Committee on Finance. - Local Authorities (Miscellaneous Provisions) Bill, 1936—Committee Stage.
Section 1 agreed to.
SECTION 2.
Whenever a local authority borrows or is deemed by the foregoing sub-section of this section to borrow money under or in purported exercise of its statutory powers from a lender who lends such money in good faith, the following provisions shall have effect in favour of such lender or any person claiming through or under him as against such local authority, that is to say:—
(a) neither such borrowing and lending nor any mortgage or other security given or purported to be given by such local authority to such lender for securing the repayment of such money and the payment of the interest, thereon shall be invalidated or questioned on account of any illegality or irregularity in the constitution of such local authority or the election of any of the members thereof;
(b) such lender shall not be concerned to inquire whether the purpose for which such money is borrowed by such local authority is or is not a purpose for which such local authority is authorised by law to borrow money or whether such money does or does not exceed in amount any limit on borrowing by such local authority, and such lender shall not be prejudiced or affected by the fact (if it exists) that such purpose is, ni whole or in part, not so authorised or that such money exceeds in amount any such limit;
(c) such lender shall not be concerned to see to the application of such money by such local authority or be prejudiced or affected by any misapplication of such money or any part thereof by such local authority or any of its officers.
(3) This section shall be deemed to have come into operation on and to have had effect as on and from the 6th day of December, 1922, and shall accordingly apply and be deemed always to have applied to transactions commenced after that date and before the passing of this Act (whether completed before or pending at such passing) as well as to transactions commenced after the passing of this Act.
I move amendment No. 1:—
In sub-section (2), page 3, before paragraph (c), to insert two new paragraphs as follows:—
(c) such lender shall not be concerned to inquire whether any meeting of such local authority was or was not properly convened or constituted, or whether any particular notice to the members of such local authority was or was not duly given, or whether the proceedings at any meeting of such local authority were or were not legal and regular;
(d) where such local authority could not lawfully borrow such money without the sanction or the consent of the Minister, and such sanction or consent (as the case may be) was given or purported to be given by the Minister, such lender shall not be concerned to inquire whether any statutory condition precedent to the giving of such sanction or consent was or was not duly complied with, and such lender shall not be prejudiced or affected by the fact (if it exists) that any such condition precedent was not complied with by the person (whether the Minister, such local authority, or any other person) charged with the duty of complying therewith.
The object of this amendment is to prevent persons who lend money to a body, which they believe to be a local authority acting in accordance with its statutory powers, from losing their money owing to the failure by the body to observe some of the many formalities which are required by the existing law. This amendment is intended to supplement the provision in paragraphs (a), (b) and (c). They provide that the lender is not to be concerned whether any meetings of a local authority were properly convened or constituted; whether proper notices had been given; whether the proceedings at any meeting were legal or regular; or whether any conditions precedent to the giving of the Minister's sanction to the borrowing were complied with.
This amendment strikes me as being very radical and as going very far. I should like to know what justification the Minister has for inserting it. The mere formal reading out of an amendment of that kind seems to me to be very perfunctory, because the amendment is desperately radical. A person can lend any sum of money to any authority and then hold the ratepayers liable, without first inquiring whether or not the local body supposed to be carrying out the law—and the Minister also is involved—is legally constituted, or whether the loan was properly issued. The amendment was circulated only an hour or two ago and it seems desperately radical. Speaking for myself, I protest against it.
Amendment put and declared carried.
Amendment No. 2 deals with the retrospective aspects of this measure, and several other amendments in Deputy Lynch's name deal with the same point. I wonder how far the Deputy can group them?
Mr. Lynch
In view of the attitude the Minister has adopted right through, my intention is to move this amendment and to divide the House upon it and not to move the others. It, is: To delete sub-section (3). All the other amendments standing in my name are to a great extent to the same effect as this amendment, that is, to remove from the Bill its retrospective application. Everybody, when speaking here, gives lip service to the principle that retrospective legislation is vicious.
Last night I quoted at length from a speech made by Mr. Justice Maguire last year when he was Attorney-General in which he set down the times and the occasions on which, in his view, retrospective legislation might be permissible. I am not going to repeat that quotation to-night because I do not want to delay the House, but I shall say that presumably when the Attorney-General of that time was voicing these views as to when retrospective legislation was something that one could stand over, he was speaking for the Executive Council and the Government. If that was the view of the Government, 11 or 12 months ago—the speech was made on the 10th December, 1935 — their view has considerably advanced since. They are not at all now concerned to confine retrospective legislation merely to dealing with matters which, having long had a certain interpretation put upon them, had suddenly a new interpretation put upon them. They are not now concerned to maintain the old interpretation of statutes. The new attitude is that when they are up against a snag, in they come with a Bill ad hoc. Whenever a Government Department find themselves brought into the law courts and when they have the pleadings before them, when they see the case their opponents have, apparently their attitude now is that they will come along to the House and bring in legislation to put their opponents out of court. That is what they have done in this case.
I say that is a negation of justice but I am not going to delay the House in dealing with the matter at any length. From the attitude which the Minister adopted last night, a cocksparrow attitude, I may say it is perfectly obvious that he is going to steamroll this measure through the House exactly in the form he wants it. He has no other House to face with the Bill. He has his tame majority here who will follow him into the Lobby to uphold anything that he may bring before the House, no matter how unjust, no matter how little one can, with any sense of fairness, stand over it. He has his majority there behind him to steamroll it through. I am not therefore going to waste the time of Deputies or my own time trying to prevent his doing something which I know he has already made up his mind to do.
