Local Government Bill, 1940—Committee Stage (Resumed).
Debate resumed on amendment No. 21 :—
To delete sub-section (1), page 11, and to substitute a new sub-section as follows:—
Where the appropriate Minister is satisfied that the holder of an office does not possess a qualification which has been declared (before the appointment of such holder to such office) under this part of this Act to be a qualification for such office, and it is in the public interest that the holder of such office should resign therefrom the appropriate Minister may require the holder of such office to resign within a specified period.— (Mícheál O Braonáin).
When the Committee reported progress I was referring to amendment No. 21, in which the Minister can lay down as the essential qualifications for a public servant, that he should have red hair and, therefore, dismiss him because he cannot dye it in time to satisfy the Minister's new regulation. I was directing attention to the fact that in the past, where a post in the public service has had to be filled by competition and examination, and the person responsible for filling the post desired to see a particular individual secured, it has been known that the particular individual's special qualifications have been examined and then there have been attached as conditions of appointment to the particular post in question just the qualifications that that particular individual has and that nobody else in the State happened to have.
You will find a gentleman being appointed as medical officer for Buttevant, and a proviso being attached to the appointment that the person to fill this office must have a degree in tropical medicine, because it so happens that one particular candidate for the post has a degree in tropical medicine, and that it is highly unlikely that anybody else going up for that post would have a similar degree. Those essential qualifications having been stipulated, all the form and paraphernalia of the Appointments Commission is set in force, and as the candidates present themselves they are eliminated one by one, until the unique candidate with the obscure degree emerges and is appointed, because he is the only man with this peculiar degree which has been declared by the requirements to be an essential qualification for the medical officer for Buttevant. If we are to extend that procedure further by saying that, when an officer is in possession of a post someone can go down and examine that man's qualifications from A to Z, and make a regulation that the only person fitted to retain the post is one who holds qualifications which the present occupant has not got, and then proceed to call on him under this Bill to resign, in order to make way for somebody else who may be in a position to show this qualification, that is introducing an element into the public services of this country—whether in local administration or central administration—which is extremely undesirable.
I do not suggest for a moment that it is the intention of the present Minister for Local Government and Public Health to bring in regulations of this character for the purpose I have outlined here, but I am saying that if, as the Minister himself says, the only reason the proviso is put in is to make provision for improvement in the event of some elaborate reorganisation being desirable in the future, cannot words to that effect be put in? There is a provision in the Ministers and Secretaries Act or some such measure where, if it is desired to superannuate a civil servant who is not coming under one of the usual schemes of superannuation, the Minister can do it provided he can prove that the superannuation of that officer contributes to the more efficient working of the department from which he is being superannuated, but there is placed on the Minister the obligation to prove that a specific purpose is served before the superannuation will be permitted by the Comptroller and Auditor General of the State. Surely there should be some provision in this Bill that, before the Minister calls upon an existing public servant to resign, he should have to satisfy some independent officer of State that this is being done in order to secure the more efficient or more economic administration of the department to which the official belongs.
I do not think anybody in this House will complain if the Minister takes power under a code of this kind to remove officers whose occupations have become archaic, and give them full compensation by way of pension, but the power to do that need not go so far as to have anybody removed simply by making a regulation that certain qualifications are essential to the occupant of an office which he knows that an existing officer has not got. It is quite true that no Bill introduced here can effectively legislate for the exceptional case, but there are certain underlying principles of legislation which should never be departed from, except in a time of emergency or when existing canons must be put aside to protect the State. We had an incident recently in connection with the Finance Bill, when the Minister for Finance on reflection abandoned the attempt to introduce proposals for retrospective taxation. From the feeling that went through the House it was felt that however future tax burdens should be met it was an unsound thing to make them retrospective. That should be the broad general principle of a Financial Resolution, and it should be the broad general principle in this kind of transaction, that where a man is doing a job according to the terms of the original agreement, it should not be in the power of anyone to require from him qualifications over and above those attaching to the office when he was appointed. It is common knowledge that a man of middle age, who is doing his day to day work, is in no way fit to acquire academic or other qualifications that might be reasonably looked for if a new tenancy in the office was contemplated. I suggest to the Minister that this amendment might be accepted, or the section withdrawn and recast so as to give power analogous to that of any Minister in regard to civil servants in the way of superannuation when a more efficient organisation is set up by the Government.
