officials although on some occasions I am think they are a little wrong-headed — have the same view in mind, so I appeal to her. If she can do something on Report Stage, it would show the kind of magnanimity of which we know she is capable  and which she has shown on numerous occasions in this House.
I have no instrument of coercion left; I have been robbed of it at this point. Being a mere defenceless male, I appeal to the Minister to be chivalrous in my distress, to consider acting on the generous lines which she previously indicated and place this matter, as she has indicated it should be placed, that little bit above party politics. Believe you me, she will be met in this regard by an equal absence of partisanship from the Independent group, which, although this may only last for 24 hours, is crucial to the easy passage of this Bill.
Mr. Dardis: I think Senator Norris jumped the gun when you were about to call me, a Leas-Chathaoirligh, but I was happy to let him speak.
We must reassure the Minister and people in general that it is our genuine intention, as it is the intention of all the Members of the House of whatever side, to improve the legislation. We get it right or wrong in our wisdom, but it is an important point to make and it is one I made in respect of a previous Administration. We must get away from this idea that the Executive knows best. Parliament decides. The Executive may believe it knows best but Parliament decides, and that is what we have done today.
There also seems to be an impression that I indicated I supported the Minister in some respect. I did not. I said quite explicitly at the beginning of my previous intervention on this matter that there was a mindset against alternatives and not just an underground.
The amendment is completely reasonable and I cannot understand the basis for saying that this will delay matters for two years. We are getting into another argument here, which is almost the same as the argument we had about the cost of various options in the absence of concrete information, which is what we want. We want concrete detailed costings and information.
Mrs. A. Doyle: I have the option to look at the wording of this because we will re-amend — if that is the correct expression — the Bill in the Dáil tomorrow. I am satisfied that the wording before us is sufficiently explicit in terms of allowing comparative analysis of alternatives. In particular, for example, if the underground is ruled out primarily on the basis of costing or even if that is one of the reasons it is ruled out, we will need sufficient details on the costing to be able to come to that conclusion. Section 5(1)(e), of the Bill, together with the Semaly report, will give us plenty of information on which to come to a decision with regard to the costings and the different alternatives.
Personally, I do not think there is a need to strengthen this section to achieve that which Senator Norris wants to achieve in his amendment, but I would be of a mind to meet today, if necessary, on this to make it even more explicit by beefing up the words in section 5(1)(e). I do not think it is required and I will not be doing it, not because I do not agree with the points he made but because we have in the Bill, together with the Semaly report which will be published in July, the information he requires. Therefore, we can make comparative analysis in terms of the alternative routes.
If the proposers of the unified proposal were prepared to come up with detailed costing — in other words, if they would take the time and the cost of it — and submit it to the EIS, and if others who had alternatives did the same, it would not involve a protracted length of time. However, if the Senator is asking that the EIS consultants provide the detailed costings, which he was, it will be left to them to do in reality and it costs money. Detailed costing is quite specific. It is not that we can argue later about the degree of detail. If one person's opinion was that it was not sufficiently detailed and it did not met the criteria for detailed costing, there could be a judicial review. Detailed costing is the very specific costings of carrying out a tender along the lines of the proposal.
 The amendment had the effect of making the EIS, that is, the consultant project team, pay for detailed costings for all and any substantial alternatives. I accept the Senator's point that harebrained ideas could be ruled out, but again there is an argument then about who adjudicates on what is a viable alternative. Anyone who makes a proposal thinks theirs is best or they would not be making it, so that is for another argument.
I could not accept the amendment as worded for many reasons, but I feel I do not have to amend the Bill as passed by the Dáil in the other House tomorrow to met the requirements of Senator Norris. This debate has been useful in that it has made all of us state our positions clearly on this matter even though I cannot accept and will be overturning the amendment, which was accepted here, in the Dáil.
Mr. Dardis: The Dáil, not the Minister, will overturn the amendment.
Mrs. A. Doyle: Yes. The Senator is right. I will be proposing an amendment which the Dáil will accept and which will overturn this amendment.
Mr. Norris: It might or might not. None of us knows the answer.
Mrs. A. Doyle: There could be another accident. That is always a possibility but it is not a probability.
Mr. Cassidy: It happened there before.
Mrs. A. Doyle: The real point is that if we want to do justice to light rail and the concerns of the individuals and various groups which will be affected and have strong views such as the unified group and indeed others, we do it without playing politics in this House. We try to meet points as best we can and I am of a view to meet as many as possible of the points made. Indeed, I have proposed to accept several of the amendments which have come to me  and 55 amendments were submitted in 24 hours. We spent, as the Senator knows, until 11.30 p.m. last night with individuals and the officials worked until the small hours trying to sort this out. We want to meet the concerns and tighten the Bill to the point that all these concerns are beyond doubt; but we cannot fly in the face of the Attorney General if he says that we are out of order, as is the case on another amendment. I am not prepared to amend the Bill to thwart the work we all say we want done, which is what the last amendment we included has done. I regret that, but I accept we will sort it out from there.
Mr. Norris: I am pleased with the Minister's general accessibility on these matters, that she is prepared to entertain other views, etc. Responding to her invitation, I am sure that the proposers of the unified proposal will submit as detailed a cost analysis as is possible. In that light, this debate of the last few days, both in this Chamber and in the Minister's office with the Minister, Deputy Lowry, and the Minister of State, Deputy Doyle, and the civil servants involved, has produced a number of practical results. We are now in a much better position to produce these kinds of detailed cost figures because the Minister today provided us with a letter indicating an interest in exploring the underground possibility and welcoming the submission of a detailed costing from the unified proposal. With this letter, we believe it will be possible to go to consortia and business people and get such precise information, which we will submit.
With regard to the two year delay, even supposing there was a storm at sea and some of the happy little political sailors who will be out in Dublin Bay were marooned, did not get back to vote and the amendment managed to survive, the Minister should not worry. I do not believe for a minute that our experts, officials and bureaucrats are so lazy, slow-blooded and stupid that it will take two years to produce this information.  That is a kind of intellectual blackmail. I am sure if it went through it would still be within the target. It could be done.
Mrs. A. Doyle: Detailed costings involved detailed surveying of all the alternatives, including the underground option. We both know what it would take in terms of time and cost to do a complete detailed costing for an underground light rail system for Dublin. There would have to be surveys and excavation of the area between and beside the canals and under old Dublin. Detailed costings take a long time and a great deal of money. The amendment requires the consultants carrying out the EIS for CIE to do that, not the proposers.
Mr. Norris: Thank God the Minister of State is not building the pyramids — we would be left with a hole in the ground.
Mr. Dardis: It would not take any longer than the rest of the EIS.
Mr. Cassidy: As the proposer of the vote I said that Fianna Fáil, with the support of the Progressive Democrats and the Independents, fully supported the call made by one of the Independent Members——
Mr. Manning: Now they know their role.
Mr. Cassidy: ——in the strongest possible terms for a cost benefit analysis. That was my main reason for calling the vote. We are not giving anybody carte blanche where we do not know what the costs will be. I remember a project in Westmeath County Council where we did not have the funds to conduct a cost benefit analysis. We held a competition among interested parties to come up with proposals and cost analyses, and eight groups came on board to prepare that analysis for us. Perhaps we could follow the example of a local authority which had this work done in  six months and at no cost to the council.
Mrs. A. Doyle: I must say, for the sake of accuracy, that that type of costing and what is required by the amendment are two completely different things. The amendment specifically states it requires “a detailed analysis and costing of the main alternatives studied and the detailed reasons for choosing the proposed alternative”. That is quite different.
Mr. Cassidy: It is common sense.
Mrs. A. Doyle: What the Senator is saying is what will be done.
Mr. Cassidy: It is 50 per cent of what I am saying.
Mrs. A. Doyle: No, what the Senator is saying is already provided for in the Bill. The amendment goes way beyond that and would include an in-depth survey of the entire route and all the alternatives above and below the ground. Any surveyor will tell the Senator what that would take in terms of time and money.
Mr. Dardis: The amendment was pressed on the basis that the original legislation said that what was required was an outline of the main alternatives, if any. I do not think anybody on this side of the House would suggest that was going far enough.
Question put and agreed to.
An Leas-Chathaoirleach: Amendments Nos. 17, 23, 24, 25 and 26 are related to amendment No. 15 and all may be discussed together.
Mr. Quinn: I move amendment No. 15:
 In page 7, subsection (1), line 14, to delete “14” and substitute “7”.
The purpose of amendment No. 15 is to shorten the time available to CIE to follow up on its application before it publishes the details. It seems to me that all the details should be available and it makes sense to speed that up. I was very impressed when the Minister of State said she wishes to avoid delay. On that basis, I urge her to accept this amendment.
An Leas-Chathaoirleach: The Senator may discuss his other amendments with amendment No. 15.
Mr. Quinn: I would prefer to wait for the Minister of State's response to amendment No. 15.
Mrs. A. Doyle: They are all related. I am happy to accept amendment No. 15. It will reduce the time by a week, although we added on a couple of years prior to this. However, I am happy to accede to this amendment. It makes reasonable sense and I have no particular difficulty with it.
Mr. Dardis: Senator Quinn scores again.
Mrs. A. Doyle: This means, in effect, that within seven days of the making of the application for a light railway order to the Minister, CIE must place the relevant documents in places easily accessible to the public and serve notice on, and send relevant documents to, the specified people.
Senator Quinn's amendment No. 17 states:
In page 7, subsection (1)(b)(ii), line 26, to delete “one” and substitute “three”.
The provision for a one month period is the minimum period provided for the inspection of the documentation in relation to a light rail order. However, I feel I would be misleading the House to suggest that the period would be  extended to three months, particularly in view of the fact we are up against tight deadlines on the project. This has the obverse effect of the last amendment. I feel there must be some degree of flexibility here and I am not in favour of extending the period involved in this case.
In regard to Senator Quinn's amendments which refer to subsection (2)(a)(ii) on line 38 and subsection (2)(a)(iii) on line 48, I am happy to extend the period involved from three weeks to a month. I will accede to that.