I think the Deputy realises that we usually try to discuss legislation here, particularly with regard to local government affairs, in a very calm, deliberate fashion, and that when useful suggestions are made by anybody on any side of the House they are always considered and, where practicable and where found to be useful, they may be adopted, and have even been adopted, by way of amendment of the legislation proposed. I cannot say that much can be done in that way in regard to this Bill. Though in its draft it is of general application, it is very largely of particular application, as Deputy Lynch knows. I therefore do not want to go back over old sores and old disputes or to rake up the bones of dead controversies in dealing with this matter. Deputy Lynch knows that we could, and with justice, go into many things that might not help legislation, some of which would not be very creditable to past administration. In the particular section to which Deputy Lynch's amendment has reference, we are not doing anything improper. We are doing something, I think, that is quite a proper thing for the House to do and for the Minister to ask the House to do. That is, affirming and standing over a judgment given in the High Court.
Mr. Lynch
You are putting two extra judges in the Supreme Court.
Mr. Lynch
You are reversing the judgment of the High Court when it is against you.
I am talking on this amendment. I said last night to Deputy Lynch in the House that unquestionably we got a 99 per cent. judgment in our favour in the High Court and that on the one point we were turned down——
Mr. Lynch
You are reversing that now.
On this amendment, no. I agree with the pious opinions generally expressed by all Parties and all individuals in the House, that retrospective legislation is undesirable and I endorse what the Attorney-General said about a year ago, as quoted last night by Deputy Lynch, but Deputy Lynch will remember that the Attorney-General said then, and others speaking on a similar topic have said at all times, that while they agreed that retrospective legislation was undesirable, they equally emphasised the fact that there are special cases and exceptions when it is necessary. These exceptions arose, I shall not say, frequently, but they did arise in the time of the last Government and they have arisen in the time of this Government. They possibly will arise at any time. I think this is one of the exceptions and that is the reason that we have to bring in this Bill. In this particular case we are not doing anything that I think the House as a whole need have any hesitation in endorsing.
Mr. Lynch
I shall just say this one word, that in any of the speeches made on that occasion nobody voiced the opinion that ad hoc legislation should be brought in to give a new application or a new interpretation to statutes that had long been given one particular interpretation in the courts—in one case for a period of 58 years. Nobody voiced the view that retrospective legislation should be applied in a case of that kind. Further, if the Minister were so satisfied with the judgment of the High Court, why did he prevent the litigants pursuing their case in the Supreme Court and try to have them fired out on a technical point?
That does not arise on this amendment.
Am I right, Sir, in thinking that we are allowed to discuss the general retrospective character of this Bill on this amendment, seeing that Deputy Lynch has said he is going to divide only on this amendment, and I think is going to withdraw all the other amendments?
Mr. Lynch
I am not going to move them.
If the other amendments are not to be moved, and the points which the Deputy wishes to raise are not to be repeated on the sections, of course they will be in order now.
That would mean, I think, Sir, that we can discuss more or less generally the retrospective character of this Bill on this amendment. The Vice-President has just made the point that the retrospective character of the Bill, in so far as it was referred to by Deputy Lynch, did not arise on this amendment. I make that point to start off. I stand up chiefly to call attention to the fact that, so far, in the course of this debate—during the Second Reading, and yesterday, and during the Committee Stage so far as it has gone to-day—we have had no viewpoint at all from the Attorney-General. I should like to know whether the present Attorney-General stands over what his predecessor has told us here in the House should be borne in mind by an Executive Council or by a Government which proposes to bring in legislation of a retrospective character. We were told by the last Attorney-General, as has already been pointed out by Deputy Lynch, that legislation of a retrospective character should only be introduced—I think those were the words used by the previous Attorney-General—in order to give force to something which had always been regarded as the practice in some particular sphere, and that only on the rarest of rare occasions should that weapon of retrospective legislation be resorted to at all.
In the instance under discussion here, quite the contrary is the case. I understand that since about the year 1877 or 1887 a certain view of the law was taken in this country. That view was upheld, as I understand it, by Mr. Justice Johnston in the High Court of this country. There was an appeal taken to the Appeal Court. That appeal was decided, as I understand it, on some technical ground, and the case had to be sent back to the High Court for the purpose of getting the fiat of the Attorney-General. That fiat was got. The law officer of the Government gave his fiat, and allowed this case to go on. The only result of that would have been that the case would then have come before the Supreme Court for its determination on the substantial questions under repeal. This is the time at which the Government thinks fit to step in. Those ratepayers of Listowel brought their case to the High Court; they would have the right to have brought it on appeal before the Supreme Court. This is the moment at which the Government chooses to step in for the purpose of preventing the Supreme Court of this country from adjudicating upon a point in regard to which—if one can gather anything from the terms in which the Bill is expressed —the ratepayers were on a 100 to 1 on certainty. They stepped in for the purpose of stopping the Supreme Court from expressing an opinion. As I understand the course of the case from those engaged on it, and from what I have heard in this House yesterday and to-day, the clear meaning of the word was that which was given to it by Mr. Justice Johnston. The meaning given to it was the clear and obvious meaning, and was the meaning given to it for the last 60 years. Now we are told by this legislation that it is to be deemed to have an altogether different meaning. In other words, the meaning attached to it for the last 60 years, and the meaning given to it by Mr. Justice Johnston, is now going to be deemed to be entirely wrong. A new meaning is to be given to it by the Government, and the ratepayers of Listowel are going to be saddled with, I think, a sum in the region of £12,000. That is being done by this vicious type of legislation which is called retrospective legislation.