I might shorten this discussion by intervening to point out, as I did on the Second Reading, that this was a machinery Bill, to make permanent a number of temporary provisions, and to legislate for certain statutory orders that have been made already. In getting these temporary provisions or statutory rules into permanent shape, we found that certain interpretations were placed upon some of them, and that there were cases not provided for. An Act was passed here that a female officer getting married should be entitled to a gratuity. I believe the inference intended to be drawn, though it was not specifically provided, was that she should resign on marriage. This section, as well as having in mind changes arising perhaps from reorganisation, was intended to provide for the particular cases of women who got married, as well as for general reorganisation. I agree with the Deputy that it is very objectionable to bring in qualifications subsequent to an appointment, and while I cannot accept the amendment, if the Deputy withdraws it now, I will try to meet it on the Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 22, 23, 24, 25 and 27 are involved.
They have a bearing on it.
To some extent they will have. If they are let go now, before the Report Stage I will have them examined to see if there is a clash. The Bill having passed Committee Stage, if there is a clash, we can then make the necessary alterations.
Is the Minister moving the amendments now?
Yes. I move amendment No. 22:—
In sub-section (1), page 11, to add at the end of the sub-section the words "and, if such holder refuses to resign from such office or fails to resign from such office within the said period, may by order remove such holder from such office.
The Minister will find out if there is a clash before report?
The matter can be corrected on the Report Stage.
Amendment agreed to.
The following Government amendments were agreed to:—
23. In sub-section (2), page 11, to insert at the beginning of the sub-section the words "Subject to the provisions of the next following sub-section of this section."
24. In sub-section (2), page 12, line 1, to insert before the word "shall" the words "or has been removed from such office under this section."
25. In page 12 to add at the end of the section two new sub-sections as follows:—
(3) The provisions of the immediately preceding sub-section of this section shall not have effect in either of the following cases, that is to say:—
(a) where the holder of an office is required under this section to resign therefrom by reason of his not possessing a qualification declared under this Part of this Act before his appointment to such office to be a qualification therefore;
(i) the holder of an office (in this paragraph referred to as the first office) is required under this section to resign therefrom within a specified period, and
(ii) such holder either complies with such requirement in that period or is removed from the first office under this section, and
(iii) the relevant local authority, before such resignation or removal (as the case may be) from the first office, offers to appoint such holder to another office the salary and emoluments of which are not less than those of the first office, and
(iv) such holder, before his resignation or removal (as the case may be) from the first office, refused or failed to accept such appointment, and
(v) the position of such holder would, in the opinion of the Minister, not be materially altered to his detriment if he were transferred from the first office to such other office.
(4) For the purposes of the application of this section to a person holding office immediately before the commencement of this section, every (if any) qualification which was prescribed under the Act of 1926 for such office before the appointment of such person thereto shall be deemed to have been declared under this Part of this Act before such appointment to be a qualification for such office.
Section 24, as amended, agreed to.
Where the appropriate Minister—
(a) deems the holder of an office to be unfit for or incompetent to discharge the duties of such office, or
(b) is satisfied that such holder has refused to obey or carry into effect any order lawfully given to him as the holder of such office, or
(c) is satisfied that such holder having been required under the immediately preceding section to resign from such office within a specified period, has either failed to resign from such office within the said period or refused to resign from such office,
the appropriate Minister may by order remove such holder from such office.
I move amendment No. 26:—
To delete paragraph (a) and to substitute a new paragraph as follows:—
(a) is satisfied after due inquiry that the holder of an office is unfit for or incompetent to discharge the duties of such office, or
My fears about this section are that we are not going to have any statement from the Minister as to the reasons why he is dissatisfied with an officer. If an official can be peremptorily discharged without any reason being given, it is a bad position and, from my reading of the section, it appears that that will be the position, if it passes in its present form. If the Minister deems a person unfit to hold a position there is some valid reason and I maintain that somebody is entitled to know it. We had a certain experience where, without any reason being given, a very high official was discharged, and that caused very grave dissatisfaction and a feeling of insecurity. I do not want that to happen again. The Minister should be able to say when he deems a certain person unfit to hold office.
We had this matter on the Second Reading. It is not necessary to have "due inquiry" in every case. As Deputies are aware, what happens is that when it comes to the knowledge of the Department that something is wrong in the ordinary way there is due inquiry made by an inspector. I assume that what the Deputy has in mind is the holding of a local or public inquiry.
