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Dáil Éireann debate -
Wednesday, 21 Mar 1928

Vol. 22 No. 14

ADJOURNMENT DEBATE. - APPOINTMENTS BY LOCAL AUTHORITIES.

Mr. FAHY took the chair.

I will endeavour to make my case an impersonal one, and any reference I make to a personal or individual case I make for one purpose and one purpose only—the purpose of illustrating the general application of what I consider an unwarrantable desire on the part of the Minister for Local Government to deprive local authorities of the obvious rights which have been conferred upon them by an Act of this House. I do not want it to be inferred that I am caoining over patronage or for the sake of the patronage which has been taken from local authorities. My complaint is that an important privilege having been conceded to local authorities under the Local Authorities Act—and I think that privilege must have behind it some very good and serious consideration at the time it was conceded—is now being nullified by the Local Government Department. The consideration behind the granting of this privilege appears to be an admission on the part of this House that local authorities were in a better position to judge the efficiency of their staffs than any Selection Board would be. In consequence of the knowledge which this House had of that, local authorities were allowed under Section 5, of the Act to fill vacancies in a particular manner without referring these vacancies to the Appointments Commission, the appointment when made being subject to the sanction of the Minister.

The contention of the Local Government Department now is that unless the Minister for Local Government gives his sanction to the procedure— that is, prior sanction to the proposal— the local authorities cannot make the appointment. The local authorities make no claim on the Minister's right to sanction the appointment or to refuse sanction of the appointment when made. We admit that. The Minister for Local Government has a right to say when an appointment is made: "This man does not fill the bill; he is not qualified," or for some other reason he can say: "I cannot sanction him." We admit that.

Now let me give you the particular section which deals with the matter. It reads:

An appointment of a person to fill an office to which this Act applies may, subject to the sanction of the Minister, be made by a local authority without requesting or obtaining a recommendation from the Commissioners.

That is all of the section that concerns me. I do not know what meaning the legal advisers of the Local Government Department put on these words, "subject to the sanction of the Minister," but in ordinary, common usage the meaning of, and the interpretation put on, these words would be that the Minister had the right to withhold sanction to the appointment when it was made. If the Minister contends that some other interpretation can be put on that, I propose to show that at least the spirit of the Bill when it was being put through this House was as I say. The original draft of this section read:

Whenever an office to which this Act applies becomes vacant, the local authority, with the consent of the Minister, may within a certain specified time make the appointment.

An amendment was tabled to delete the words "with the consent of the Minister," which apparently meant prior consent—the consent of the party to the Act, consent to the procedure. An amendment was tabled to delete these words, "with the consent of the Minister," and as a result of the tabling of those amendments the then Minister for Local Government, Deputy Burke, deleted the whole section and substituted this other one, which reads, as I pointed out:

An appointment of a person to fill an office to which this Act applies may, subject to the sanction of the Minister, be made by the local authority...

Compare that with the original, which stated:

Whenever an office to which this Act applies becomes vacant, the local authority, with the consent of the Minister...

Because the Minister had met the amendments they were not moved. Further, sub-section (4) of Section 5 reads:

Whenever an office to which this Act applies becomes vacant the local authority, if satisfied that the circumstances of the case so require, may, with the consent of the Minister, appoint any person to fill such office temporarily.

No member of the House objected to the consent of the Minister in that case, because it was a temporary appointment. Consequently, the Minister for Local Government still retains that power under the Act. That is, with regard to a temporary appointment. With regard to a permanent appointment, the wording is that "The appointment of a person to fill an office to which this Act applies may, subject to the sanction of the Minister, be made by the local authority without requesting the Commissioners, etc."

They "may elect or appoint any person who held a pensionable office under the said or any other local authority or any two or more local authorities, the duties of which related to matters the same as, or similar to, the matters to which the duties of the vacant office relate." They can also appoint a pensioner who is receiving an allowance from any other local authority, and so on.

I think it is quite clear that it was the intention of this House and the intention of the previous Minister for Local Government, Deputy Burke, that the words subject to "sanction" should mean, as we knew in usage, post-sanction. Consequently, he deleted the words "with the consent of the Minister," which would have meant prior sanction. If further proof is needed for that, I will quote from the debates on the Bill when it was before the House. Deputy Dalton, who was opposing the passing of the Bill, made this statement:

"You may get an assistant secretary of a county council who has a better knowledge of the work than any man who can be appointed through this system of examination in Dublin, for he has acted for years in that capacity. In all such cases where a man has a record it should be a question of promotion."