I got up chiefly to try and prompt the Attorney-General to give us his views on this particular retrospective legislation. We do not want lectures here in the House on a general justification of retrospective legislation. I should like to hear justified the particular retrospective legislation which we are faced with here. Take this case of Listowel. There is no good in burking the issue, because we all know that this legislation is not brought in for any general purpose at all. We know it is brought in to defeat the judgment which the ratepayers of Listowel were going to get from the Supreme Court. I should like to hear from the Attorney-General his answer to the question as to whether he approves of legislation being brought in to defeat what were always considered to be the rights of litigants— not litigants who are about to litigate, but who had gone before the court and who had already got a judgment.
The Attorney-General
As it seems to be the desire of some members of this House that I should express my view, I would ask the indulgence of the House for a few minutes. In principle, retrospective legislation is to me as repugnant as it was to my predecessor. I desire to make that perfectly clear. But, as the Minister for Local Government has stated, practically every authority, whether he was the writer of a text-book or a judge, who has had occasion to refer to this matter of retrospective or retroactive legislation, has always or nearly always emphasised that the exception, where it is a reasonable one, is of just as great public importance as is the rule, that is, that the circumstances of a particular time or the circumstances of a particular place may render it necessary for a Legislature to enact retrospective or retroactive legislation.
But not to defeat a judgement that is going to be given.
The Attorney-General
I am glad that my friend Deputy McMenamin will not permit me to forget anything. I mean to come to that, and I trust that the Deputy will again remind me if I forget it. I have said that I share the general view of lawyers, and the view I should say also of non-lawyers, that retrospective legislation, generally speaking, is to be deplored, but it is desirable that the House should realise the extent to which the doctrine to which I have just alluded applies to this Bill. Clause 9 of this Bill, relating to Section 203 of the Public Health Act, and Clause 11, relating to the interpretation of Section 3 of the Local Authorities (Financial Provisions) Act, 1921, undoubtedly express a view which is inconsistent with the view of the High Court, but in all other respects the Bill, in so far as it refers to litigation, is, so to speak, an affirmation of the decision of the High Court. I speak subject to the correction of Deputy Fionán Lynch, who is peculiarly competent to correct me in regard to this. He represents Kerry. He also was one of the distinguished counsel who conducted the action on behalf of the gentlemen in Listowel. He will correct me, I trust, if I am wrong when I tell the House that the interpretation of Section 238 of the Public Health (Ireland) Act, 1878, affected only a relatively trivial and insignificant sum of money as regards the town of Listowel. As I say, I invite correction in connection with that. I do not want to weary the House with technicalities, but, in so far as Clause 9 purports to overrule the decision of the High Court, surely no Deputy in this House will contend that it is not in the public interest. I wonder what would be the reactions of Deputies opposite if the Minister for Local Government were to stand up here and, to their surprise, say that he was willing to jettison Clause 9? Clause 9 is giving to that section of the Public Health Act, 1878, a liberal interpretation as regards local authorities; that is to say, that urban authorities interested in public health services will be able to borrow slightly more by virtue of the interpretation that will be given by Clause 9 than they could otherwise borrow.
Will any Deputy on the other side of the House, who represents a constituency in which there is a cry and a clamour for public health services, suggest that these services are to be cut down by abandoning this clause? Deputy Lynch, Deputy McMenamin, Deputy McGuire and, I am sure, other Deputies also, know that if any interpretation other than the interpretation proposed in Clause 9 were given to Section 238 of the Public Health Act of 1878, it would break the heart of every town clerk who had to deal with this matter, because owing to the trend of legislation since 1878 which, after all, is a long time since, assessable value has come to be very often quite different from net annual value. There are allowances for new houses, particular hereditaments, and so on, which I need not go through, and it would mean that a town clerk or other officer interested, instead of taking up the figure for the net annual value, which is a figure easy to arrive at, would have to analyse the valuations of all the rateable hereditaments in his area in order to find out what was the assessable value of each.
But that justifies extravagant borrowing in the past.
The Attorney-General
Extravagant borrowing? I am not quite sure that I understand what the Deputy means. I am now dealing only with Clause 9 and I have told the House, and I have invited correction, that Clause 9, in so far as it affects the Listowel litigation, affects it only to an insignificant extent. There were quite big figures in the Listowel litigation.
It is only putting a limit to the roof. Section 11 takes off the roof.
The Attorney-General
Oh, now, I am sure the Deputy does not mean that. He knows that that is not so. He knows that the difference in any provincial town in Ireland between the assessable value and the net annual value may be only a trifling difference that will arise in respect of new houses and certain other hereditaments, and that it can affect the borrowing power only to a trivial extent. In so far as it would affect it, however, if the interpretation of the High Court were taken, it would, first of all, restrict to that small extent the borrowing power of the local authority for public health services. That is, perhaps, only of small importance, but it would also involve the responsible official of the local authority in a detailed examination of the various rateable hereditaments within his area—a game which, I think, even Deputy McGuire would concede, would not be worth anything like the price of the candle.