There is always an inquiry where an official is suspended. Take a case where a person is charged with embezzlement and convicted by a court. There is no point in having another investigation. In every other case when something comes to notice, if it is a serious matter, the officer is suspended, and the practice is that he is given an opportunity to send in an explanation or answer the charge. Take a case where moneys have been embezzled, as often happens, and a person is convicted by a court, it would be only waste of time to have an inquiry then.
What is the present position?
When the auditor reports that there is something wrong, if the matter is serious enough, the officer is suspended. He then gets an extract from the auditor's report or the substance of the charge made by the auditor, and is asked for an explanation.
Do the councils concerned get notification simultaneously?
Who suspends the official?
If the officer fails to make a satisfactory explanation, the Minister can proceed to remove him by sealed order?
Is there anything unduly cumbrous about that procedure? What are we going to save by this new power? The only thing you are going to save is the procedure of notifying the officer, and the reason why the Minister is dissatisfied with him—of giving him a few days to make whatever case he can. If he fails to make that case, then he is removed. I agree with the Minister that in practice, in 99 cases out of 100, powers of this kind would not be abused. May I be excused for intruding on the House an anecdote to illustrate my point? My grandfather told me that when he went up to the court of appeal he found that the procedure there was extremely tedious and slow. He complained to his colleagues on the bench that they took a long time to get through their business. The Chief Justice, who was presiding, said to him: "What you have got to remember, judge, is that in this court you have not only got to do justice, but you have got to persuade the appellant that he has got justice."
Now if you are going to try a man— and mind you this means trying a man on the grounds of incompetence to discharge his duties, or of unfitness for his position, and he is in a sense on trial—you have not only got to do substantial justice, but you have got to satisfy everybody that substantial justice has been done. Surely, it is the very essence of doing substantial justice that the person to be condemned should be heard, that he will, at least, be told where he has fallen short, and will be afforded the opportunity of making representations to the Minister, or of giving an explanation, as to why he fell short. If the Minister, having perused that, makes up his mind that the explanation is insufficient, and consequently decides to dismiss the official, then, at least, everybody knows that the man has had the opportunity of making his case.
All of us in this House are familiar with the person who approaches one and complains that some grave injustice has been done to him, the person who says that the proof of that is that he has never been allowed to state his case. The most experienced one amongst us will have felt, I think, that where a person has been able to convince us that he has never been allowed to state his case, it was rather unfortunate that, before a final decision was taken, the man was not at least heard. The Minister has all the powers he requires at the present time to remove an unfit public servant. The only thing he is doing by this section is to short-circuit the procedure. Will the members of this House tell me that they want this precedure short-circuited? I do not. I think that, if you are going to remove a man from his present position of emolument on the ground that he is unfit and incompetent, we can well afford a few extra days to demonstrate to that man, to his neighbours and to everybody else that he has had a fair trial. I can sympathise with busy civil servants who are anxious to expedite public business and who always want the shortest way to their objective. I can sympathise with the layman going into a court of criminal law, feeling that there is a lot of abracadabra going on there that could well be dispensed with, but, nevertheless, those learned in the criminal law, and experienced in jurisprudence, will point out that the slow, solemn and involved procedure of the court of law which is determining a man's guilt or innocence, is of very great value in that it provides to him the utmost possible opportunity of stating his own case. Whatever penalty be inflicted upon him, his neighbours and the public will have an easy conscience that the man got no more than his deserts. Now, here is a very much shorter process which is being made even shorter still. What Deputy in the House would deny to a public servant, who is about to be dispensed with on the grounds of incompetence or unfitness, the right to make his own case? If all of us on all sides want him to have that right, why will not the Minister leave it to him? Does the Minister want to deprive that public servant of the right to state his own case? If not, what is the purpose of the section?
I do not think the section goes as far as the Deputy seems to think it does. Under the Local Officers and Employees Act of 1926, there had to be an inquiry immediately after suspension. This section does not repeal that. If you did not have an inquiry, and did not inform a person of the reasons why he was being removed, I think that the courts, if appealed to, would hold that such a course was against natural justice. Under this section the person will be informed of the reasons why he is being suspended. When a man is suspended —I am not thinking now of cases of embezzlement or charges of that kind— he is asked for an explanation. It is only when the department is satisfied that the explanation is not sufficient; in other words, that it is not an explanation at all, that he is removed from office.