Mr. Quinn: I thank the Minister of State for accepting amendment No. 15. She has, in effect, also accepted the other two amendments by changing the wording from three weeks to four weeks. In light of that, I am happy to withdraw amendment No. 17.
An Leas-Chathaoirleach: We will come to that in due course.
Mr. Quinn: I thought we were discussing them together. I am happy that amendment No. 15 has been accepted.
Amendment agreed to.
An Leas-Chathaoirleach: Amendments Nos. 19, 21 and 46 are related to amendment No. 16 and all may be discussed together.
Mr. Quinn: I move amendment No. 16:
In page 7, between lines 20 and 21, to insert the following new paragraph:
“(b) publish in its entirety on the World Wide Web for a period of six months the information specified in paragraph (a).”
The four amendments are similar and I am happy to refer to all four. The amendments propose that the information about the light rail order should be published on the World Wide Web on the Internet. There are a number of  important reasons for this which I would like to stitch into the record.
It is fast emerging around the world that it is important for Government and business information to go on the Web. Once there, it can be assessed immediately, cheaply and easily by almost anyone around the world. It is particularly important that Ireland keeps fully abreast of this emerging trend. The Web is a tool which places us at the centre of things, regardless of the small size of our country or its peripheral location. We should be pioneers on the Internet rather than followers. In future, whenever we say something should be published in the newspapers we should also specify its publication on the Web. It is the way of the future and we should get used to it.
The second reason is that the information we are talking about here is eminently suitable for publication on the Web. This would greatly improve access to the material and enrich the credibility of the whole consultation process. That credibility can do with all the help it can get.
The third, and probably most important, reason is that this amendment sends a signal to the Department of Transport, Energy and Communications to get its act together; of all Departments, it should be a leader in the use of the World Wide Web. After all, it regulates telecommunications and nobody should be more aware of the significance of the Web than it. However, when the Government announced its presence on the Web a month ago the Department of Transport, Energy and Communications was not one of the Departments which developed a home page. This Department tells us a revolution is going on in telecommunications, yet it does not participate in it.
What I am proposing is fairly easy to do and I am sure the Minister of State will readily accept it. The information will extend to several thousand pages. However, the Web is ideally suited for dealing with that kind of complexity. Every written word is already on a computer  and can be put directly on the Web with the press of a button. All the graphical material, such as maps, can be easily scanned in. Putting the material on the Web will be much easier than printing it.
It is important we write this into the legislation because that is the only way of making sure it happens. If we do not write it in, CIE will find all kinds of reasons to delay it or not to do it. If we write it in, we can be sure it will find a way to do it in time. I think this is an important message to send to the Department and the Government. This is the way of communications in the future and it will be a shame if we do not stitch it into this legislation which is coming from the Department of Transport, Energy and Communications.
Mr. Dardis: I support the amendment and congratulate Senator Quinn for moving it because it is the first occasion where somebody has shown a knowledge of where the information superhighway is leading us. It will become a standard feature of legislation. Where we have used the newspapers in the past to publish material we will use modern communication devices in the future. I am surprised to learn that the Department of Transport, Energy and Communications is not already on the Internet.
Mr. Cassidy: I support the amendment and I congratulate Senator Quinn on his proposals. It is a good idea and is ideally suited to the matter before us. The Internet is making the world of business a village. It only takes the press of a button to engage in business with anybody.
Mrs. A. Doyle: Since my Department also has responsibility for telecommunications I am naturally sympathetic to Senator Quinn's amendment. We should make the best possible use of the WorldWide Web to communicate official information to as wide a population as possible. I accept that it is a  matter of embarrassment that my Department is not doing this already. It should be leading other Departments in this respect. It will accept a slap on the hand from the House today. I will ask for a personal explanation by way of concentrating the Department on the views of Senators as to why it has been remiss to date.
The Government has already taken a substantial initiative in this area by establishing its own Internet site. I am concerned, however, that by creating a statutory obligation in this case we may be going too far too fast. It is not that I do not agree with Senator Quinn's proposals, it is that I am doubtful if putting into legislation and making it statutory is the right way to proceed.
It is important to understand what documents are proposed to be published on the WorldWide Web by way of this amendment. There is to be a lengthy draft light rail order specifying in detail the powers which CIE wishes to obtain. In addition, there is to be a book of reference listing all the details of a large number of the properties affected and a 400 page environmental impact statement, although this could be revised as my speaking note was completed before the previous amendment was accepted.
If there are to be detailed costings and analysis of all the alternatives in the environmental impact statement, a 1,000 page document is likely. In addition, there will be extensive, large scale maps specifying in detail the proposed routes. I am advised it will be a formidable and lengthy process to establish a site and get all this documentation onto it.
I have two concerns. First, the time table for the project is tight and there will be plenty of issues delaying it and making the deadlines hard to meet. I would hate this to be used as one of them. Money will run out by 2000 and we must avoid delays where we can. Second, the inclusion of these amendments as a statutory obligation may create an opportunity for legal challenges. Even a relatively small omission  from the WorldWide Web entry may lead to a legal argument that the statutory requirements were not complied with. I want to avoid this problem at all costs.
However, I will direct CIE to use its best endeavours to put as much as possible of the relevant information on the WorldWide Web and to include details of contact points so that any additional documentation, such as maps, can be accessed in hard copy form.
I hope Senator Quinn will accept my good faith and genuine interest in this. Moving the amendment has been a useful exercise in concentrating our minds on this issue. I urge him to consider withdrawing the amendment as I have difficulty with statutory requirements in this area for the reasons I have outlined.
Mr. Manning: I have sympathy with the objective which Senator Quinn is trying to achieve in his amendments and also with the appropriateness of using a Bill from the Department of Transport, Energy and Communications for that purpose. However, as legislators we should be careful not to load legislation down with what may be regarded as extraneous matter, something which is not central to the purpose of what we are trying to do here today. There is also the important objective of trying to keep legislation simple.
Nevertheless, there is a real issue behind what the Senator proposes and it has become clear in a great number of the speeches thus far on the Bill. Had there been more information at earlier stages of this process, many of the difficulties and misunderstandings which have arisen might not have happened. As a society we are just waking up to the necessity and importance of access to information.
Our entire Civil Service and business culture, and often our personal culture, is often motivated by a desire for secrecy, for keeping things to ourselves, for not letting the public know. A classic example is the way this House and the other House goes about the question of statutory instruments. Things are written  into law and become effective while the only access the public has is when it is told that Statutory Instrument X or Y is being laid on the table of the Oireachtas and published in Irís Oifigiúil. The idea of presenting them to the public does not arise. Last week, Senator Fitzgerald raised the case of airline pilots who will be affected by a statutory instrument the time for consideration of which had expired.
Perhaps we could frame legislation which lays down guidelines within which the Web, among other mass communications aspects of the media, could be used as a means of providing the kind of information to which the Senator refers. I would have difficulty making it part of a specific Bill rather than trying to introduce a general framework.
This would be a good subject for a Private Members' Bill. It would enable us discuss the matter in the wider context of all Departments and to lay down guidelines. I would also take seriously the question raised by the Minister of State whether the process could be delayed in view of statutory obligations imposed in the legislation which may be ignored because of reasons of newness, complexity or whatever.
I ask the Senator to think again about this issue in the light of the Minister of State's remarks. If, over the summer, he considers that it might be a subject for a Private Members' Bill I would make Government time available as early as possible in the new session if it is considered to be appropriate.
Mr. Quinn: I thank the Leader of the House and the Minister of State. My intention was to draw attention to the foot dragging of the Department, especially because it is the Department of Transport, Energy and Communications. Far be it for me to delay the legislation. I understand the Minister of State's concerns about the difficulties of including the amendment in the Bill. It may well be found that, because of an error, the legislation is unworkable.
The Leader has given me direction on how I might make my point in a better  way. We must recognise that the ways of communicating are changing and we must adopt the best. The Web has not been recognised by the Department of Transport, Energy and Communications. The Minister referred to administering a slap on the hand. That was not my intention; it was to encourage it to think in the direction I have outlined. I withdraw my amendment on the basis of what the Minister of State has said and will consider the request by the Leader of the House over the next few months.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach: Amendment No. 17 has already been discussed by amendment No. 15.
Amendment No. 17 not moved.
An Leas-Chathaoirleach: Amendments Nos. 18, 20, 22, 27 and 47 are related and all may be discussed together.
Mr. Quinn: I move amendment No. 18:
In page 7, subparagraph (iv), to delete from “be” in line 39 down to and including “extract” in line 41, and substitute “acquired free of charge by any member of the public on request”.
This brings us back to the problems of communication and consultation. I am anxious to ensure the information is available and that nobody is discouraged from seeking it because there is a charge. I do not understand why a charge is necessary in this case and I ask the Minister to explain the reason for it.
Mrs. A. Doyle: Senator Quinn proposes several amendments to provide documentation to members of the public free of charge. The Bill was specifically amended on Committee Stage in the other House to require that the documents, including the draft light railway  order, the plans for the routes and the environmental impact assessment, must be made available in places specified by the Minister which are easily accessible to the public. The public will have free access to all the documents concerned.
It is envisaged that the route will be divided into approximately ten segments and that at least one suitable place will be identified in each. These will include public libraries, local authority offices and possibly Garda stations and post offices. In the latter instances, however, I am conscious that the full documents will be relatively large volumes and practical difficulties might be involved in inspecting them. Full editions will be available for purchase, although the cost is likely to be at least £30 for all the documents for the entire route. Relevant extracts of interest to people along specific segments of the route will be available at the cost of photocopying them.
Arrangements will also be made to publish non-technical summaries of the main documents, including those relating to the environmental impact assessment. It is anticipated that many thousands of these will be available free of charge. People individually affected by the scheme will receive the relevant papers directly at no cost. They will not have to go through all the volumes to determine whether there is anything of relevance to them in the many pages. If they are directly affected, they will be directly informed. Section 6(1) requires that when an application for a light railway order is made, relevant extracts from all the documents must be served on every occupier and owner of land referred to in the draft order. Furthermore, if an order is made, section 11(b) ensures those involved will be directly served with the relevant documents. There will be no charge in these instances.