Deputies, apparently, have been greatly impressed by what they conceive to have been the view of the late Sir George Vanston, who was a civil servant and an adviser of the Local Government Board. Their gullibility seems to have increased as the debate proceeded. The latest that we have heard now is that courts since 1878 have given it a certain interpretation. Never, from the year 1878—and I have gone to some trouble to make sure of the fact—never since the year 1878 until the year 1936 did any court give it that interpretation — never; but here is what so impresses the Deputies; what they think to be Sir George Vanston's view. Vanston wrote a book on Public Health Law. He carefully guarded himself from adopting the view that the Deputies opposite think so irresistible and so invulnerable. Here is what he said, and these are the words of his note to the section:—
"The Local Government Board interpret ‘net annual value' to mean the assessable value for the purpose of a rate, and reckon property subject to different rating, as under Section 226 of this Act and Section 62 of the Towns Improvement Act, 1854, at one-fourth only of its annual value. In the English Act, the words are ‘assessable value for two years,' which are construed to mean twice the assessable value at any given time."
There, the learned commentator makes it perfectly clear that he is attributing the view to somebody else. He does not, either directly or by implication, suggest——
Does the Attorney-General suggest that seriously? Vanston was the adviser to the Local Government Board.
The Attorney-General
Well, I am sure that when Deputy Lynch has been in the profession as long as I have been now—unfortunately, a very long time, 28 years—he will learn that, frequently, the client rejects the advice of his legal adviser, and that frequently the client is right. However that may be, I have read the note and it speaks for itself. It is, at most, the view of the Local Government Board, acting at the beck and the nod of the Treasury in Whitehall. The Treasury Clerk in Whitehall, of course, was anxious to restrict the borrowing power of the local authority in Ireland as much as he could. The Treasury Clerk in Whitehall was more familiar with the words of the English statute, which are undoubtedly "assessable value," than with the words of the Irish statute—words which, as we have heard, would appear to have been interpolated during the passing of that Bill.
What view did Judge Johnston take of those words of Vanston's?
The Attorney-General
I thought I had already told the House that Judge Johnston had stated in terms that he had read the note in Vanston's book on Public Health and that he, Judge Johnston, was of the opinion that that was the correct construction. I thought I had made it perfectly clear that clause 9 is a clause that undoubtedly purports to overrule the view taken by the High Court. Possibly, I should not occupy more time in regard to this, but here is what the learned judge in the High Court said— I quote from the official report of his judgment:—
"In Sir George Vanston's valuable work upon the law as to Public Health (1913) (page 266), he says:
‘The Local Government Board interpret "net annual value" to mean the assessable value for the purpose of a rate.'
Notwithstanding the ingenious and, indeed, persuasive suggestions that have been addressed to me on behalf of the defendants, I cannot at this point of time adopt any other construction. I do not know whether the defendants admit that in the light of that construction of the Act there has been an excess of borrowing by the council, but if it is necessary I shall direct an inquiry before the Examiner as to the amount of the excess, declaring that the limit of the borrowing power was twice the assessable value for the purpose of a rate."
After all the hearing before the learned judge, it was by no means clear whether this was more than a mere academic question, because it was so utterly trivial. It was by no means clear whether it would come out on one side or the other. The words of the learned judge are not very forcible; that at this point of time, as it has been acted on for a certain period, it will not be upset. However, I invite the Deputies opposite to try to persuade the people in any town in Ireland that this is not desirable. Deputy Lynch knows that he dare not suggest in any other town in Ireland that that clause should not be inserted. He knows that well.
The Attorney-General
As regards Clause 11—the interpretation of Section 3 of the Local Authorities (Financial Provisions) Act, 1921—I cannot really add anything, and it is unnecessary to add anything to the words of the Minister for Local Government and Public Health here yesterday afternoon in which he informed the House of something that is within the recollection of the older members here. That Act of 1921 was passed at a time when it was very desirable that the local authorities should be able to make temporary borrowings to meet what one may, in popular phrase, call current liabilities. It was found that that Act worked well. The consensus of opinion was that it worked satisfactorily. Will the Deputy suggest that there is anything outrageous in bringing the law into accord with what is the general desire of every local authority in Ireland? Let me remind the House—and this is really all I have to say in this connection—that the Minister stated here yesterday what is a fact, that all these powers of borrowing are subject to the overriding sanction of the Minister. One would have thought from what has been said here that local authorities can play ducks and drakes in the matter of borrowings. Of course, they cannot. They must get the sanction of the Minister.
It is not my intention to speak at further length on this matter. All I say as regards this other clause is that the acts of a local authority that has been functioning over a period unchallenged by any constituent are as regards the public in general not to be deemed invalid. That is not a new principle. It is a very old principle. How is the contractor, who enters into a contract to build any of the much needed houses in any town in Ireland, to inquire whether the niceties of the election law had been complied with six years previously—because the root of the evil in Listowel goes back to 1925? Is everyone who enters into a contract to lay pipes or do any other work for a local authority, or is the banker who lends money to a local authority, going to inquire into the niceties of an election held six years previously? I ask that question because the public have been told that one of the bankers, in perfect good faith, lent money to this council that had been carrying on the affairs of Listowel during a number of years. Does any business man on the other side of the House advocate that the acts of a body carrying on in that way for years; carrying on in so far as it has control over local government, with the aid of public officials, ought to be repudiated on some subtlety? Of course, the High Court has said they are not. Deputy McGuire speaks as if out of the horse's mouth he had got information, as it were, as to the result of the race in the High Court. Surely Deputy McGuire would be anxious to take back some of his observations as to the probable result of the appeal. First of all, it ought at least be a matter of some importance to the main question in this House that the High Court has decided in accordance with the principles in this Bill. Surely that is a matter of some importance.
