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    Failure to implement current Planning Act's provisions on appointing Bord Pleanála Chairperson will backfire

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    BORD PLEANÁLA:  O’BRIEN REVERTS TO RAY BURKE ERA LEGISLATIVE ETHOS Media ignore Department of Housing’s disarray over how to appoint a new Chairperson to guide discredited planning appeals body By J Vivian Cooke and Michael Smith Ireland’s crisis-raddled planning appeals board, An Bord Pleanála (ABP), is an independent, statutory, quasi-judicial body that deals with appeals from local authorities and, at first instance, with some large planning applications. Its board members were directly appointed by the relevant Minister until 1983 when the system was reformed following unease with appointments of acolytes, including his own constituency advisor, by corrupt Minister Ray Burke in the golden era of Fianna Fáil-led planning corruption. The reforms established a new ‘arms’ length’ approach where candidates for the position of Chairperson of the board are interviewed by a committee chaired by the President of the High Court and selected by various worthies and NGO bosses  whose organisations also have a role in nominating ordinary members. On 22 November, the government announced that it intended to appoint Oonagh Buckley as interim Chairperson of ABP. The appointment is necessitated by the degringolade of ABP’s credibility in the wake of multiple revelations of delinquency that led to the resignation of both its Chairman, David (Dave) Walsh, and its Deputy Chairman, Paul Hyde, who has been linked to multiple conflicts of interests, failures to declare interests and compromising loan write-offs; and is facing criminal prosecution and three unpublished inquiry reports. the government announced that it intended to appoint Oonagh Buckley as interim Chairperson of ABP after the resignation of both its Chairman, David (Dave) Walsh, and its Deputy Chairman, Paul Hyde Buckley is a qualified barrister and adjunct professor of law as well as a well-regarded and experienced civil servant who, during her time in the Department worked on planning policy and legislation. Therefore, she may have been surprised to learn that her elevation to the position of interim Chairperson “will be effected through the use of Ministerial powers to appoint a Deputy Chairperson under existing provisions of the Planning and Development Act, 2000 and further forthcoming amendments through the Planning and Development and Foreshore (Amendment) Bill 2022”.  This new Bill is a Department of Housing, (the Department). initiative which was published on 9 November.    The sleight of hand in appointing a new Chairperson, bypassing specific legislation, is a reversion to the gombeenism of a different era and will surely not go unchallenged in the courts APPOINTING A NEW CHAIRPERSON   There may well be a need to regularise a new Chairperson quickly as the standard way the board operates — in divisions — depends on it. Perhaps reflecting this, the Department emailed Village: “Oonagh Buckley will be seconded to the Dept. of Housing to become an officer of the Minister for Housing. Following that the planned appointment sequence is: “The Minister appoints Ms Buckley as a temporary ordinary board member [Section 108(4)] The Minister appoints her from amongst the ordinary board members as ABP Deputy Chair (Section 107) As the post of ABP Chairperson is vacant, Ms Buckley will under Section 110(1A) [sic] perform the Chairperson’s functions [sic] Section 110(1) functions as Deputy Chair [sic] i.e. (a) ensuring the efficient discharge of the business of the Board, and (b) arranging the distribution of the business of the Board among its members”. An even more dramatic  illustration of the position from which the Minister has now resiled was the following exchange on 30 November over a question from Paul Murphy TD: “Question [From Murphy]: To ask the Minister for Housing; Local Government and Heritage if he followed the procedure set out in s.105 of the Planning and Development Act 2000 in appointing a new ‘interim chair’ of An Bord Pleanála; if not, the reason that he felt able to ignore that requirement. Reply [From Darragh O’Brien]: The appointment of the interim Chairperson will be effected through the use of Ministerial powers to appoint a Deputy Chairperson under existing provisions of the Planning and Development Act, 2000 as amended – specifically Sections 107 & 108(4) – and through further forthcoming amendments through the Planning and Development and Foreshore (Amendment Bill) 2022”. The problem is that, while a Chairperson is required, the Planning and Development Act, 2000 (the Act) does not provide for an “interim Chairperson”. In short, all the provisions that allow for direct ministerial appointment under the Act only apply to ordinary members not to the Chairperson. In order to appoint a new Chairperson, the Minister is obliged to follow the complex procedures detailed under Section 105 which require convening a panel chaired by the President of the High Court and including the likes of the Chairperson of An Taisce, and the Presidents of the Construction Industry Federation and Irish Congress of Trades Unions. The theory is sound and gratifyingly has been retained under the proposed reforms of ABP in the Planning and Development and Foreshore (Amendment) Bill 2022. Unfortunately, the Act prescribes that the names of fully three recommended candidates go to government and it is almost impossible, bearing in mind the composition of the panel, that one of those will not be the one favoured by the Department of Housing – often, like David (Dave) Walsh, a Departmental insider. This is in part because the Department convenes the interview panel and hosts its meetings: making it unlikely that ‘planning-uninitiated’ panel members would strike a jarring note, as one of the authors of this piece found when he served on the panel.  This should be reformed since institutional renewal will not come at the hands of the ubiquitous Departmental insiders who oversee national planning policy.   Certainly, there is scope under Section 105 (6) of the Planning Act for the Minister to amend the composition of the selection panel (theoretically allowing the Minister to appoint himself as the sole member of the selection panel), but there is no power then to circumvent the legal requirements to publish notices of this in Iris Oifigiúil, to make orders, lay such orders before the Oireachtas, etc.