Deputy Burke, the then Minister for Local Government, stated immediately: "Why not promote him?" Well the contention now is that he cannot be promoted without the Minister's prior consent. Further, in the debates we find the Minister for Local Government making this statement, which is very significant and very important:

In fact one Deputy suggested that it was merely transferring patronage from the local authorities to the Minister for Local Government. I do not see how any Deputy who has read Section 5, could say that. That section gives local authorities absolute power, as regards the promotion of suitable officials at present in their service, and power to elect suitable pensioners who had experience of similar work in the past. There is absolute power to make those appointments without any reference to the Commissioners. It is only in cases where they fail to make these appointments that the machinery of the Commissioners comes into operation at all.

I do not want to say that the Minister for Local Government is a fit and proper person to interpret Acts of Parliament, but I do say that is the spirit in which he got his Act through the House, and that is the spirit in which it was interpreted all over the country.

I think I have quoted quite enough to show what the spirit of the Bill was. To my mind, the Bill was a means of selection for public offices where there was no chance of promotion. That was what the Bill appeared to be, and what the Act appears to be. My contention then is that the Local Government Department, knowing the spirit of the Bill, and the spirit in which it was put through the House, is acting ultra vires in seeking to put a legal interpretation on certain clauses of the Act which was never intended, and which is absolutely immaterial to the working of the Act. On the other hand, it will have a deterrent effect on the incentive to efficiency which the anticipation of promotion holds out to officials. What chance, for instance, has a man, say, of 47 or 48 years of age, who has spent his life in a public office, of getting an appointment through the Appointments Commission against a man fresh from school with academic qualifications? He has absolutely none. My claim then is that the local authority has a perfect right within the Act to promote this man, and the Minister has the power to withhold or grant sanction, whichever he thinks it right to do. My point is that the Minister has no right to say, as he said to Galway and Roscommon: "You cannot promote without my prior sanction." My contention is that that interpretation is wrong. It certainly was not the spirit in which the Bill went through the House, and it is not, to my mind, the proper interpretation to be put on the Bill from the point of view of efficiency in local administration, because if you remove the incentive to efficiency, which is promotion, nothing else remains as an incentive to efficiency. What prospect has any man in the office of a local authority if, according as vacancies arise, either at the top or in the middle, or anywhere else, there cannot be promotion? There can, of course, be promotion with the prior consent of the Minister, but I hold that is absolutely and entirely wrong, and that it was never intended that that interpretation should be put upon it. If we can only have promotion with the expressed consent of the Minister for Local Government, where does this absolute power, mentioned by Deputy Burke when he was putting the Bill through the House, come in? Was he entirely wrong in stating: "It is only in cases where they fail to make these appointments that the machinery of the Commissioners comes into operation." He may be wrong, but that was the spirit in which the Bill was passed and in which this House interpreted it. To my mind, it is the spirit which will lead to greater efficiency in local administration.

In Roscommon quite recently the Board of Health had a vacancy for a doctor for the county hospital, and they asked the Minister for Local Government to send down an inspector to consult with them at their meeting in order that they would be unanimous in the manner in which they would select a doctor. The inspector attended the meeting, and as a result the following advertisement was drafted:—

"This Board will at their Meeting at Roscommon on Saturday, 18th February, 1928, commencing at 10 a.m., proceed to fill, subject to the sanction of the Minister, the vacant office of Medical Officer and Surgeon of the County Hospital at Roscommon, by appointing a person who satisfies the Board that on the 17th December, 1927, he either held a pensionable office, or was in receipt of an allowance in respect of his having ceased to hold an office under this Board or any other local authority or any two or more local authorities the duties of which related to matters the same as or similar to the matters to which the duties of the vacant office relate; that he possesses all the qualifications for the office prescribed by Article 36 of the General Regulations, 1924, and produces a certificate obtained from a visiting surgeon of a clinical hospital recognised by the Minister that he has had at least not one but three years' practical experience in surgical work, including the performance of major operations, and shall also have a practical knowledge of x-ray technique and, be conversant with the application of x-ray and its various uses. The person appointed will be a whole-time officer."