The Attorney-General
Why the Bill. I asked Deputy McMenamin to remind me of something. I have been trying hard to forget something. The Minister gave the Listowel people their chance. They were able to bring their action. They brought their action in an inartistic and irregular way. They wasted a year and they wasted the public time of the court. They brought their action in a rickety fashion and it collapsed through their own fault.
Who raised the technical point?
The Attorney-General
What does Deputy McGuire mean when he asks who raised the technical point? What is a barrister's duty? What is the Deputy's conception of the duty of an advocate? Is it Deputy McGuire's conception of the duty of an advocate employed to fight his client's case and to raise any legal point in favour of his client than he is to swallow that point and not raise it in court? What is the Deputy's conception of his duty towards the court? Is it his conception that a barrister is merely a person who snatches fees? The barrister has a duty not only to his client whose interests he has to safeguard but to help the court to the best of his ability in arriving at a decision as to what the law is.
Has he ever refused to raise technical points on law matters in order to have the merits dealt with?
The Attorney-General
The Deputy is in considerable practice. He is entrusted with a number of cases in the different courts. The Deputy must have within his experience a knowledge of the way that courts are disposed to deal with merely obstructive points. They generally find a way to brush them aside. Generally speaking, if a court yields to a point of law it is a good point. I was answering Deputy Lynch. The people of Listowel got time. Apparently they would need eternity. They would want to bring action after action. What guarantee is there that their present action is not a rickety action also?
Mr. Lynch
Why did you not chance it?
The Attorney-General
It was because, as the Minister pointed out in introducing this Bill, we want to get on with the work. If the people of Listowel had the same talent for getting on with the work of procuring the completion of the houses standing there windswept, not quite finished for over two years; if they had the talent for getting the people who want houses in Listowel into these houses——
Mr. Lynch
Now we are getting the sob stuff.
The Attorney-General
If they had the talent for accepting the £2,000 needed to link up their waterworks with the other scheme, it would be better for the townspeople than this flair they are displaying for litigation. In so far as this Bill makes the acts of an ostensible council lawful, there is a precedent for that and a well-known precedent which goes back as far as 1863, in the Drainage Act of 1863, the statute which governs drainage works all over the country, I will read for the House words which are familiar to Deputy McMenamin and me. In that Act provision was made for the election of boards for the drainage of the country. There are technical provisions as to what the qualifications of the elector are to be, the precise time when the election is to be held, who is to be eligible for election and what their powers are. In Section 13, sub-section (8), there is laid down this immensely important provision:—
"All acts done by any meeting of a drainage board or by any committee of a drainage board or by any person acting as a member of a drainage board, shall, notwithstanding it may be afterwards discovered that there was some defect in the appointment of any such board or person acting as aforesaid, or that they or any of them were or was disqualified, be as valid as if every such person had been duly appointed and was qualified to be a member."
Mr. Lynch
That was embodied in an Act.
The Attorney-General
Why should it not be enacted? Why should not honest men, honestly entering into contracts with people carrying on the business of a town, unchallenged by the ratepayers or by the inhabitants, be they bankers or building contractors as in Listowel, or the humblest person that might undertake work for the community, be entitled to contract with the body carrying on there unchallenged and to enforce these contracts in the ordinary way?
Question put: "That the proposed sub-section stand."
The Committee divided: Tá, 61; Níl, 49.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Briscoe, Robert.
- Concannon, Helena.
- Cooney, Eamonn.
- Corbett, Edmond.
- Corish, Richard.
- Corkery, Daniel.
- Corry, Martin John.
- Crowley, Timothy.
- Daly, Denis.
- Derrig, Thomas.
- Doherty, Hugh.
- Flinn, Hugo V.
- Flynn, Stephen.
- Fogarty, Andrew.
- Geoghegan, James.
- Gibbons, Seán.
- Goulding, John.
- Harris, Thomas.
- Houlihan, Patrick.
- Jordan, Stephen.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kennedy, Michael Joseph.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Moore, Séamus.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- Neilan, Martin.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Dowd, Patrick.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C.
Níl
- Anthony, Richard.
- Beckett, James Walter.
- Bourke, Séamus.
- Brennan, Michael.
- Broderick, William Joseph.
- Brodrick, Seán.
- Burke, Patrick.
- Coburn, James.
- Cosgrave, William T.
- Costello, John Aloysius.
- Curran, Richard.
- Daly, Patrick.
- Davis, Michael.
- Davitt, Robert Emmet.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doyle, Peadar S.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Holohan, Richard.
- Keating, John.
- Lynch, Finian.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- McGuire, James Ivan.
- McMenamin, Daniel.
- Morrisroe, James.
- Morrissey, Daniel.
- Murphy, James Edward.
- Nally, Martin.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Mahony, The.
- O'Neill, Eamonn.
- O'Reilly, John Joseph.
- O'Sullivan, Gearóid.
- O'Sullivan, John Marcus.
- Redmond, Bridget Mary.
- Reidy, James.
- Rice, Vincent.
- Roddy, Martin.
- Rogers, Patrick James.
- Rowlette, Robert James.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and O'Leary.
Question declared carried.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 3:—
In sub-section (2), page 4, after paragraph (c), to add two new paragraphs as follows:—
(d) the contractor shall not be concerned to inquire whether any meeting of such local authority was or was not properly convened or constituted, or whether any particular notice to the members of such local authority was or was not duly given, or whether the proceedings at any meeting of such local authority were or were not legal and regular;
(e) where such local authority could not lawfully make such contract without the sanction or the consent of the Minister, and such sanction or consent (as the case may be) was given or purported to be given by the Minister, the contractor shall not be concerned to inquire whether any statutory condition precedent to the giving of such sanction or consent was or was not duly complied with, and the contractor shall not be prejudiced or affected by the fact (if it exists) that any such condition precedent was not complied with by the person (whether the Minister, such local authority, or any other person) charged with the duty of complying therewith.