Apart from officials charged with embezzlement, or with some other serious misdemeanour the procedure in the case of the ordinary official of a local authority who is suspended is this: that under the 1926 Act a sworn inquiry is held. It is only as a result of that inquiry that the official can be removed from office. Does this section propose to alter that? The Minister put the case that if another procedure was followed, the courts might hold that the action taken was against natural justice. I think that even if there was an omission in the 1926 Act the House might very well give way to the suggested amendment of Deputy Brennan. The implication in it is, that before an official is removed, he will have the opportunity of either putting his case before a court or before a sworn inquiry. I think the amendment is a reasonable one. After all, a man's means of livelihood depends upon the position he holds, and he ought not to be removed until a full inquiry has been held into the whole matter.
The Minister's defence of this section is based on the 1926 Act, and he relates that to the case of an official who is suspended. The suspension referred to there requires that a certain procedure be followed. Surely this section, as it stands, does not deal with a suspension at all. It deals with an immediate dismissal without any inquiry.
With regard to the point that has been raised about natural justice, there is nothing in the Constitution to prevent us from legislating against natural justice. A right which a citizen would have, by implication, to natural justice we can withdraw from him by a specific enactment. If we say specifically "may, by order, remove the holder of the office from such office if the Minister deems the holder of the office to be unfit for or incompetent to discharge the duties of such office," no court in Christendom would hold that, that statute notwithstanding, the Minister might not remove the officer if he deemed him to be incompetent. I fancy that, if I went into court, having been removed by the Minister under that section, all that counsel representing the Minister would have to do would be to produce a sealed and certified copy of the order deeming me to be incompetent and that would end the proceedings.
The practice has been that, where a man is found unfit for his position, he is suspended. That is usually done on the report of an auditor or some document of that kind. When he is suspended, the 1926 Act operates and there must be due inquiry. This section does not take away his rights under the 1926 Act.
Provided there has been an initial suspension, he comes under the 1926 Act. But suppose there is no initial suspension and a decision is taken by the Minister that the person concerned is incompetent or unfit and he is removed from office under Section 25 of this Bill, the 1926 Act never begins to function at all. Deputy Brennan's proposal is to bring this section into line with the 1926 proviso so that, even if there is not an initial suspension, the inquiry-machinery of the 1926 Act must operate before the Minister makes up his mind as to the occupant's competence or fitness for the office. That seems reasonable enough. Will the Minister consider it?
I shall consider it between now and Report Stage, but I feel that it is not necessary.
Surely, the Minister sees the point.
I see the point, but it never arose in that way.
Suppose I were Minister to-morrow and the devil unduly tempted me, so that I desired to do wrong-inconceivable as the thought may be to the present holder of the office-this section empowers me to do wrong. I want to put a statutory duty upon myself, in the event of my ever being Minister for Local Government and Public Health, to do what is right so that, if the devil should ever tempt me, the Local Government Act, 1940, can be set in motion against me for the protection of the civil servant whom I am attempting to rob.
I could do that under the amendment, too.
Between now and Report Stage, you can improve the wording of the amendment. All I want is that, whether the Minister initiates proceedings by suspension or determines he will proceed to remove the officer forthwith, either procedure will be preceded by a sworn inquiry at which the officer may make whatever case he wants to make and, on the findings thereof, the Minister can make up his mind and act accordingly.
I do not think that Deputy Brennan means to have a sworn inquiry.
My contention is that the Minister is placed in a new and strengthened position by this Bill as contrasted with the 1926 Act. All that is necessary is that the Minister should "deem" the officer concerned unfit. He need not give any reason for his opinion and there need be no inquiry.
I appreciate that the Minister will look into the matter between now and next stage, but there is one other thought I should like to put before him. His objection to Deputy Brennan's amendment is that, in a case of embezzlement, or similar offence, tried by the courts, a further inquiry should not be necessary. He has given his own objection away because a person guilty of embezzlement would surely be suspended and, under the 1926 Act, he has to hold an inquiry. It seems to me that the objection to Deputy Brennan's amendment is, therefore, gone.
Under the 1926 Act, the suspension must take place before the inquiry is held. Suppose the local authority do not act as they should and fail to suspend the particular official, the Minister can hold no inquiry and cannot dismiss the official concerned.
The power to suspend is with the Minister.
So far as I know, the local authority must suspend.
It can be done either by a local authority or the Minister.
The Minister very seldom steps in until the local authority has acted. You can imagine a case where the local authority might be trying to shield the official for a very long time.
The Minister has all the necessary powers.
It would not be extraordinary for such a case to happen. I think the difficulty is that local authorities are never anxious to suspend an official, or have him dismissed because they feel that, once an official, he is an official for life and cannot be dismissed or lowered in his grade.