Adequate provisions are included in the Bill to ensure people affected by the project have access to all the relevant documentation. I am not, therefore, in a position to accept the amendments.  Although I accept the Senator's point, the sentiments of the amendments have been met in different parts of the Bill.
Mr. Quinn: The purpose of the amendments was to overcome the crisis which has occurred in terms of people feeling there has been insufficient consultation. They are an effort to ensure the process was open to the public and nobody was restrained from getting information by cost factors. The public would not have abused it but, given the Minister's comments that it involves such large documents, it is not my intention that such expensive documents should be available at no cost. I usually insist on a charge but the purpose of the amendments was to make up a shortfall in the area of consultation. If the information is readily accessible and available and specific parts may be photocopied, I will not press the matter.
Amendment, by leave, withdrawn.
Amendments Nos. 19 and 20 not moved.
Section 6, as amended, agreed to.
Amendments Nos. 21 and 22 not moved.
Government amendment No. 23:
In page 8, subsection (2)(a)(ii), line 38, to delete “3” and substitute “4”.
Amendment agreed to.
Amendment No. 24 not moved.
Government amendment No. 25:
In page 8, subsection (2)(a)(iii), line 48, to delete “3” and substitute “4”.
Amendment agreed to.
Amendments Nos. 26 and 27 not moved.
 Section 7, as amended, agreed to.
An Leas-Chathaoirleach: Amendments Nos. 28, 39 and 45 are related and may be discussed together.
Mr. Quinn: I move amendment No. 28:
In page 9, between lines 13 and 14, to insert the following new paragraph:
“(b) the terms of reference of the inquiry specified in paragraph (a) shall be as follows:—
(i) to consider the desirability in the public interest of the draft Light Rail Order, having regard to:
(I) the application;
(II) the draft order, plan, book of reference to the plan and the environmental impact statement which accompanied the application;
(III) any submission duly made to the Minister under section 6(3) or 7(4) and not withdrawn;
(IV) any submission duly made to the Minister by a planning authority referred to in section 6(1)(c);
(V) any additional information furnished to the Minister under section 7.
(ii) to consider all appropriate alternative approaches to alleviating traffic congestion to those outlined in the draft Light Rail Order;
(iii) to give, in particular, full consideration to the possibility of constructing part of the proposed Light Rail system underground;
(iv) to take fully into account, in evaluating alternative approaches to those outlined in the Light Rail Order, the costs likely to be incurred by parties other than the  Board, in consequence of the disruption caused by the construction of the proposed scheme.”
The amendment relates to the serious concern expressed by many people, with which I agree, that there is a bias against the possibility of underground transportation. Terms of reference are required for the establishment of a public inquiry. If terms of references are not included in the Bill, I have great difficulty understanding how a solution will be found.
The amendment seeks to ensure the Minister is protected from a criticism that there are two public inquiries. A public inquiry will take place and, after it, the information will be handed to the Minister who must take it into account in addition to many other matters. The only solution to this problem is to detail the terms of reference of the public inquiry and the amendment is an effort to do so. I ask the Minister to explain why the items contained in my amendment have not been included in amendment No. 39. If the Bill is to succeed, the Minister for Transport, Energy and Communications must be seen to have acted in a manner which did not show any bias. The public inquiry will be most important in that regard.
The independence of the inquiry and its terms of reference are important. If the terms of reference are not included in the Bill, it is likely the outcome will be criticised on the grounds that it did not examine precisely the correct terms needed. The amendment is self-evident and I will not mention the detail. I ask the Minister to explain why she has difficulty accepting my amendment and the reason she put down an alternative amendment.
Mrs. A Doyle: I understand the reasons for the amendment put forward by Senator Quinn. I hope to respond to his concerns, first, by explaining the rationale behind the provisions of the Bill as drafted and, second, by suggesting  substantive and important Government amendments to sections 8 and 9.
The Bill as drafted makes the Minister the deciding authority. The role of an inspector is to hold a public inquiry and to prepare a report for the Minister. The inspector may include in his or her report any recommendations he or she considers appropriate having regard to the inquiry. In other words, the inspector hears and sifts all the evidence presented to the inquiry, summarises and analyses it for the Minister and then makes any recommendations he or she thinks fit. The inspector is not the deciding authority; that is the Minister's role. This is the position across a whole body of legislation governing the compulsory acquisition of land and the authorisation of major infrastructural projects. It is entirely appropriate that powers of this kind be exercised by a Minister with a political mandate from the people and who is democratically accountable to the people. To do otherwise would simply make the Minister a rubber stamp and not a real decision maker.
If the Minster is to be the deciding authority it is essential that he or she should have access to all appropriate information when making a decision on the CIÉ application for a light rail order. That information has to include the CIÉ application documents, the environmental impact statement and the written submissions made to the Minister by members of the public and local planning authorities. Most importantly, it includes the inspector's report on the public inquiry which draws together all the evidence and identifies the key issues requiring consideration. The House cannot expect the Minister to reach a decision on a complex matter such as this without an adequate opportunity to review all the evidence.
I do, however, propose to respond in a substantial way to the Senators' concerns. The inspector will have clear terms of reference for the public inquiry. I have responded to Senator Quinn's amendment on this subject by putting down my own amendment, No.  39, which clearly sets out the inspectorate's terms of reference. The inspector will be obliged to consider all the documentation lodged by CIÉ when it makes its application to the Minister. The inspector will have to consider all oral and written submissions made to the inquiry. He or she will have to consider any alternatives proposed and submitted to the inquiry. These alternatives need not be confined to the underground option. The inspector will also have to consider the impact of the proposed light railway on local communities. He or she will also be able to consider any appropriate matter. This latter provision gives the inspector an important degree of discretion to look at matters other than those already specified.
The legislation already provides in section 8 (1) (c) that the inspector's report must be published. I have prepared an amendment which requires that it must be published without delay after submission to the Minister, which is important. Amendment 46 (a) will require the Minister to lay a statement before both Houses of the Oireachtas where his or her decision to make a light railway order involves a substantial material departure from the recommendations contained in the inspector's report on the inquiry. This statement will give the reasons for the departure.
In summary, therefore, the inspector's report will be published, people will be able to see clearly what his or her recommendations are and they will be able to compare them with the Minister's eventual decision. If the Minister's decision to grant a light railway order differs from the inspector's recommendations, he or she will have to submit a statement to both the Dáil and the Seanad explaining the reasons for this. I believe that my proposals are a substantive response to the issue raised by the Senator while ensuring that the Minister's position as the ultimate decision making authority is respected.
Mr. Quinn: I have listened very carefully to the Minister. Two aspects of my  amendment have not been included in the Minister's amendment. Let me touch on amendment No. 28 (b) (iii), which states “to give in particular full consideration to the possibility of constructing part of the proposed light rail system underground” for a moment. My concern and that which has been expressed quite clearly in this debate is that the underground option has not been given the attention it deserves because of a bias against it. That is why I ask for it to be included. The Minister has answered that. I know she said that it is not excluded, but that was my problem all along. I know it was not excluded, but we wish to expressly include it. The Minister has covered that in her answer and I am willing to accept that.
The second issue that is excluded on my amendment but included in the Minister's is that the inspector must, in evaluating alternative approaches to those outlined in the light rail order, take fully into account the costs likely to be incurred by parties other than the board in consequence of the disruption caused by the construction of a proposed scheme. I have a real problem with this, and it goes back to the whole area of costing. Where we have heard of costings up to now they have included the cost of tunnelling as against the cost of using an on-street system. Those two items seem to cover the construction costs of both systems but a huge social cost is involved. There is a huge business cost in economic terms beyond that. I do not know if that is likely to be taken into account unless we stitch it in here. That was why I asked for it to be stitched into the terms of reference of the public inquiry. The Minister has not reassured me in this regard and I would like her to do so before I am happy to accept her amendment.
Mrs. A. Doyle: I am advised in relation to the latter point raised by Senator Quinn that individuals and groups will be able to argue those very points at the public inquiry. Provision has been made for these to be taken  into account there. I think the Senator feels I met him reasonably enough on the first point of admission. I am advised that the second point is taken care of too, that provision is already made for it. Perhaps the Senator could elaborate his concerns in that area.
Mr. Quinn: We have heard over the past year that the underground is not being given the priority that people such as those who favour the unified proposal and others believe it should be given. When we pushed this we were told that there is a huge gap in the cost of building a tunnel and putting the rail overground. I am convinced that the cost to be counted is not just the construction cost, but the huge cost in years to come of its impact on the way of life in the city. The impact it will have in terms of closing roads and its impact on the businesses along the route of the light rail must be taken into account. I am concerned that the costs that will be taken into account will not include that continuous disruption over time.
If we build the light rail system overground and we only take into account the actual building cost, it will look as if it costs a lot less than the cost of putting that system underground. However, we must take into account that for years to come certain streets will not be open to the public, access will be difficult for businesses on the light rail system, homes will have to be knocked down, that much disruption in social and business terms will be caused and that the whole look of the city will be changed. We have to take those costs into account. I understand that the Minister says this case can be made to the inspector, but I would like the inspector to be obliged to take this into account. That is why I would have liked to see it in the terms of reference. I urge the Minister to include it in the terms of reference.
Mrs. A. Doyle: I contend that my amendment, No. 39 (2) (v), meets the Senator's requirement that the inspector  must consider the impact of the proposed light railway and the subject of the application on local communities. That is not just construction costs but includes all kinds of costs. All impact is involved there; it is not limited in any way. I hope that meets the Senator's requirement. I had it specifically inserted to meet this point.
Mr. Quinn: I am not convinced, but the Minister has gone a long way and on that basis I will accept her point. Amendment No. 39 is written in different language from mine, but it seems to go a long way towards meeting my requirements.
Amendment, by leave, withdrawn.
Mr. Norris: I move amendment No. 29:
In page 9, subsection (1) (b), line 14, to delete “after consultation with” and substitute “with the approval of”.
As it stands, section 8(1)(b) states:
The Minister shall, after consultation with An Bord Pleanála, appoint a person to be an inspector to hold the inquiry referred to in subsection (1).