That advertisement was sent to the Minister for Local Government after consultation with his inspector and his reply was:

"With reference to your letter of the 30th ultimo, forwarding a copy of the advertisement proposed to be issued by the Roscommon Board of Health and Public Assistance inviting applications for the position of Medical Officer and Surgeon of the County Hospital, I am directed by the Minister for Local Government and Public Health to point out that the effect of the Board's proposal would be to confine the position to medical men who had already been in the Poor Law service and having regard to the qualifications prescribed for the office and the nature of the duties, the Minister considers that it is not in the interests of the service to impose this limitation.

"For this reason the Minister is not prepared to approve of the Board's proposal. The vacancy should be reported to the Local Appointments Commission, so that the appointment would be open to highly qualified medical men, who may not have been in the Poor Law Service, and the Board would have the benefit of special advice at the disposal of the Commissioners."

On the same day that the Board decided to issue the advertisement a notice of motion was handed in by one of the members to this effect:

"I hereby give notice that I will move, or cause to be moved, at our next meeting on the 18th February, 1928, that the vacancy in the office of Medical Officer and Surgeon of the County Hospital be filled in accordance with Article 30 of the General Regulations of 1924, by transferring thereto, with the consent of the Minister, one of the permanent medical officers in the service of this Board, provided that he or she satisfies us by testimonials and otherwise that he or she possesses the necessary qualifications for the office as laid down by the Minister in Article 36 of the said Regulations.

"That a copy of this notice of motion be sent forthwith to each of our permanent medical officers to enable those of them possessing the necessary qualification to apply, if they so desire, to be transferred accordingly."

The Minister refused to allow the advertisement to go. When the Board met they acted on the notice of motion and appointed one of their own medical officers who, they believed, would fill the bill. On the day that the appointment was made the Chairman of the Board apparently got into communication with the Local Government Department and asked the Local Government Department if the Board had the right to promote one of its own officials. This was the reply of the Local Government Department:

"Promotion would not be in order without prior sanction by this Department."

I hold that that was never contemplated. How does that fit in with the section of the Act which I read?

ACTING-CHAIRMAN

I might remind the Deputy that he has exactly one minute to conclude his case, as it is usual to give the Minister ten minutes to reply.

I am very sorry, but I will not be half way through by then. However, that is my case roughly. As I have only one minute left, I cannot finish my case, and all I can say is that, if the Minister insists that his interpretation is right, I am afraid it is not making easy the thorny path of the Commission, and, what is more, I know that the local bodies all over the country will not be pleased. If he insists that his interpretation is right, and that that is the only proper and legal interpretation to be put upon it, the matter must be brought before the House in a different form, at some time other than on the adjournment, so as to get an expression of opinion on it. If I do that, I hope the Minister will see his way to leave the matter to a free vote of the House, so that we will see where we are exactly.

I should like to know if a local authority is empowered to promote anybody outside its own officials, and if a local authority must first get the consent of the Minister before it can promote even one of its own officials?

Deputy Brennan has spoken a lot about the spirit of the Act and the intentions of the House, the obvious rights and important privileges that this Act enshrines and the particular spirit and attention that it was supposed to get for public bodies. He talked a long time, and he talked a lot about these things, but he has left us absolutely devoid of any idea as to what objective he has in mind, what objective the public bodies have in mind, or what objective this Act was supposed actually to carry out in the public service whether for the public bodies themselves or the people for whom the public bodies are working. Deputy Brennan goes back to some old Dáil debates and some draft copies of Bills, but what I have to deal with is the Act if the Act is properly worked, and I subscribe, to some extent, to what Deputy Brennan says: that a legal point here and there of minor importance is immaterial to the working of the Act if the Act is properly and effectively worked. As far as the legal position goes, I am advised that a public body proceeding to make a promotion must have the Minister's prior sanction. That is a legal point. But let us get on to the practical thing.

So much has been talked about promotion that we are left to understand that the intention of people who speak about promotion is to give an opportunity to persons in the public service already, and who have given satisfactory service to get promotion, to get transferred to better positions in the service on their merits and as a result of their service. If that be so, let us face what the actual position is. Let us take the Roscommon case. Let us say, at the beginning, that a Minister attempting to carry out this Act is restricted by many things. In the first place, he has no power under the Act to make any regulations that will either help himself or will help the public bodies to achieve the objects for which the Act is intended. The Minister has no power to make a local body advertise in case they are proceeding with his sanction under Section 5. He has no power to make them advertise. I just mention that to show the disability under which a Minister who wants to get the best effect out of the Act labours. Let us take the Roscommon case. The running of this case from the Roscommon Board of Health point of view was not so simple or straight as the Deputy says.