The same principle underlies this amendment as amendment No. 1 which we have discussed.
Amendment agreed to.
Amendments Nos. 4 to 9, inclusive, not moved.
Section 3, as amended, agreed to.
Section 4 agreed to.
SECTION 5.
Amendments Nos. 10 to 18, inclusive, not moved.
I move amendment No. 19:—
In sub-section (1), page 6, to add at the end of the sub-section a new paragraph as follows:—
(e) in any case, as on and from the passing of this Act or the expiration of such year (whichever is the latter), the persons so declared to be elected and no other persons shall be deemed to have been elected at such election as members of such local authority.
Section 5 is intended to provide that where an election of members is being held and the returning officer has declared what persons have been elected at that election, and the correctness of that declaration has not been questioned for a period of one year, the declaration must be taken as correct. It has been pointed out that the section, as introduced, does not cover the case where, after the expiration of the year, it is contended for the first time that the returning officer did not declare all the persons to be elected who were entitled to be so elected, and the amendment is introduced to make that position clear.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 20:—
To add at the end of the section a new sub-section as follows:—
(3) All expenses incurred by the council of a borough or an urban district under this section shall be raised and defrayed as part of the expenses of such council under the Public Health Acts, 1878 to 1931.
This amendment is to make it clear that all expense in connection with the provision and maintenance of a town hall is to be raised and defrayed as part of the expenses of the local authority under the Public Health Acts.
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.
I move amendment No. 21:—
In sub-section (2), line 58, after the word "sixpence" to add the words "in the pound".
This is a drafting amendment.
Amendment agreed to.
Amendment No. 22 not moved.
Question proposed: "That Section 7, as amended, stand part of the Bill."
Has the Minister any idea what the rate will be in the case of Listowel?
I could not say. There have been arrears, I think, over two years and the rate has not been struck. I could not tell the Deputy what the rate would be at a certain time, if it were struck.
Mr. Lynch
About 50/- in the £, if they are to pay for all this.
That would clear off the whole of it. Is not the valuation £5,000? £12,500 would clear off the whole lot.
It is not £12,000, but £9,700.
Question put and agreed to.
Sections 8 to 10, inclusive, agreed to.
SECTION 11
(2) The payment by a local authority of annual or other periodical instalments of principal and interest or principal only or interest only in respect of money borrowed by such local authority shall be and be deemed always to have been current expenses of such local authority within the meaning of Section 3 of the Local Authorities (Financial Provisions) Act, 1921, as amended by subsequent enactments, and accordingly it shall be and be deemed always to have been lawful for a local authority to borrow or re-borrow under that section for the purpose of paying any such instalment.
Amendment No. 22 not moved.
I move amendment No. 23:—
In sub-section (2), line 36, after the word "authority" to insert the words "and the payment of arrears of any such instalments."
Section 11 enables the local authority to borrow temporarily for the repayment of instalments of principal and interest in respect of borrowed money. This amendment is intended to make it clear that the section confers power to borrow temporarily for any arrears of instalments of loans that have accrued.
Mr. Lynch
I am sorry the Attorney-General is not still here, because I should like to have his view on the question as to whether this does not mean that all limit on borrowing power is now removed in fact. It would have been more honest and more straightforward if the Minister brought in legislation saying quite clearly that in future, subject, of course, to the sanction of the Minister, there is to be no limit to the borrowing power of local authorities. That is what this effects, because under this Act passed for the purpose of allowing borrowing for the purpose of defraying current expenses during a year, it is now allowing current expenses to mean not only what is generally accepted as being current expenses proper, but the repayment of instalments of old loans. When a local authority finds that it has gone to its limit of borrowing under the Public Health Acts, it can, if the Minister sanctions it, borrow under this 1921 Act to repay all the loans which it already has had and which brought it up to the limit of borrowing. It can repay that out of the new borrowing under the 1921 Act and start all over again. When it reaches the limit, it can borrow again. That is, in effect, removing the limit imposed by the Public Health Act, 1878, on the borrowing powers of local authorities. It was idle for the Attorney-General to stress that this is subject to Ministerial sanction. There was always that subjection to sanction and the limit was imposed for some reason. That limit is now removed and I should like the House to appreciate that.
I do not place exactly the same interpretation on this section as Deputy Lynch has placed upon it, though I admit it may be open to his interpretation. I should like, however, the Minister to look into the section before finally disposing of the measure, for reasons which I shall state. Let us assume that a council is elected on the 1st January. That council makes up its estimate of the sum that will be required for the year. Finding that that sum will be unpopular in the town, they eliminate from their estimate portion of the interest and principal charges which they have to meet. They say: "We will borrow for these during the course of the year, as we are entitled to borrow for current expenses." In that case, those current expenses would have to be met the following year and the same thing might happen, so that you would have a hanging gale, against which this section provides no safeguard. Members of a local authority, when they find that a big rate is necessary or that they have to meet some expenses not provided for by their predecessors, sometimes have objection to striking a sufficient rate. It appears to me that there is a loophole in the section in that respect. Although there is no direct obligation on councils to provide the full sum of money necessary in any year, it has been almost universally accepted that they should make full provision for their expenses. Where the sum to be raised is very big, effort may be made to escape liability. The Minister should, before the Report Stage, examine this section so that a loan for interest and sinking fund charges would only be permissible when the estimate for the expenses of the local authority had included sums for that amount and would not be permissible where no such provision has been made. That would probably meet the case.