We believe the term “after consultation with” is not strong enough and would prefer to include the wording “with the approval of”. This would not tie the Minister's hands to any great extent and would require that the person involved should obtain the approval of An Bord Pleanála. If An Bord Pleanála is being consulted, it would be better that someone was not appointed as an inspector who did not meet with the approval of the board. Otherwise, what is the point in consulting An Bord Pleanála? It seems to be a logical step.
Mrs. A. Doyle: There has been much discussion on this point and I understand the concerns relating to it. However, since its original publication the Bill was amended a number of times to strengthen the independence of the  inspectors. Subsection (8) was added to specifically provide that an inspector appointed under this section would be independent in the performance of his or her functions. A further amendment provided that the inspector's report would be published promptly. The powers of the inspector have also been substantially increased to give him or her the power to summon witnesses and to require the production of documents. These measures have been included to strengthen the Bill to date.
In relation to the inspector's appointment, the Bill has been amended to provide that this can only be done by the Minister after consultation with An Bord Pleanála. In light of the further questions raised on Second Stage, I consulted with the Attorney General on this matter. He stated that:
The Minister, as an officeholder of constitutional status, should not expect, in the exercise of executive power, to be subject to control by a body which, however important, is merely a creature of Statute. The proposed amendment would reverse the customary order in these matters in a way that would be quite anomalous and out of harmony with the established practised relationship which applies to matters of this kind.
For my own part I repeat my assurance that in the case of the inquiry to be held in the coming months, the inspector will not be an officer of the Department of Transport, Energy and Communications. I regret that I cannot go further towards meeting the Senators' concerns in this area. I cannot go against the advice of the Attorney General in this matter. I am constrained and must accept the advice of those qualified to provide it.
Mr. Norris: That is a reasonable explanation and I am prepared to withdraw the amendment. I look forward with great interest to a further amendment which deals with the person to be appointed as inspector. I hope the Minister  will be able to meet our concerns on that matter.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach: Amendments Nos. 30 and 44 are related and may be discussed together by agreement. Is that agreed? Agreed.
Mr. Cassidy: I move amendment No. 30:
In page 9, subsection (1) (b), line 15, after “Pleanála” to insert “and the consultative council for the relevant local area established under section 9”.
Amendment No. 44, subsection (7) states:
That the Minister should be required to establish a Consultative Council in the Kilmainham/Arran Quay area prior to issuing any Light Railway Order for that particular line.
The amendment speaks for itself. Many interested groups and parties, two of which are named in amendment No. 44, have expressed their concerns that there should be a full consultative process.
Mr. Mooney: I second the amendment and concur with Senator Cassidy's comments. Amendments Nos. 30 and 44 are central to our approach to the entire consultative process. I cannot do much better than quote from a document prepared by the Arran Quay Terrace and Coke Lane Residents' Association, which, I suggest, also articulates the view of the residents of the Kilmainham/Mount Brown area. Both sets of residents have expressed concern about the process.
In his book Your Guide to Town Planning, Patrick Shaffrey stated that:
The importance of the role of the public in planning was upheld by the Supreme Court and it identified the important parties in the planning process — for example, the local authorities,  developers and the general public.
Mr. Shaffrey went on to state that:
For the public role to be meaningful and positive, to anticipate and influence developments rather than react to them, requires that the main objectives of the planning legislation are clearly understood and that ordinary people can perceive their role in the process.
The ongoing consultation process was described by the Minister of State as a process by which local communities are “entitled to voice their concerns”. She also stated that “the people of Dublin are fully involved in the development of this new mode of transport” and that the process would “ensure everyone affected by the project was aware of exactly what was going on.”
According to the document, The Human Cost of the LRT, these groups state that they would not be lobbying on Committee Stage if they did not feel they were fully involved in the project if they did not feel they were fully aware of what was going on. Their experience to date has left them disappointed, dejected, hurt and frustrated at what is a misnomer consultation process. They allege that they were not informed that plans existed to demolish their homes. They also allege that they were not consulted but were forced to seek out the information. On two occasions they were forced to ask public representatives to compel the CIE/LUAS design team to meet with them just to provide information about the plans. They believe they were not allowed play a meaningful and positive role in the development of the transport plan and that they have been completely excluded by the mere fact of not having been considered.
The Arran Quay Terrace and Coke Lane Residents' Association state that the Minister of State also referred to the DTI report which stated that “successful implementation of the strategy  depends on ongoing consultation and effective two-way communication of importance to those concerned.”. They also state that the proposal to demolish their houses, neighbourhood and community is an issue of importance and demands more than having a promotional leaflet dropped through their letterboxes proclaiming that “the tram is coming your way.”. They also object to the use of a promotional video which is obtainable from appropriate outlets. Both mediums are somewhat vague regarding the details of the proposed route. The association alleges, and Members on this side of the House must agree, that this is not what the Minister of State described as “a project being developed on the basis of a policy of openness”, or what they believed would be a process to explain the light rail system and its benefits.
The amendments under discussion were tabled in that context. I appreciate that the Minister of State has been open, accessible and emphasised on several occasions that the consultation process will be real and meaningful. I accept her good faith and I have no doubt that she means what she says. I found it extremely difficult to take that on board on Second Stage, in the context of the amendments we tabled and in discussions we had with honest, decent people who believe that a catastrophe of monumental proportions will be visited upon them and their businesses in the areas of Kilmainham and Arran Quay. Those concerns must be addressed. It was in that context that we tabled an amendment requesting that some form of consultative council be established to allow these people to make submissions, people who fully believe in and are committed to the democratic process, of which Members are a part, and who have lauded the work of public representatives of all parties. I believe they deserve better treatment than they allege they received. I would be grateful if the Minister of State would go some way toward reassuring those communities that they will not enter the new millennium bereft  of the heritage and the legacy which has been left by previous generations. The integrity of communities in this city, which are as important as those elsewhere, should be maintained like those in my area, which would be considered to be more community orientated than those in cities.
Mrs. A. Doyle: The essential point is the need to ensure adequate local consultation with which none of us disagrees. We have all been open and critical of aspects of consultation since last December. I have made my views strongly known in this regard. I agree it is critical to the success of the light rail project that we have adequate consultation, which must be well run and professionally managed.
If there have been, or there have been perceived to have been, shortcomings in the consultative process and they should be remedied. I have not been convinced that legislation is the way to do this. I want to avoid the process becoming extremely bureaucratic and legalistic. That this would become the case has been confirmed by the legal advice on providing for the consultation stage in legislation. The process quickly becomes entangled in requirements for specific time limits and precise definitions, which is unavoidable in legislation. They are unwelcome in an open consultation process. That is why the early consultation process has not been provided for in detail in the legislation.
The points made about consultation in the course of debates on this Bill have been well made. The absolute necessity for consultation was stressed by the Minister, Deputy Lowry, when he launched the process last December. He said he wanted and would insist that the people of Dublin be fully involved in the development of this new mode of transport. He asked elected representatives to contribute to the debate and to represent the views of their constituents. They have done so. Where they have reported problems, I can honestly say that every effort has been made to respond to them.
 It is particularly encouraging to note that local residents, businesses and other interests have come together to form umbrella groups to respond to these proposals. These are the type of groups which this amendment seeks to create through legislation. They should be encouraged, but not by trying to provide for them in legislation.
The legislation is also a two stage process. Informal consultation which commenced last December will continue at least until September next. This will be followed by the formal stage involving the publication of documents and the making of submissions. Anyone not satisfied with the first stage has ample opportunity to make their case at the second stage. They can do so at the public inquiry or through direct submission to the Minister. If, after all that, a problem remains, they have recourse to the courts.
It is in everyone's interest to ensure that the first stage, the consultation process, is a well run two way process. This way problems at the formal stage and the difficulties of legal challenge can be avoided. It is important to put the problems into perspective. Over a proposed route of more than 20 kilometres, difficulties have arisen only on relatively short sections. Efforts have been concentrated on options or alternatives for these sections. At the same time groups which were not included in the original routes have been formed to campaign to have the light rail brought to their areas; there is support for light rail and communities are calling for it to be brought to their areas. That support must be harnessed to ensure the best possible project is developed.
If we can avoid an area which is vehemently opposed to light rail and take it along a different route while maintaining the basic line, every effort will be made to do so. We are not in the business of annoying people if we can avoid it. Each alternative will be fully examined and the final route will be decided minimising the impact on people and communities.
Since the original Bill was introduced,  there have been many amendments to tighten up the consultation process to make it easier for individuals and communities. Contact names and numbers are now available for the LRT team. Local liaison officers have been named and telephone numbers are available so that individuals and communities may contact them. An office has been set up on O'Connell Street and the alternative routes and reports will be published. I have requested that any complaints about non-compliance with the procedures for consultation which have been laid down be brought to the notice of the Minister or, indeed, myself and I will forward them to him. We will do anything we can to make the initial consultation process as full, useful and productive as possible.
Another formal consultation process, that is, to put in statute the consultative bodies which would be the case if I accepted the amendment, would not help. In fact, the extra bureaucracy would hinder the natural flow, the two way process which should exist. If the process is not operating properly, I would like to know so it can be corrected. I agree with what Senator Mooney is trying to achieve, that is, the best possible consultation process for the individuals and communities concerned, but I do not agree that what he suggests is the way to do it. In fact, I believe it will tighten it down too bureaucratically and it will result in deadlines, time scales and other requirements which would be unhelpful in accomplishing what we want to achieve. A formal consultation process is contained in the Bill, that is, the public inquiry.
As regards the informal process which started last December and which will run until at least September, it would be more useful if it is properly implemented and an open and honest effort is made by all concerned to consult, listen and take on board cases made rather than tying it into legislation.
Mr. Mooney: I am grateful for the Minister's reply. We are at one in this regard. I do not have a monopoly on wisdom, concern or care for these communities anymore than the Minister. I get angry when I hear people say they do not have access to Big Brother and when there is a feeling of powerlessness and ineffectiveness. As regards the public inquiry, is the Minister happy that the legislation will oblige witnesses to attend?