I have read all the correspondence.

Let me have the ten minutes at my disposal, at any rate. The Roscommon Board of Health wanted to appoint a county surgeon to their County Hospital, and they asked that an inspector would be sent down to attend their meeting. The inspector attended, and it was decided that an advertisement would be issued. That decision to advertise was enshrined in a motion which did not restrict the field to persons already in the employment of local bodies. A copy of that resolution reached the Department of Local Government on the 3rd February, coming from a meeting held on the 21st January. But three days previous to that a draft advertisement came in for the sanction of the Minister proposing to advertise for the position and to restrict applicants to persons who were in the employment of local bodies already.

They had not a right to advertise otherwise.

Let us take the advertisement as it is. The Roscommon Board of Health, bearing in mind the spirit of the Act, and the intention of the House, proceeded to ask permission to advertise to all the medical officers in the employment of the medical bodies throughout the country, for applicants for the position of county surgeon in the Roscommon County Hospital. There are twenty-five county hospitals in the country, and there are 52 district hospitals in the country. There are about 650 or 700 dispensary medical officers. Let us take the county medical officers alone. There are many county medical officers throughout the country that are not as well paid as the Roscommon Board of Health propose to pay their county medical officers. One or three or four, or half a dozen might desire to transfer to Roscommon. Of the 52 district hospitals that are in the country, some are hospitals where local dispensary officers are in charge. These are districts where there is already a county hospital. That would be in counties where there is a county hospital. There are others where there is no county hospital, but there are a certain number of district hospitals of a higher class than district hospitals would be in a county where there is a county hospital. Some of those in charge of district hospitals, some of the 52, may desire to be applicants, apart altogether from the dispensary medical officers that might apply.

What machinery has the Roscommon Board of Health at its disposal to decide in the interests of giving the best man the job and the best services to the people of Roscommon which of the many medical men that might come forward for this position was the best? The Minister responsible for the administration of this Act, as well as for giving the poor of the country the best possible service he can give them, must certainly take cognisance of the fact, that if the Act gives a supreme right and an obvious right and important privileges to the Roscommon Board of Health to select a man from among those many applicants, they have not the machinery to do it.

May I just say this? I have no power to define in regulations what classes are kindred, shall I say, for the purpose of Section 5 of this Act. I have no power to arrange machinery for the Local Board of Health to make selections from among men of high technical qualifications as to which is the best. What we have done, in the circular issued on the 12th August, 1927, is that we have asked the local bodies that in future, when they apply to the Minister for his sanction to proceed under Section 5 that the application shall be accompanied by a clear statement of the ground on which the application is made. In the short time at my disposal I want to say this. Employees of local bodies have a very efficient and strong organisation. The dispensary and medical officers have their own organisation. The local bodies are fairly well represented and can get their voices heard through the General Council of the County Councils. I have not had a single complaint that the employees of the local bodies were dissatisfied with the way in which the Department is administering this Act. If there are any representations to be made by those particular bodies on behalf of employees or by the General Council of the County Councils on behalf of the public bodies, the Department and myself are only too anxious to hear what they have to suggest, as to how the spirit of this Act is to be given effect to. We have already had a case in which a dispensary medical officer from an out-of-the-way place in West Cork was being appointed in another Board of Health area without reference to the claims of other officers in that particular area, or any other area, nearby, and even as far as the Department of Local Government is concerned without any information being before the Board of Health as to what kind of service that officer really did give in the other area. But as regards the one case of how the Roscommon Board of Health were to get the best possible man as County Surgeon, very little contemplation of that one case will help Deputies to realise the difficulty of the position from the point of view of the Minister. As far as I am concerned, and as far as my Department is concerned, what is enshrined in the last paragraph of our circular of 12th August, 1927, was the best possible contribution we could give to local bodies in the matter of finding out what exactly the position was in each particular case so that on the merits we could help the local body in the best possible way we thought it could be helped.

The Dáil adjourned at 9 p.m. until 3 p.m. on Thursday, 22nd March, 1928.

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