If the Deputy says much more, cats will come out of the bag that will astonish us all.
The whole purpose of the amendment is to secure that nobody be removed from office without reasonable inquiry.
If an inspector was sent down to a meeting of the board, it would constitute an inquiry.
I do not think that there is much in the proposal.
If there is nothing in it, there is no harm in coming half-way to meet us.
Amendment, by leave, withdrawn.
Amendment 27, as follows, was agreed to:—
In page 12, to delete in line 10, the word "or" and to delete lines 11 to 15 (Minister for Local Government and Public Health).
The following amendment was on the Paper in the name of Deputy Brennan:—
28. In page 12, line 16, to insert after the word "Minister", the words "after stating his reasons".
This amendment is consequential on the amendment which we have just discussed.
It is wider than the last amendment we discussed. The official himself might not wish to have the reasons stated.
He might not wish to have them stated in detail. I am not keen on this proposal if you give due inquiry in any shape or form, so that the officer can make his case.
The Minister should jump at this amendment because if he persuades us to surrender No. 26 in exchange for No. 28 he will be able to say that he found the holder incompetent to discharge his office. I would not swap No. 28 for No. 26 at all.
Amendment not moved.
Section 25, as amended, agreed to.
Amendment 29 (Deputy Brennan) not moved.
Question proposed: "That Section 26 stand part of the Bill."
What is the purpose of this section in relation to Section 25? Why is it necessary for the local authority to have power apart from the Minister? Is it intended that the Minister shall initiate matters through the local authority? If not, I suggest that the addition of the words "if so requested" after "may", in the first line, would clarify the matter. That would definitely mean that the local authority would approach the Minister instead of the Minister urging the local authority to take the necessary step.
The local authority should have those powers as well as the Minister. When the County Management Act is put into operation there will be certain officers under the county manager and the local authority will have absolute power to deal with them.
The point made by Deputy Benson surely is that Section 26 contemplates that the local authority may exercise power analogous to that exercised by the Minister under Section 25, but is it contemplated in Section 26 that the initiative in the use of these powers will come from the local authority or from the Minister?
From the local authority.
If it is intended that the initiative should come from the local authority why not put in "the appropriate Minister, if requested, may empower the relevant local authority to remove from office"? Is not that the point made by Deputy Benson?
What is the purpose of this section?
As I pointed out, certain officers will be under the local authority altogether when the County Management Act comes into operation. At least, that is what is contemplated. In cases of that sort the local authority will deal with the officials. The Minister must have the power to deal with certain officials, and there may be other officials over whom the local authority will have absolute control.
The Minister will have the same power over all officials?
Section put and agreed to.
Section 27 agreed to.
Question proposed: "That Section 28 stand part of the Bill."
I suggest that in sub-section (2)—"Where a local authority makes a provisional appointment the following provision shall have effect ..." the word should be "provisions."
"The following provisions shall have effect."
Question put and agreed to.
The appropriate Minister may by order fix the amount and nature of the remuneration of holders of a specified major office and such order shall have the force of law in accordance with its terms in relation to such office and holders thereof and, if and in so far as it conflicts with any regulation made under this Part of this Act shall override such regulation.
I move amendment No. 30:—
To delete all words after the word "thereof" in line 27 to the end of the section.
I put down this amendment simply to ask the Minister why we have been introducing matters like this into some Bills much more frequently lately than heretofore. The Minister may tell me, of course, that it is in order to prevent administrative difficulties but, to my mind, we have carried this thing a good deal too far. We introduce sections into Bills in which we say: "If there is some other authority in the State which has to be complied with, this overrides it," although it does not specifically state that. That has led to a very large extent to chaos in endeavouring to understand and follow Acts of the House. I think the less we have of that the better. If the Minister can meet it in any other way I think he ought to try, and should clarify the thing.
Under Section 19, the Minister may make regulations for classes of offices. He can make regulations fixing the remuneration for a body such as county surveyors or assistant surveyors, but you may have a case, for instance, of a county medical officer of health or some such office, where you may have to deal with the case as an individual case, not as a class. County medical officer of health is, perhaps, a bad example to take, but there may be some major office in a county which you would have to deal with individually and fix the salary individually. This section is intended to provide that when you have to deal with a case like that, it overrides the regulation that deals with the class, that is, the regulation made under Section 19. That is the object of the section—to enable you to deal with an individual case.