That point is, I think, covered. Councils can borrow only for current expenses. The final safeguard would be that these borrowings to cover current expenses and the question of the striking of a sufficient rate would be subject to the supervision of the Minister for the time being, through his officials. Councils cannot borrow for instalments that may become due in the future but they can borrow for current expenses, which include instalments for sinking fund and interest in respect of any loans raised in the past.
The Minister has not seen my point. If the council does not make provision in its estimate and, consequently, does not strike a rate to meet interest and sinking fund on a loan, the interest and sinking fund charge falls to be paid. The Minister, I take it, could not object to the council borrowing in respect of that.
If the money were due to the Board of Works we should certainly ask them to raise it.
That is the point. I expect most of this money is due to the Board of Works. Borrowings ought not to be made legal unless provision is made in the estimate and in the rate to meet those charges. They are current charges but, if the council does not make provision for them, they do not lose their character of currency. The council ought to be informed beforehand that it will not be lawful to obtain sanction from the Minister or borrow unless provision is made in the estimate and in the rate for those charges.
The Deputy is quite right. Possibly he has had experience, as I have had, of cases in which local authorities did not propose to provide for such charges when striking their rate. We have had to hold up the rate and tell the local authorities concerned that we would refuse to let them go ahead until such time as they made provision for all their liabilities, including loan charges.
May I ask if it was not already possible for a council to borrow to meet any liability—that borrowings were not restricted to particular services, but were open for all services?
Is it necessary to make provision for this particular service—interest on sinking fund?
It is found necessary to have legislative authority in connection with arrears on loans.
Amendment agreed to.
Amendment 24 not moved.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 25:—
To add at the end of the section a new sub-section as follows:—
"This Act shall continue in force until the next election for local authorities in so far as it relates in certain cases to the validation of—
(a) borrowing by local authorities;
(b) contracts entered into with local authorities;
(c) the election of a particular member or of members or a statutory proportion of members of a local authority and
(d) the payment as current expenses by a local authority of annual or other periodical instalments of principal and interest or principal only or interest only in respect of money borrowed by such local authority."
The purpose of this amendment is, as appears on its face, to end the operation of this Bill after a particular period. This Bill was found necessary to deal with a very abnormal and isolated situation. I do not think that in the history of local government there has been anything like it and I hope that, in our time, there will not be anything else like it. I maintain that this type of Bill, to legalise for a certain period illegally constituted authorities, is a sort of invitation to illegal constitution, provided the local authority can hide its illegality for 11 or 12 months. I am not satisfied that the Bill, in itself, will prevent what I would not describe as illegal trafficking, but which is something like it. During the first 11 months of the life of an illegally constituted authority, that authority is quite free to enter into contracts, quite free to borrow money and to do everything that a legally constituted council could do, but if inside the twelfth month some persons take action in the courts they can upset the whole council and have it declared illegal. I do not think the Bill makes it clear as to what is the position with regard to the acts and things done by the council in the meantime. I think that a Bill embodying a continuing enactment of this kind is really a reflection on Irish public life. The Bill is necessary to deal with one isolated abnormal incident.
I would like to know whether a man who enters into some contractual obligation with a local authority is immune under this Bill. Possibly the fact that he had entered into the contract is not publicly known. Suppose he gets elected to the council. If he is able to hide the fact for 12 months that he holds a contract under the council he gets away with it. I do not think that is good enough. On the whole, the Bill does not lend itself to general application. I think that if the measure were restricted to deal with the Listowel case, which obviously the Minister wants to deal with, it would be quite enough. Then, after the next election, let the people of Listowel, having got this lesson, take the matter in hands themselves and have their business done properly and legally. I do not think that an isolated instance of that kind justifies the bringing in of a measure like this, and of making it a continuing enactment that is to operate in every country in the Free State and against every local authority. If the Bill does succeed in putting things right in Listowel, and if they continue right there, then I think we ought to drop this Bill after the next elections have been held.
I would be sorry to think that this Bill or any of the provisions in it would be an invitation to local authorities or individuals to commit illegalities of any kind. I do not think that any such thing could be read into the Bill. There have been illegalities and illegal elections in the past. Election law is very intricate, and not every returning officer in the country, or every official of a local authority, is familiar with every aspect of it. It could happen that a council, which had been elected in a bona fide way, might be upset on some really trivial technicality. That could happen, and it would not be in the best interest of a town that trivialities could be raised after the lapse of 12 months either in regard to an individual or a council.
Deputy Brennan talked about individuals entering into contracts. There are other laws that cover any illegalities that a member of a local authority might be guilty of in the matter of entering into contracts with a body of which he was a member. There are provisions in this Bill that have been felt to be necessary for a considerable time. The greater number of them, I agree, have a bearing on the one case that has been referred to, the Listowel case. But there are provisions in the Bill which I think will be found useful and helpful to local authorities and the members of them. I think that the Bill in itself is a necessary one, irrespective of the case that it deals with in particular. Deputy Cosgrave was not present last night when I was replying on the Second Reading, but I agree with what he said about the desirability of codifying local government law. I admit that is very desirable.