I am not sure if this matter is outside the scope of the Bill but I would like to hear the Minister's response. The communities with which we are dealing have come together voluntarily. The Minister already indicated that she is encouraging other communities to do the same to ensure their rights are protected. However, these communities have scarce resources. Will the Minister be able to respond to a request for funding so that communities would be able to obtain professional and technical advice to guarantee equality of representation at the public inquiry? We must remember they will be faced with a formidable array of technical and other expertise and they will be doing their best in these circumstances.
What facilities could be provided for individuals and/or communities to effectively put their case? My interpretation of the submissions made by the communities in the two areas to which we referred is that they are not against the concept of light rail. However, they are concerned that, when the light rail system is built, it will not demolish or extinguish their communities. They have put forward alternatives which they believe would enhance the city transportation initiative which has been the subject of debate for some years. Without prolonging the debate, I would be grateful if the Minister would respond to those points.
Mr. Dardis: It is hardly surprising that there is an effort to have the consultative process cemented into the Bill since the Minister accepted some of the criticisms made about earlier “consultation”.  It has led to a feeling that there will not be consultation and that commitments made are an empty formula. I received a document this week which referred to consultation and LUAS. I read it item by item and it referred to the distribution of leaflets, videos and so forth. Information is not consultation and the Minister of State has accepted that point. In that context it is not surprising that this amendment is tabled. The Minister of State said that every alternative will be fully examined and that leads me to wonder why there was a problem in accepting amendment No. 11.
Mrs. A. Doyle: Detailed costings are not the same. The Senator is being disingenuous.
Mr. Dardis: The amendments say the same thing.
Mrs. A. Doyle: If they did, I could have accepted the amendment graciously. They do not provide for the same thing.
Senator Mooney asked about the power of the inspector to compel witnesses and documents. The inspectors have those powers. There was no such provision in the Bill as drafted but, after discussion on Committee Stage in the Dáil, I amended the Bill to include compellability of documents and witnesses by the inspector at the public inquiry. This is a new departure for public inquiries as that power did not exist previously. However, it is extremely important and we will publish the findings. The inspector can award costs to witnesses who are compelled to attend where, for example, people might have to lose a few days' work to give evidence and so forth.
The Bill has also been amended to include a provision that already applies in public inquiries run by the Department of the Environment. The Minister may retrospectively award some costs to local communities that have incurred expenses in employing technical advice to make their case. There was no such  provision before I amended the Bill and my amendment reflects the practice in public inquiries run by the Department of the Environment.
I do not want to give the impression that all communities employing solicitors, engineers and so forth to make technical cases will receive full repayment of their costs. They will not. There is a similar provision in other areas of law and I thought it should be included in this legislation. I would not like to see a terrace inhabited by old age pensioners precluded from making a technically correct case to the public inquiry because they could not afford it. That is the type of case in which I envisage the Minister being able to award costs retrospectively. Such payments will be retrospective; no money will be available up front to encourage groups to make as many appeals as possible to the inquiry. In bona fide cases where people are not in a position to pay costs the Minister may award some or all of their costs, as he sees fit. I insisted that this provision be included. It led to some squealing but, in the interest of equity, it is the minimum we could do. It still will not allow some communities to fight like with like. In all honesty, CIE and the State have the resources to employ the best, but at least communities will be able to make a technically competent case to represent their views. That is important.
Mr. Mooney: I am grateful to the Minister. She has gone a considerable distance to reassure communities that may have felt somewhat powerless in the face of State institutions. In that context and in a spirit of conciliation, I accept the Minister's assurances.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendments Nos. 32 and 33 are related to amendment No. 31 and the three amendments will be discussed together.
Mr. Norris: I move amendment No. 31:
 In page 9, subsection (1) (b), line 15, to delete “person” and substitute “member of the Judiciary”.
In amendment No. 33 the Minister of State has met the argument we made and her amendment is satisfactory with regard to the qualifications of the person. With regard to amendment No. 31, I am anxious that the status of the inspector should be assured. Whatever about the public's view of public representatives — most of us are held in a contempt which I believe is misjudged — the Judiciary is held is extremely high esteem. Our judges are noted for their independence of mind and a number of them, including somebody appointed to a senior post in the Judiciary in the last couple of days, have expertise in the planning area which would be extremely useful in this context. Many Members on this side of the House believe that the appointment of a member of the Judiciary would greatly strengthen the credibility of the operation and would make clear the commitment of the Government to independence and professional standards throughout the inquiry. I hope the Minister of State will accept this amendment.
I do not intend to address amendment No. 32 because my distinguished colleague, Senator O'Toole, can speak for himself. However, I seconded his amendment because it is important that in these technical matters the person in the pivotal role of making decisions and sifting through evidence should have competence in some of the relevant areas. The Minister of State has answered that concern to my satisfaction in the Government's amendment but I will leave it to Senator O'Toole to comment further. I agree with the sentiments that motivated him. However, I would still like to see a member of the Judiciary established as the inspector.
Mr. Manning: I am in diametric opposition to Senator Norris on this amendment. I said earlier, in response to Senator Quinn, that legislation should  as far as possible be simple and not contain extraneous matter. However, there should also be consistency in legislation passed by this House.
Everybody who has spoken on the crime and justice issue in recent days and weeks has called for the appointment of more judges to clear the backlog of cases in a wide range of areas. This amendment seeks to take an experienced judge from the limited number of judges in the Judiciary and have him or her devote a considerable amount of time to a case like this. Consider what is already happening in the courts. The Bula case, for example, is extremely detailed and involves issues that are not too far removed from the issues that will be discussed at a public inqury. That case has consumed the time of one of our most experienced and effective judges for about two years. Judge Lynch has now been appointed to the Supreme Court but cannot take up his duties in that court until the Bula case is completed.
Not every judge is well qualified to deal with the issues involved in this section. Some judges are well qualified in family law, criminal law and so forth and there is probably only a handful of judges who have the relevant expertise, without having to research the subject, to deal with these cases in the way Senator Norris intends. This amendment is inconsistent with our objectives in a range of other legislation in which we are calling for more judges to deal with what people see as the urgent priorities of our society at this time. The status and independence which the Senator rightly wishes to be vested in this person could be achieved by appointing somebody who is qualified and independent even if he or she is not a judge.
Mr. Norris: The Senator made a good case and I accept it.
Mr. O'Toole: Both amendments were put down because Senator Norris and I could not agree on the best approach to the subject. If people on the street were  asked who should be appointed they would suggest a member of the Judiciary. All the community groups have suggested a member of the Judiciary. I tend towards Senator Manning's position. It was for that reason that I put in what I considered to be essential and desirable criteria for the person who would get the job. If I was appointing somebody in my office to a position I would find out the essential and desirable criteria and try to find the best candidates.
I made this point firmly on Second Stage and the Minister came back with amendment No. 33. Can the Minister consider this amendment in the context of the Garda Commissioner's comments this morning? We had a long discussion on whether or not somebody would have a certain sense of trust or ability in a civil servant to play a particular role. The Garda Commissioner thought the examination of the force might be done better by somebody who was not a civil servant.
We had a parallel debate about an appointment under the Refugee Bill a few weeks ago. Where the appointed person should come from and his independence, from the Department of Justice in that case, became the key issues of discussion. Amendment No. 33 says that “The person appointed under paragraph (b) shall be a person who in the opinion of the Minister has satisfactory experience and competence in one or more of the following areas: transportation planning, civil engineering, land use planning, [I understand this also includes town planning] architecture, law, finance, environmental matters...” These are all important and attractive points. The Minister also put in “or administration” at the end of the amendment, which to me means “or a civil servant”. I know it is not meant to do that but it allows for it. It would be best if that was not there.
I agree with Senator Manning's argument, and Senator Norris also indicated this. There is a good argument that the person being appointed should not be a member of the Judiciary. However,  there is also a good argument in favour of the Minister's points in amendment No. 33, but the one issue which is not dealt with in this amendment is independence. Can the Minister accept an amendment to this amendment? I would be happy to accept amendment No. 33 if the final words of amendment No. 32 “not to be attached to any Department of Government.” were added to it. That would deal with the whole issue. It would allow the Minister, for instance, to consider people involved in An Bord Pleanála, town planning or local government for the position. It allows for a wider choice of people and gives more confidence.
This is an issue of trust and confidence. I hate using the words “openness” and “accountability”— they are trite and have been used to death. However, they are important in the sense of people seeing and having trust and confidence in the matter. This is not in any sense a vote of no confidence in public or civil servants — I spend my life defending them — but the reverse. This is a question of perception and where it becomes the reality for people. People want to see a distancing between the work of the Department and the inquiry so it is seen to be public, open and independent.
References to this person acting independently are mentioned elsewhere in the Bill. It is a small movement from that to saying that we should move away from the Judiciary and from the point Senator Manning made because it is also restrictive, that we should make an amendment to an amendment and add the words “and shall not be attached to any Department of Government.”. If we came to a consensus, it could be dealt with in that way. That would meet everybody's point of view. I would like to hear the Minister's response to that fair suggestion. If she does not, the Minister is depriving us of the support to which we are entitled on this occasion. This is a fair and open approach to the matter.
Mr. Wright: Like the two other speakers, I agree with the balance of Senator Manning's contribution. The Minister is appointing an individual to this position in the coming week. He is one of many people with a legal mind and an expert view on planning. The Minister has tried, since the first drafting of this Bill, to bring the Government's view to all the communities involved that she is keen to have more consultation. Amending this amendment in the way suggested by Senator O'Toole would do more for the Minister with those lobbyists than anything else and she should agree to it. The Minister stated that she has given a commitment that the person appointed will not come from the Department of Transport, Energy and Communications — it is more likely he will be from the Department for the Environment.
Mr. Norris: Exactly.
Mr. Wright: That is the issue at stake here. Senator O'Toole's suggestion would very much be in the interest of the Bill and in trying to convince the communities involved that the Minister and the Government, through its agencies, are genuinely trying to ensure that fair play will prevail. There are people with excellent expertise outside of Departments who deal with planning matters every day. The individual being considered is one of half a dozen people who are recognised as being experts and would fully qualify under all the headings of amendment No. 33. For these reasons, I urge the Minister to accept this amended amendment.