In making these regulations there ought to be some provision that you will not have to go outside them.
That may be possible in the regulations. I do not know.
It is really very bad practice to have such provisions in Acts of Parliament.
Amendment, by leave, withdrawn.
Section 29 put and agreed to.
Sections 30 to 32, inclusive, agreed to.
(1) Before the elections held next after the commencement of this section of members of councils of counties, the Minister shall—
(a) by order fix the total number of the members of every such council, and
(b) by order fix in respect of every such county, the number of members of the council of such county to be elected from every county electoral area in such county.
(2) The total number of the members of the council of a county fixed by an order under this section shall be—
(a) where immediately before the commencement of this section the total number of members of such council is a number less than 30, a number not less than 20, and
(b) in any other case, a number not less than two-thirds of the total number of members of such council immediately before such commencement.
(3) On and after the ordinary day of retirement of members of councils of counties next after the commencement of this section, the total number of members of the council of each county shall be the number fixed in that behalf by order under-this section.
(4) The number of members of the council of each county to be elected for each county electoral area in such county at any election held after the commencement of this section shall be the number fixed in that behalf by order under this section.
(5) Nothing in this section shall be construed as preventing or restricting any alteration under Article 25, of the Schedule to the Local Government (Application of Enactments) Order, 1898, of the number of members of the council of any county.
I move amendment No. 31:—
In sub-section (1), page 14, to delete all from the word "shall" in line 18 to the word "such" in line 21 and substitute "shall by order or by two or more orders—
(a) fix the total number of the members of every council of a county, and
(b) divide every county into county electoral areas, and
(c) fix in respect of every"
This amendment is in substitution for Section 34.
It seems to be a redraft of Section 34.
Are we going to discuss this amendment and my following amendment together, because one will have an over-riding effect on the other?
If amendment No. 31 is carried, Section 34 disappears. Amendments Nos. 31 and 32 might be discussed together.
If amendment No. 31 is carried, amendment No. 32 goes.
Therefore the two amendments might be discussed together since they both relate to the number of members to be elected.
My reason for putting down amendment No. 32 is that the Minister is taking the right in his amendment to fix the total number of the members of every council of a county; to divide every county into county electoral areas, and fix in every respect other matters. I want him to fix them in a particular way as regards area and population. As a matter of fact, I do not see any reason whatever at the present time for a reduction in the members of the county council. It has been freely canvassed for some time, even before this Bill came into print at all, that there was going to be a very drastic reduction made in the members of the county councils and, coincident with that, there was also the rumour that the county councils were going to lose all the powers they had, and that matters relating to county administration were going to be discharged by a manager. If there is any force in the appointment of a manager in order to expedite county administration, there is no force left in the proposal to reduce the number of the members of the county council, because by their numbers they were in some way blocking administration. It may be argued that because there were too many members in the county council it was unwieldy, and that it took a long time to discharge duties, and to discuss the matters that had to be discussed, and that, possibly, there was a lot of idle discussion. That may be true, but that surely has all disappeared by the appointment of a manager, because the number of matters that would come up for consideration by a county council would be very few and far between.
We have three Bills at the present time—the Public Assistance Bill, the Managerial Bill and this Local Government Bill, all supposed to be a part of each other. They are all dove-tailed into each other. It is very difficult for us to consider the implications of every Bill as a kind of joint administrative machine but if my recollection of the Public Assistance Bill is correct, we have been making provision in it for the appointment of sub-committees of various sorts and kinds all over the county for the purpose of carrying on administration as consultative bodies. If we are going to do that, is it not the best possible foundation we can have to have a pretty large elected body that will do the work? You will then have people who were elected by the voters in the county on these sub-committees doing the work instead of having nominated persons who possibly might have not very much knowledge or might not be able to boast that they had been elected by popular franchise at any time. I should like that, at least in the new election, there should be no reduction of members of county councils. Consequently, I am asking in this amendment that the basis for fixing the number of members will be the same basis as was followed in the 1925 Act. I am asking for no more than that. I do not think it reasonable to insist on a reduction of members for county councils. I think the more elected representatives you have the better off you will be. At the moment, many of us are throwing our minds back even to parish councils. We have on one side a scheme of centralisation and on another side a scheme of decentralisation. We should be consistent in some way. If the numbers of members of the county council are pretty high at the moment, we can make very good use of them and it is much better to appoint elected representatives to these various committees than to have them constituted of people nominated in some unsatisfactory way. I am appealing to the Minister to retain the present basis of fixing the membership of county councils.