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    Villagestands by Varadkar-leak story but, after due process, the Tánaiste remains innocent in the eyes of the law

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    4August/September 2022 VillageMagazine published correspondence in November 2020 under the headline ‘Leo Always Delivers’. It showed that in April 2019 then-Taoiseach Leo Varadkar transferred the confdential draft (it was subsequently amended 30 times) heads of agreement for the contract being negotiated between government and the Irish Medical Organisation to a friend of his. That friend was the president of a rival doctors’ representative organisation, the National Association of GPs (NAGP), Dr Maitiú (Matt) O Tuathail. As this magazine said at the time, the transfer constituted a crime under the Ofcial Secrets Act (OSA) 1963 and, possibly, under the Criminal Justice (Corruption Ofences) Act 2018 (the “Corruption Act”). At no time has Villageever said that Mr Varadkar had been convicted of a crime but, instead, the assertion we made was that his actions were, objectively and precisely, a crime. Villagehas seen defnitive legal advice that the maximum allowable period for a summary prosecution of an ofence under the OSA is six months from the date of the commission of the ofence. An alternative prosecution on indictment only applies in cases of breaches of the OSA that afect national security. This one did not and so it would not have been possible for the DPP, Catherine Pierse, to prosecute this particular crime under the OSA. Villagebelieves that Pierse’s decision not to prosecute will most likely have been determined by the fact a prosecution had run out of time. It is worth, as an aside, recording, with exasperation, that no Minister has ever been prosecuted, let alone convicted, under the OSA, in Ireland (or the similar UK legislation). To be clear, a decision by the DPP not to prosecute is not the same thing as a decision that there has been no criminality. Any decision by the DPP not to prosecute could be because prosecution has run out of time — or because there is not enough evidence to prove the case beyond reasonable doubt; or because the case might not be, for whatever reason, in the public interest. Therefore the DPP’s decision not to prosecute probably does not afect the validity of our claim. We cannot be expected to row back from it.As to the Corruption Act, it provides in Section 7 (2): “An Irish ofcial [which all agree includes a Taoiseach] who uses confdential information obtained in the course of his or her ofce, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person shall be guilty of an ofence”. We will not rehearse the arguments we have made as to the applicability of the Corruption Act in this case. However, the key point is that it focuses on advantage rather than simply monetary gain, and that the advantage can be conferred on either the person passing, or the person receiving, the information. A solicitor with Arthur Cox, Tara Roche, recently wrote: “to date, investigations into allegations of bribery or corruption in Ireland have been uncommon and there have been no prosecutions under the Corruption Act”. However, this trend appears to be changing slowly. The Garda National Economic Crime Bureau now has a team dedicated to the investigation of serious and complex economic crimes. That suggests that, one way or another, white-collar crime will now be prosecuted far more often. The complexity, including, presumably, huge degree of legal complexity, of the Varadkar case resulted in inevitable delays. The Garda took 18 months to create a fle of several hundred pages, in which they made no recommendation. Furthermore, it is believed that the DPP also obtained external counsels’ advice. There cannot be any doubt that this was, and was treated by the authorities as, a non-trivial case, despite the contrary claims of many charlatans – especially charlatans in Ireland’s one-time newspaper of record. Despite all this, some still persist in claiming that Village’s headlines are defamatory. Mr Varadkar himself originally and rudely said he would not sue Villagefor defamation as it would be like suing someone on Twitter. The analogy is unsound. Then, after the decision not to prosecute him, Mr Varadkar declined to sue for fear that his “sworn enemies” would use the opportunity to immiserate him. However, he also acknowledged some time ago that the time at which it was permissible for him to launch defamation proceedings has now passed.. Arguably he could apply for an extension to that period but the preferred procedure would have been to initiate his defamation action and then apply to postpone proceedings until the investigation into his criminal conduct had concluded. The way he went about claiming defamation by Villagewas, to borrow his own phrase “not best practice”.Villageasserts Mr Varadkar’s right to due process of the law in full and we share his concerns about the invidious position in which people fnd themselves while waiting for a criminal complaint to be resolved. Villagealso asserts Mr Varadkar’s right to the presumption of innocence under the law. For all that we disagree with the outcome, the criminal process has been exhausted and the matter is closed. Politics aside, we wish Mr Varadkar well. But Villagestands by its story. Village stands by Varadkar-leak story but, after due process, the Tánaiste remains innocent in the eyes of the lawEDITORIALIssue 77August/September 2022 Challenging the endemically complacent and others by the acute promotion of equality, sustainability and accountabilityONLINEwww.villagemagazine.ie @VillageMagIRE EDITORMichael Smitheditor@villagemagazine.ieDEPUTY EDITOR J Vivian CookeREPORTERRóisín O’SheaDESIGN AND PRODUCTIONLenny RooneyADVERTISINGsales@village.iePRINTERSBoylans, Drogheda, Co LouthVILLAGE IS PUBLISHED BYOrmond Quay Publishing6 Ormond Quay Upper, Dublin 7

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