Mr. Magner: On Senator Norris' amendment, not alone do I want to support the Leader of the House on his remarks about the Judiciary and the whole impetus in appointing judges, but I am against it in principle. As much as I applaud the independence, integrity and honesty of the Judiciary, it is not the only sector in Irish public life that have those qualities. I reject that out of hand. The public service's record is comparable  with that of the Judiciary. It is unthinkable that the Government would appoint somebody who did not meet the criteria of competence, knowledge and integrity specified. It is playing with straws to imply that one would appoint somebody who is incompetent, dishonest and has no knowledge of the process.
Mr. Norris: I do not think integrity was mentioned in the amendment.
Mr. Dardis: I am beginning to feel schizophrenic, Sir. I agree that it is not required that it should be a member of the Judiciary and, on balance, it would be better that it was not.
Mr. Magner: Or even Trinity.
Mr. Dardis: That is not to say that somebody from the Judiciary could not do the job well, but I can think of some of them who might not. Having said that, there is a valid point in respect of the way in which public confidence has been lost — it comes back to the consultation process, etc. — and there is a need to restore it. One of the ways in which public confidence in the process can be restored is to ensure that the person appointed is completely impartial. For that reason I also urge the Minister to seriously examine Senator O'Toole's suggestion and include it on Report Stage. It should be the case that the person appointed should not be from any Department. If it is not the Department of Transport, Energy and Communications it will be the Department of the Environment.
I also have a reservation in respect of the Minister's amendment. She is trying to improve the position and on balance the amendment does so, but it provides that the person appointed shall have “satisfactory experience and competence in one or more of the following areas”, which include architecture and law. It would not necessarily be good that the person conducting the inquiry would have such a narrow focus of competence.
 To return to the point about the Judiciary, I have attended many public inquiries, all of which were conducted extremely well by those who ran them. I did not always agree with the conclusions reached or the decision made by a Minister on foot of the inquiry, but everyone who attended the inquiries was given a hearing and they were conducted fairly and openly. There are people within Government Departments who can conduct inquiries but for the purposes of this exercise it would be preferable that it be someone from outside a Government Department who should have competence not solely in architecture or law.
Mr. Manning: We are closer to agreement than may appear. I do not suggest that the inspector should not be a member of the Judiciary. Senator Wright mentioned the newly appointed judge, Mr. Justice Thomas Smith, who would be a splendid person to chair such an inquiry as he has all the relevant qualities, although one might not wish it on him. The person chosen should not be confined.
A limited number of people could do this job well. There are few who have the requisite qualifications and qualities, which include fair play, detachment, wisdom, technical knowledge, a capacity to handle people and to empathise with those who may not be used to the ambience, atmosphere and awe associated with a public inquiry. My problem with Senator O'Toole's amendment is that, unintentionally, it is almost gratuitously offensive to people in the public service. There is an implication that no one in any Government Department has these requisite qualities.
I do not like proposing amendments while on my feet, especially as I have not consulted with the Minister, who has now put her head in her hands in anticipation of what is to come. The person we want needs Ombudsman-like qualities. When we debated the establishment of the Office of the Ombudsman, there was a convention that there  would be consultation between Government and Opposition as to the person's suitability, because if the Ombudsman did not have the confidence of all parties he would not generate the trust necessary for the job.
Perhaps we could have a discussion between now and Report Stage about removing the absolute ban on the person being from a Government Department. In this case we have an assurance from the Minister that the inspector will not be from the Department of Transport, Energy and Communications and my strong view is that he or she should not be from any Government Department. Perhaps the Bill could include a provision that the Government of the day would consult the Opposition parties on the suitability of the person chosen. I suspect that when the person is named, there will be general agreement that he or she is either right or wrong. It will have to be someone like Dr. Ken Whitaker or Mr. Michael Mills, with the relevant qualifications and qualities, who will instil a sense of both confidence and fair play. I hope it is possible to include a provision for consultation, in an attempt to meet all our objectives on this issue.
Mrs. A. Doyle: The provisions in this Bill have been changed from those in the first Transport (Dublin Light Rail) Bill to meet the concerns expressed about the independence of the inspector holding the public inquiry. It has been specifically provided that the appointment of the inspector will only be made by the Minister after consultation with An Bord Pleanála. Further, a new subsection (5) was added to specify that an inspector appointed under this section shall be independent in the performance of his or her function. This Bill has therefore been considerably tightened up since its initial publication.
I have listened carefully to the points made in support of the Opposition amendments Nos. 31 and 32 but have not yet been persuaded that the appointment of an inspector should be further limited by specifying that he or  she should either be a member of the Judiciary or not attached to any Government Department. I have particular difficulties with those limitations. A wide range of inquiries is being held at present, including those related to compulsory purchase orders and major motorway schemes, where an inspector is not a judge.
Further, the matter of whether the inspector was or was not attached to a Government Department has never been an issue of difficulty or concern and has never caused a problem in a public inquiry, although other matters have. As a Minister of State attached to the Department of the Taoiseach and the Department of Finance with specific responsibility for public sector renewal and the Strategic Management Initiative, I could not stand over any amendment which specifically excluded people attached to Departments of Government, as if that implied that anyone attached to a Department could not be trusted to be independent. I know that is not Senator O'Toole's view of the public service but, as worded, the amendment is not acceptable. Neither in relation to this legislation nor to my “day job”, as it were, could I be associated with casting such aspersions on every civil servant. The amendment implies that in all the Departments of State there is not one civil servant who has integrity or could be trusted to be impartial.
I have given an assurance that the inspector will not be a civil servant from or attached in any sense to the Department of Transport, Energy and Communications. All staff in that Department who have expertise are involved in this Bill and they would not be or would not be perceived to be independent. As the Department has not been involved in any part of the consultative process to date the people involved would not be compromised in any way. However, I understand the perception would be that they would have a vested interest in the outcome, so they would be the wrong people.  Beyond excluding on the record anyone from the Department of Transport, Energy and Communications I could not in all conscience, as a Minister with particular responsibility for the public service, accept an amendment which effectively stated we could trust no one in a Department of State.
Would that we could find someone from outside the Departments. It will prove extremely difficult to find a person with the correct competence, who is available to give time to it, who will meet the requirement of impartiality and follow the sentiments expressed here, none of which I disagree with. At this point there need be no presumption that it will be a person from the Department of the Environment or a judge, because no decision has been made, no agreement reached and no shortlist drawn up. The first person we approach may not be able to take on the job because of other commitments and we may have to go down a list of two or three before we find someone who meets our requirements and is willing to take on this onerous and important task.
I ask Senators not to press me on the amendment to exclude all staff of Departments of Government because I cannot do that. I assure them it will not be someone from the Department of Transport, Energy and Communications, for the reasons given. It may be a judge. My amendment includes law as well as the other competences. At this stage we have no idea who it will be.
Strong cases have been made for the need for the person not just to be impartial and independent but to be seen to be so, which is almost harder. We could have a list of people who would be impartial and independent, but to satisfy others of that is often difficult. It is in nobody's interest, least of all the Government's, to add further controversy to this difficult scheme. Any major civil engineering project for Dublin city will be disruptive for individuals and communities. It is in nobody's interest not to have an inspector who will suit the demands of all parties concerned and whose role could be questioned.  That would only add to the complications and the problems.
A wide range of inquiries is being held at present and none has presented difficulties in terms of the independence of the inspectors. Furthermore, the matter of whether the inspector was attached to a Government Department has not been an issue. I cannot accept the amendment for the reasons given. That would challenge a long standing practice and produce no positive gain. I do not mind challenging long standing practices if there is a positive gain or if the demands or the dictates of any given day require different practices and procedures. When there is no positive gain I see no point in throwing the baby out with the bath water. I have not been persuaded that we need to do so.
In recognition of the fact that qualifications and experience have relevance in the context of the appointment of a suitable individual as an inspector, I propose an amendment that provides for experience and competence to be taken into account in the appointment of the inspector. I cannot go further than that. I hope Senators can accept the goodwill in this amendment to meet most of their well made points. I remind Senators of what has already been done to tighten up the requirement to be seen to be independent in the appointment of our inspector. I am satisfied the inspector will be independent; but, in terms of the consultation with An Bord Pleanála and the other requirements to tighten up the independence of the inspector, we have gone a long way to meet the strongly held views.
Mr. O'Toole: I am not impressed with the arguments about trust. My record in this regard is clear. I took a firm line in the debate on the appointment of the Ombudsman in favour of a the current incumbent, a public servant, being well qualified to do the job. The question of trust does not arise. Its introduction only makes the matter overly emotive.
The Minister of State has not moved in the direction of independence. The question of a civil servant dealing with  this presents problems. There is the problem of double jeopardy. In the future, in the case of another line, the person may be from the same Department as that dealing with it. People from the same Department could be part of the inquiry. It is not a good idea. Even if it worked very well, it is not a good idea.
It is asking too much to expect anybody to consider that a civil servant would take a decision which they knew would go against the thinking of the Department. In terms of the person's career prospects and integrity it would be putting a person under enormous, inconsiderate and unnecessary strain. There is also a question of culture involved. It is not a good idea to take somebody from a Department which has a certain cultural approach. That is not to say the approach is bad because it is cultural; it could be the best approach. However, it is important that the person should be fresh, for want of a better term. The Minister of State has not moved in my direction on the question of independence.
I have listened to the Minister of State and suggested adding the words “shall not be attached to any Department of Government” to her amendment. She has replied that would make it too exclusive. There may be a softer form of wording. I feel it would be wrong and irresponsible of me to move away from the position of seeking an independent person. It is in everybody's best interests and does not reflect negatively on anybody.
The Minister of State used the word “independent” a number of times. I would be prepared to consider a wording which might be added to her amendment to the effect that the person appointed shall be independent of any Department. That would be a form of wording which cannot be interpreted to give any offence.