On the Second Reading of the Bill, I expressed more or less the same point of view as that to which Deputy Brennan has now given expression, namely, that it would be a pity to reduce to too low a figure the number of elected members of councils. I think the experience has been that after a council has been elected for a few years the average attendance at meetings is from one-half to two-thirds of the full membership. There is a very large number of committees to be elected from among the members of the county council-mental hospitals committees, vocational committees, agricultural committees, and so on, and some councils find great difficulty in finding members to represent them on these committees owing to the fall in attendance, say, six months or 12 months after elections. If you reduce the number of members, as proposed in this Bill, I am afraid you will do a big injustice to many people. It must be remembered that an electoral area for a county council covers a considerable area, and you may find very large districts in a county without any elected representative at all. If you reduce the membership further, you will find that while comparatively small areas, owing to density of population, may succeed in being adequately represented, very often a large area which is sparsely populated may have no representative at all. I know that a difficulty exists at present in counties, such as Cork, where there are very large councils but, taking the average county council, consisting of 27 to 30 members, I do not believe that they are unwieldy or incapable of transacting business properly. The average attendances at meetings of such councils after a few months generally fall to about 17 to 21 members. Taking the home assistance committee, the public health committee and all the other sub-committees that must be set up under various Acts, if you are confined to a small number of members, you will have to co-opt outsiders to these committees, many of whom have actually no responsibility as public representatives. Sometimes, even the most desirable people, the very best administrators, who are co-opted in this way, will not take on the same responsibility as elected members. That, I think, is the general experience and that is why I think the Minister should not too hastily enshrine in legislation this power to fix the number of members. It would be more desirable if the number could be fixed by order, as occasion arose.
The Minister takes power in amendment No. 31 to divide every county into county electoral areas. As far as I can read the amendment with the rest of the section, he fixes the number of members of a council on a certain basis, he fixes the areas, and he fixes the number of members to be elected by each area. It would be possible in an extreme case, as far as I can read the section, for the Minister to divide the county into two areas, and to ordain that one member of a council should be elected from one of these areas and the rest of the members from the other area. That is taking an extreme case. I am not suggesting that any responsible Minister would do that, but reading the section with the amendment, I would say that the Minister has perfect power to gerrymander the constituency of a local authority without any guide whatsoever, by way of population or area, as to what should constitute the basis of a county electoral area.
To get some idea of the changes that have come about in representation on county councils and local authorities, one has to go back to the position pre-1925. Pre-1925, the number of members was much smaller than at the moment. In 1925, the functions of the rural councils were handed over to the board of health and the board of health, as you know, was elected from the county council. There were two members of each rural council, that is the chairman and another member, added on. Since then the Public Assistance Act and the County Management Act have been passed. Under the Public Assistance Act power is given to set up local committees to deal with particular matters.
That was in the 1925 Act, too.
They did not seem to avail of it very much then. Under the County Management Act, you have the county manager responsible for all executive functions so that councils will not have anything like the same amount of work they had to do when they had to deal with board of health duties and many other matters which will now be in the hands of the county manager. There is no intention whatever to make drastic reductions. In these orders the Minister will have to be guided by population and also by the convenience of an area. I do not think, except in very few cases, that it will be necessary to interfere with the existing electoral areas. Cork had 68 members, and subsequent to 1925, I think it was at their own request, it was reduced to 43.
As a matter of fact under this Bill as it is drafted they would be entitled to more than 43, but they do not want more. I could give examples of other councils, but there is only a provisional calculation as to how it works out. Taking Deputy Brennan's area—this, again, is only a provisional calculation as to how it might work out—pre-1925 Roscommon had 21 representatives on the county council ; subsequent to 1925 they had 31 members, and the calculation at the present time is that they should have 26. It may not be necessary to make any alteration in the electoral areas, or, again, it may in one or two of them. Pre-1925, Wexford had 20 representatives; after 1925 it had 26 and the present calculation would show that they would be entitled to 21. There is not intended to be any drastic interference with the county councils. The Bill prevents that in any event. Some people believe that small councils do more work than large cumbersome councils, but there is no attempt being made under the provisions of this Bill to make any drastic change. We are making only very small reductions in the number of members of the county councils. I also believe that you will have more local committees set up to deal with local matters, and the work will be carried out under the direction and with the assistance of the county manager.