The officers in the Department have, during the last four or five years and even longer, been engaged on certain aspects of that work. They have already gone a considerable distance with regard to some important sections of local government law. I hope that before many more years have gone over our heads that this tedious operation of not only codifying the law, but of interpreting it in the light of modern development, will have been completed, and that it will be possible to put a measure dealing with it before the House for discussion and adoption. While that work is being done, it is necessary from time to time to come along with Bills of this kind to remove doubts and to overcome difficulties that have been discovered in practice as well as to help local authorities and the Department itself to do things which are felt to be desirable but which the law does not permit. There are two useful things, for instance, dealt with in this Bill. One deals with town halls and the other with the extension of boundaries. Both may be said to be small things, but they are important and useful. These occasional Bills are necessary and they may even be necessary after condification has taken place. I think the Bill itself as it stands has many useful provisions. All its provisions, I think, are useful and necessary, and I believe that it will do good and not ill.
I have the greatest possible sympathy for the Minister in endeavouring to get rid of the kind of festering sore that there was in Listowel. I think, however, that he could have done that without bringing in a measure of this kind which, as a continuing enactment applicable to every public body, is really a reflection on the rest of the country. If we had a codification of the local government law and it was found necessary to introduce legislation of this type in order to cover up illegalities that were taking place, I really feel it would be a reflection on the integrity of the people of the country. Possibly there would be some justification for a measure of this kind if you had the same kind of thing going on in parts of the country that took place in Listowel, but, thank God, no other instance of the kind can be cited. I really feel that this Bill, which is to be a continuing enactment applicable to the whole country, is a reflection on the integrity of the people.
As this measure stands now, if a man who was adjudged a bankrupt five years ago is elected to a local council on the 1st of January next, he will be validly and properly elected. Would the Minister say if it is intended under this Bill to qualify all persons, not otherwise qualified, when elected to a public body? There is a big list of them, including persons convicted of offences and so on. As far as I can judge from this measure, unless objection is taken within 12 months no further objection can be taken in that case. That is as regards that local authority. If the same individual were elected to another body he would still have his 12 months to run. I do not know whether that was the intention of the Minister in connection with this Bill, but I should say it was not.
I think the Deputy knows the local government law. He knows that there are certain Acts on the Statute Books that disqualify people who are bankrupts or who have been convicted of certain offences or found guilty of certain acts, from acting as members of a local authority. They are liable to fines every time they have so acted and every time they have cast a vote. It is not the intention to qualify such persons or restrict the individual ratepayer from taking actions to test the validity of any such persons acting on a local authority. There are Acts in existence which this measure does not amend that would enable any ratepayer, any local authority, or the Department of Local Government, if it were so informed, to point out the illegality of an individual of the type referred to by the Deputy acting as a member of a local authority.
I assume the Minister has had the advice of the Attorney-General. I take it that an Act once passed here may be assumed to be the latest expression of the law. Listen to what is in this Bill:
And accordingly it shall not be lawful to institute in any court, after such expiration, any proceedings whatsoever questioning the validity of such election of such person.
Amendment No. 25, by leave, withdrawn.
Section 13 and the Long Title agreed to.
Bill reported with amendments.
I am hoping that the House will consent to take the remaining stages of the Bill now.
I suppose the Miniter can steamroll anything through, but I am afraid my last point is of more importance than the Minister thinks.
I asked my legal adviser in the Department of Local Government and he says I am on solid ground so far as my interpretation of what this Bill of mine means is concerned.
I have got only a melancholy recollection of what was said last night by Deputy Lavery, that is, that there are occasionally contrary views in the Department of Local Government.
Question—"That the Bill, as amended, be received for final consideration"—agreed to.
Question proposed: "That the Bill do now pass."
I do not think the Minister has told us—I could not find it in the Bill, it is possibly my fault, but I think the House should be informed—what happens in the case of a local authority which is illegally constituted and which, for 11 months, has been operating, signing contracts, borrowing money and doing other things it considers it is entitled to do, and then at the end of 11 months somebody brings the matter to the court and it is declared to be illegal. I am indicating what might happen to a local authority that was illegally constituted and that was, for 11 months after its election, immune. It made contracts and entered into other business arrangements, but before the 12 months were up some person took it into court and it was declared to be illegally constituted. What would happen in that case—how would the business they had done be affected?
All the business that it had done bona fide, all the contracts it had entered into bona fide, and all individuals to whom they had any obligation—their position is made safe and secure so far as all the liabilities and the contracts entered into by such a body are concerned. They would be regarded as legal and valid and binding.
Notwithstanding the fact that the reason for the disqualification was that they were not entitled to be elected in the first instance? It is not a case of some person being disqualified at the end of 12 months for something which happened. Here is a disqualification and the court decision is that they were not entitled to be elected. Is it to be still held that the business they did was quite all right?
The liabilities they incurred and the contracts they made would still be held to be valid.
What about the costs that were involved in this suit? Has the Minister agreed to pay them up to the time the action was stayed?
That was decided by the Supreme Court. The Supreme Court decided that issue.
I do not think they did, as a matter of fact. I am not quite sure. Deputy Lynch would be able to tell us, if he were here. I understood it went back to the High Court when they got the fiat of the Attorney-General. Perhaps the Attorney-General may be able to tell us.
The Attorney-General
Speaking from recollection, I may tell the House that the decision of the Supreme Court was to dismiss the appeal. They ordered the plaintiffs to pay certain costs, not the costs of all the parties— there were many parties to the action. The action was dismissed with costs. The plaintiffs sought and received the fiat of the Attorney-General to bring a new action and that new action has probably just started.
Are the briefs out?
Question agreed to.