I talked about officials from An Bord Pleanála and other bodies. I should have picked up on Senator Manning's point that neither does it exclude retired public servants or civil servants. Ken  Whitaker is a retired civil servant who would be seen to be absolutely neutral. The current Ombudsman is, as it were, a retired civil servant. It has nothing to with that, rather it should not be somebody whose career path lies within the area where his or her decision could cause a problem. That is not a good idea. It is unfair and it is not good personnel management to consider putting people in such a situation.
In proposing amendment No. 33 the Minister of State is conceding one point from my amendment. However, her amendment does not include the word “qualification”. I can agree with that because people may have expertise developed through experience. The Minister of State should give ground on the question of the independence of the inspector. Coming from the Independent benches, I suggest that the words “shall be independent of any Government Department” would deal with the matter. The Independent Members are independent of the other groups in the House. That does not mean we hold people in parties to be lesser beings than us.
Mr. Norris: Not necessarily.
Mr. Manning: Not all the time.
Mr. O'Toole: The use of the word “independent” does not reflect a lower order on those who are not independent. In many cases people who can work co-operatively may show far more maturity than people who act independently. The formulation “shall be independent of any Government Department” would deal with the Minister of State's needs and allow us to move on. Those words could be added to the test of amendment No. 33 and it would meet all our needs. I hope we can come to a consensus on this. We have discussed the matter at length and I think that would be a fair compromise. The amendment would then read:
...the person appointed under  paragraph (b) shall be a person who in the opinion of the Minister has satisfactory experience and competence in one or more of the following areas: transportation planning, civil engineering, land use planning, architecture, law, finance, environmental matters or administration [and shall be independent of any Government Department]
It reads and sounds well; it meets our needs. In coming into this, my colleagues and I had a number of crucial issues on our minds. The person would require the approval of An Bord Pleanála — the Minister of State has dealt with that — and we had to move on that. We also said that the person's recommendations would have to be implemented. We indicated to her we would take the softer line which she has accepted. We have moved on our issues. The terms of reference that Senator Quinn put forward have been softened and ameliorated. This is a central issue and there are many people from community groups who put much store on this issue. I ask the Minister of State to concede this point in the context of reaching of a consensual position. It is a simple, fair, honest, open approach to this that the inspector shall be independent of any Government Department.
Mr. Dardis: It is important to say that there is no inference by myself or any Member of the House that a person from the Department would not be competent to do this job and would not do it properly, fairly and independently. That is not the issue. The Minister of State referred to it being seen to be done and I accept that that is a difficulty; but, given the history of this development, it will be extremely important that it be seen to be done. That is the crux of the issue.
I have seen Department officials conducting public inquiries. They conducted them fairly and well. People who found it difficult to go into that type of proceedings were put at their ease and  the officials made every effort to ensure that the information was given by people who otherwise would find it difficult to speak in any public forum. That was done well and competently. But, unfortunately, in this particular circumstance it will be crucial that what emerges from the public inquiry will have the absolute confidence of the public. I do not see how that can be done other than by what Senator O'Toole is suggesting. I would be happy to accept somebody from the Department; but in terms of ensuring that the project has public support and is seen to be fair and open, it has to be done by somebody who is independent of any Government Department.
Mr. Manning: This is a badly thought out amendment. For a start, the legislation guarantees the independence of the person concerned. The person will obviously be of such stature that when he or she is appointed they will accept the position, knowing that what they do is guaranteed statutorily.
Senator O'Toole talked about a civil servant being put in double jeopardy. No civil servant will be obliged to accept this position. This is a position that may well be offered to a civil servant, may well be offered more likely to somebody outside the civil service, but they will not be obliged to accept something which could put them in double jeopardy. The integrity of the public service is such — and I know Senator O'Toole is not saying otherwise — that that independence and integrity will be respected. From the foundation of the State, if you go back to the 1920s, major sensitive public inquiries — the inquiry into Dublin Corporation and Cork Corporation in the 1920s before they were dissolved for various reasons — were conducted by civil servants. People like John Garvan and others conducted these inquiries. The Cavan orphanage fire inquiry was conducted by a public servant who could well have been under pressure from the Church or other influences.
Never once has there been a question  on the perceived fairness of the public servant. I am not arguing for a public or civil servant to carry out this inquiry; but if we limit our terms of reference to preclude somebody who may be eminently qualified, that will damage the process and is gratuitously offensive to some of the fine people in the public service who are capable and would do this in an appropriate way. Senator O'Toole's amendment aims at independence and the integrity of independence. In practice it would not help and it might even hinder.
Amendment, by leave, withdrawn.
Mr. O'Toole: Is it possible to put an amendment to an amendment? My preferred option would be amendment No. 33 with my suggested addition. However, I recognise that if we vote on amendment No. 33, we cannot amend it on Report Stage. Is it possible to put in a verbal amendment at this stage with the words that I have suggested or do we have to make a choice between amendments Nos. 32 and 33?
Acting Chairman (Mr. Sherlock): It is in order to propose an amendment to the amendment, subject to the approval of the House.
Mr. O'Toole: I propose an amendment to Government amendment No. 33 with the words “and shall be independent of any Government Department.”
Mr. Manning: This is not being particularly fair to anybody, but it is the same amendment. Let us have the fight on Senator O'Toole's amendment.
Mr. O'Toole: That is fair enough. I move amendment No. 32:
In page 9, subsection (1) (b), line 16, after “subsection (1)” to add “The person so appointed will be both qualified and experienced in planning and shall not be attached to any Department of Government.”
 Amendment put and declared lost.
Government amendment No. 33:
In page 9, between lines 16 and 17 to insert the following subsection:
“(c) The person appointed under paragraph (b) shall be a person who in the opinion of the Minister has satisfactory experience and competence in one or more of the following areas: transportation planning, civil engineering, land use planning, architecture, law, finance, environmental matters or administration.”.
Amendment agreed to.
Acting Chairman: Amendment No. 35 is an alternative to amendment No. 34 and both may be discussed together.
Mr. Quinn: I move amendment No. 34:
In page 9, subsection (1) (c), line 23, to delete “as soon as may be” and substitute “immediately”.
As amendment No. 35 is a Government amendment, there is no need to push amendment No. 34. I am happy to withdraw it. The intention has been accepted by the Minister of State.
Amendment, by leave, withdrawn.
Government amendment No. 35:
In page 9, subsection (1) (c), line 23, to delete “as soon as may be” and substitute “without delay”.
Amendment agreed to.
Acting Chairman: Amendment No. 45a is related to amendment No. 36 and may be discussed together.
Mr. O'Toole: I move amendment No. 36:
In page 9, subsection (1) (c), line 24, after “published” to insert “and  its recommendations implemented as soon as is practicable.”.
The amendment is that the recommendations attaching to the inquiry be implemented by the Minister as soon as is practicable. This was the position which we felt would be most important. If the inspector pushed it to the point of adding recommendations to the report, it should be required of the Minister to implement it. It has been argued that the Minister is the politically and finally responsible person regarding the decision. I agree that the spending of money is a matter between the political head of the Department and the Permanent Secretary, who is the Accounting Officer. I find it a compelling argument that the person with whom the buck will stop should be the person who makes the final decision. On that basis the Minister has offered amendment No. 45a, which states:
In page 11, between lines 38 and 39, to insert the following subsection:
“(3) Where the Minister makes an order under subsection (2) which constitutes a substantial material departure from the recommendations contained in the report of the public inquiry held under section 8, the Minister shall lay a statement in writing before each House of the Oireachtas stating his or her reasons for such departure.”.
I want to explain the importance of this to me. As the Bill stands at present, it is simply required of the Minister to consider the report of the inspector. If the Minister, having considered it, decides to ignore it, there is little that communities or other groups can do about it. If they take on the issue at that stage, the most they can achieve is judicial review, which can question the Minister on whether he or she considered the position. If the Minister has even read the report, it can be argued properly that it has been considered.
On the other hand, the Minister has now moved to meet us to a point where she is saying that the Minister would be  required to “lay a statement in writing before each House of the Oireachtas stating his or her reasons for such departure”. It would certainly allow the Minister's reasons to be questioned, teased out, explained and challenged. On that basis, I am prepared not to press my amendment in favour of amendment No. 45a in the name of the Minister because it will be of use to the community groups, who then will be able to see the basis on which decisions were made. As a result, those decisions can be challenged and checked.
Mrs. A. Doyle: The amendment put down by Senator O'Toole and Senator Norris would require that the recommendation of the inspector be implemented as soon as practicable. This legislation is designed to give powers to CIE to construct a light railway on foot of a specific application. The use of those powers is discretionary. Even if the Minister provides CIE with powers to build a light railway, he cannot under this legislation oblige the company to proceed with construction. It is, therefore, unreasonable to expect that the Minister would be obliged to implement whatever recommendations the inspector produces. Therefore, regrettably, the amendment reflects a lack of confidence in the Minister's consideration of the application. As a result, I have agreed, with some reluctance, to include an amendment of my own, amendment No. 45a, which will require the Minister to lay a statement before both Houses of the Oireachtas where in granting a light rail order he departs significantly from the inspector's recommendation.
I cannot accept amendment No. 36 as the Minister cannot be bound by the inspector's report. Again, we are coming back to where the ultimate decision must lie, that is, with a Minister who is accountable to the Dáil. The decision must rest finally with the Minister rather than the inspector. It would be most unusual for a Minister to depart dramatically from an inspector's report, but for some reason or other he might reject it, which would be major departure.  He must be free to do so, which he would not be.
I hope I have met the Senators' sufficiently in terms of my requirement that if the Minister departs from the inspector's report substantially, he would lay his reasons before both Houses of the Oireachtas, so least we would be in a position to discuss and debate the matter if need be.
Mr. Norris: I am a little surprised that the Minister said there was no power to compel CIE to construct the light railway. I would have imagined there ought to be. It seems mad that there are no alternatives if, after we go to this trouble, CIE can then turn around, having fought its corner so hard to exclude any other interests and force its view roughshod over everybody else, and say it will not build the light railway anyway. If CIE was so anxious to build the system and fighting its corner so hard, why not compel CIE to build it?
Mrs. A. Doyle: In practice, this is not going to arise; but take, for example, a scenario whereby the conditions which the Minister was imposing on CIE were so onerous that they might bankrupt the company. In such a situation CIE ultimately must reserve the right to say no. Of course, that is not going to happen; but I give an extreme example to show it is possible, if not probable, that there are circumstances in which CIE should retain the right to say no, and that is just one. It is unlikely and I do not envisage it, but we must leave the discretion there. We cannot have absolutes in terms of direction.
Amendment, by leave, withdrawn.
Mr. Norris: I move amendment No. 37:
In page 9, between lines 41 and 42, to insert the following paragraph:
“(f) The inspector shall have the power to compel witnesses to attend the public inquiry and to  compel the availability of relevant documents.”.
This has been virtually entirely met by the Minister. As I recall, the amendment was occasioned by the Bill as initiated rather than as passed by the Dáil, so I will not waste the time of the House. If this has already been met, I will be happy to withdraw the amendment. This will affect a couple of other amendments in my name also, but they, too, related to the Bill as initiated rather than as passed by the Dáil.
Mr. Mooney: We are in agreement with Senator Norris because the Minister has addressed that issue.
Amendment, by leave, withdrawn.
Acting Chairman: Amendment No. 38. Amendments Nos. 41 and 43 are related. Therefore, amendments Nos. 38, 41 and 43 may be discussed together by agreement. Is that agreed? Agreed.
Mr. Norris: I move amendment No. 38:
In page 9, between lines 41 and 42, to insert the following paragraph:
“(g) All submissions to the public inquiry shall be made available for public inspection.”.
I am not sure whether this amendment has been met as I have not had time to check. However, it seems that in terms of openness, accountability and all these other phrases, it is important that submissions made in public inquiries should be made available to the general public. I assume there is no great difficulty with this. In other areas, similar phrases have been included in legislation. If it has not already been met, I would like to hear the Minister's view.
Mrs. A. Doyle: My amendment, amendment No. 43, has been drafted in response to requests made that the submissions made to the inspector be made  available, which is effectively what amendments Nos. 38 and 41 seek. This has now been done to ensure that the public inquiry is, and is seen to be, an open and fair forum in which the contrary views can be aired and considered.
Mr. Norris: In anticipation of the passage of Government amendment No. 43, I will withdraw amendments Nos. 38 and 41.
Amendment, by leave, withdrawn.
Acting Chairman: Amendment No. 39 has already been discussed with amendment No. 28.
Government amendment No. 39:
In page 9, between lines 41 and 42, to insert the following subsection:
“(2) An inspector appointed under this section shall, for the purposes of the inquiry, consider—
(i) the application made to the Minister under section 3;
(ii) the draft order, plan, book of reference to the plan and the environmental impact statement which accompanied the application;
(iii) any submission, whether written or oral, made to the inquiry;
(iv) any alternatives to the application submitted to the inquiry;
(v) the impact of the proposed light railway, the subject of the application, on local communities;
and such other matters as the inspector considers appropriate.”.
Amendment agreed to.
Acting Chairman: Amendment No. 40 is out of order as it involves a potential charge on the Revenue.
Amendments Nos. 40 and 41 not moved.
Acting Chairman: Amendment No. 42 is out of order as it involves a potential charge on the Revenue.
Amendment No. 42 not moved.
Acting Chairman: Amendment No. 43 has already been discussed with amendment No. 38.
Government amendment No. 43:
In page 11, between lines 10 and 11, to insert the following subsection:
“(10) An inspector appointed under this section shall cause copies of any documents or written submissions given or made to him or her at an inquiry under this section to be made available during the inquiry at the place where the inquiry is being held for inspection by members of the public.”.
Amendment agreed to.
Section 8, as amended, agreed to.
Amendment No. 44 not moved.
Amendment No. 45 not moved.
Government amendment No. 45a:
In line 11, between lines 38 and 39, to insert the following subsection:
“(3) Where the Minister makes an order under subsection (2) which constitutes a substantial material departure from the recommendations contained in the report of the public inquiry held under section 8, the Minister shall lay a statement in writing before each House of the Oireachtas stating his or her reasons for such departure.”.
Amendment agreed to.
 Amendments Nos. 46 and 47 not moved.
Mr. Cassidy: I move amendment No. 48:
In page 11, after line 45, to insert the following subsections:
“(4) No light railway order shall come into operation until the Minister has brought forward a detailed plan to integrate the proposed light railway with the existing Dublin Area Rapid Transit, Arrow and mainline railway systems and until such plan has been laid before and approved by Dáil Éireann.
(5) No light railway order shall come into operation until the Minister has carried out, published and laid before Dáil Éireann costings for alternative methods of construction and operation of the city centre section of the proposed light railway being the section falling within the functional area of Dublin Corporation.”.
The amendment speaks for itself. We have gone over a great deal of the ground covered by this amendment.
Mr. Mooney: I second the amendment which forms part of the approach of our party in this and the other House to this Bill. It is felt strongly that there is a need for an integrated transport system in Dublin. For example, three transport systems are already feeding into the centre of Dublin. This seems a waste of resources. There are a number of structural and physical examples of where integration could be carried out, for example, the DART and mainline rail both come into Tara Street station. In that context, it is felt a detailed plan should be brought forward to integrate the proposed light railway with the existing DART. There are other issues which relate to the whole transportation plan for the city. I am interested to hear what the Minister of State has to say.
Mrs. A. Doyle: This amendment means that no plan could be brought forward until all possible options had been examined in great detail. I have already made the point that this has been done to a large extent and the time has come to make progress on selected elements of the overall strategy. It would be a mistake to believe we could not make a start unless everything could be done. I realise the current proposals are not everything everyone would wish but they are a vital first step. The rest will follow.
In relation to alternative methods of construction, I hope I have satisfied the House in the other amendments which have been accepted that the underground options will be looked at in greater detail.
Amendment put and declared lost.
Section 9, as amended, agreed to.
Sections 10 to 12, inclusive, agreed to.
An Leas-Chathaoirleach: Amendment No. 49 is out of order as it involves a potential charge on the Revenue.
Amendment No. 49 not moved.
Section 13 agreed to.
An Leas-Chathaoirleach: Amendment No. 50 is out of order as it involves a potential charge on the Revenue.
Amendment No. 50 not moved.
Question proposed: “That section 14 stand part of the Bill.”
Mr. Mooney: I know the Minister of State has responded to the question of costs for possible demolition, but will she reassure us in the context of section 14 that, so far as possible, there will not  be any losses and that the normal avenues of compensation will be open for any losses?
Mrs. A. Doyle: I do not need to add to that now.
Question put and agreed to.
Sections 15 to 18, inclusive, agreed to.
Government amendment No. 51:
In page 18, subsection (1), line 34, after “or” where it firstly occurs to insert “trespasses”.
Mrs. A. Doyle: This is a technical amendment which clarifies that the trespass provisions also apply to trespass on land with machinery and equipment.
Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 to 23, inclusive, agreed to.
An Leas-Chathaoirleach: Amendment No. 53 is related to amendment No. 52 and both can be discussed together.
Mr. Cassidy: I move amendment No. 52:
In page 20, lines 24 to 27, to delete subsection (3) and substitute the following:
“(3) The Minister may by regulations provide that the contravention of any specified bye-law or bye-laws made by the Board under this section shall constitute an offence and that a person who contravenes such a bye-law shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.”.
Mr. Mooney: Will the Minister of State clarify if the terms of this amendment have been incorporated into section 24?
Mrs. A. Doyle: Initially it seemed to me that the point being made in the proposed amendment was a reasonable one in that it seeks to distinguish penal by-laws from others which may be of a more administrative character. Similar provisions exist in some older legislation. I understand, however, that the amendment would be subject to constitutional challenge on the basis that it gives the Minister the power to decide which by-laws should attract a penalty. I have been advised that this could be seen as an exercise of legislative power contrary to Article 15.2.1 of the Constitution.
Furthermore, in the case of the State, Harrington v. Wallace, 1988, Irish Reports 290, the Supreme Court appeared to suggest that the infringement of a by-law must attract a penalty. There is case precedent for this. It is the essence of a by-law that it must attract some form of sanction in respect of its breach. In such circumstances, the whole object of the by-law would be undermined if the existence of a penalty was left exclusively to the Minister. For these reasons, I regret I am not in a position to accept the proposed amendments.
Amendment, by leave, withdrawn.
Amendment No. 53 not moved.
Section 24 agreed to.
An Leas-Chathaoirleach: Amendment No. 54 is out of order as it is outside the scope of the Bill.
Mr. Norris: On a point of order, may I register the fact that I disagree with this ruling, although I know it is made in good conscience? I will have it raised  in another forum. In addition, we will be seeking to address that point by tabling an amendment on Report Stage.
Amendment No. 54 not moved.
Question proposed: “That section 25 stand part of the Bill.”
Mrs. A. Doyle: I will make a brief reply which might be helpful when this issue is considered at the Committee on Procedure and Privileges. The public versus private sector argument in issues such as this is not particular to Ireland. At an informal Transport Council in Rome in April 1996 the Transport Commissioner, Neil Kinnock, proposed the establishment of a high level group which would be mandated to help find new ways of accelerating the implementation of public-private partnerships, especially for priority projects on the trans-European network. Arrangements to establish the group are being made at present and the Department of Transport, Energy and Communications will be represented on this group. Therefore, there will be another forum discussing it which may be of interest to the Senator.
Mr. Norris: The Minister of State referred to the matter being debated at the Committee on Procedure and Privileges. What will be referred to the Committee on Procedure and Privileges is the question of the interpretation involving the notion that we cannot effect this because it is dictated by the Title to the Bill. I do not accept that.
Mr. Manning: The thought of the Senator going to the Committee on Procedure and Privileges fills me with trepidation.
Mr. Norris: So it should.
Question put and agreed to.
Sections 26 to 30, inclusive, agreed to.
 Question, “That the Title be the Title to the Bill”, put and agreed to.
Bill reported with amendment.
Agreed to take remaining Stages today.
Sitting suspended at 5.35 p.m. and resumed at 5.45 p.m.
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