The Minister, I am sure, will admit that our fears are not groundless with regard to the numbers, because the only guide we have is that set out in Section 35 in relation to borough councils. That section says: "if such number would, but for this section, be an even number greater than 19, one half of the said even number." It is set down in black and white, hard and fast, that those local authorities are to be reduced by practically 50 per cent.. Surely our fears as to a reduction in the numbers are very well grounded, judging by that.
Does not sub-section (2) of Section 33 give you the basis for the county councils?
Yes. That is quite true; I am sorry. It says:—
"where...the total number of members of such council is a number less than 30, a number not less than 20,"
—so a council that might have 29 would be put off with 20. To my mind, the Minister has made quite a good case for retaining the number of members of county councils, in the same way as Deputy Allen and myself have tried to make it, inasmuch as under the Public Assistance Act it is necessary to make provision for the election of committees for the discharge of certain duties. Has the Minister any objection to the members of those necessary committees being elected persons rather than selected persons?
Of course they can be too.
I know they can, but if we have only 21 to draw from instead of 31 then we will have less people to go around, and people with a much more restricted knowledge of the county than if we had 31 to pick from. That is the strongest argument I can use for the continuance of the present number of members elected to the various county councils. I do not think the councils are unwieldy. As committees are necessary in a county for the purpose of administering public assistance and other matters, we ought to have a wide number of persons with local knowledge, particularly of public assistance, and they ought to be, in so far as we can help it, people who are elected and not selected. Consequently, I appeal to the Minister that, as far as possible, the members should be elected to the new county councils on something like the same basis that we have at the present time. If he takes whatever the basis was under the 1926 Act—I presume it was the population of the area—and operates it in the same way, I have no objection whatever. It may come down a peg or go up a peg, but I think it would be in the interests of public administration that we should have a large number of elected persons, with the responsibilities of being elected, rather than selected persons.
Of course those vocational committees and agricultural committees, as the Deputy knows, are selected by the elected representatives.
They must consist of a number of elected members.
Those committees have worked all right. You may get committees by selecting people from the area who have some specialised knowledge or some special interest in the particular duties delegated to them. I do not think there is any force in that argument.
You may do that, but every time I should prefer to have a person who was elected by the people, and has to go back again to be elected by them, rather than somebody who would have no responsibility. In other words, I should like to have acting on every committee some person or a number of persons who were members of the rate-making authority. I admit that we have very desirable persons on vocational educational committees and the county committees of agriculture. The county committee of agriculture in our area is composed entirely of members of the county council, but the vocational committee is not. Again, if you reduce the number of members on the county council you are reducing the number of persons available for those particular committees. That is my point. You ought to keep them there, because you will want them.
I should like to support Deputy Brennan's amendment. I suggest that the number should not be reduced, for the reasons stated by Deputy Allen. There is also another point which I wish to raise. It is somewhat akin to the matter referred to by Deputy Esmonde, although I am not very much perturbed about gerrymandering, but I do suggest that the reasons in regard to the number of members under the present allocation would apply also to the divisions, with perhaps much more force. The various county councils are divided into a number of electoral divisions. A number of them are very cumbersome. The Minister said there would not be much alteration, but I sincerely hope there will be changes in the electoral areas. Some of them in my county are particularly cumbersome. I do not know why they were originally so framed, but they need to be changed. I should not like the change to take the form of an enlargement of the areas, as would be possible under the Minister's amendment. I would rather see them grouped into smaller areas and certainly not less in number than at present. The Minister's amendment would make it possible to alter the number in a county like mine, in which there are five divisions, to three, and if there were to be any change, I would prefer to see the number increased to seven. I should like to see all the amendments framed somewhat on the lines of Deputy Brennan's, that is. that, both in respect of number and area, they shall not be less than was set out in the previous Act.
There is one point which the Minister ought not to overlook in this connection. It is that the county manager, in being given very wide executive powers, is being handicapped in that he has not got that local knowledge which the local representative has. He will be handicapped also in that he will not have the confidence of the people which the local representative will have. If you are curtailing the powers of the local authority and putting their executive powers in the hands of the manager, there is all the more reason why there should be full representation, so that if the people in a particular locality have a grievance, they can go to their local representative and put their problem in his hands. I think we ought not to overlook that aspect, particularly at present when the tendency in some countries is to destroy democracy and local representation altogether. There is a bond of sympathy between the local representatives and the people which ought to be preserved. If the local representative is doing his duty conscientiously and well, and looking after the interests of his people, they will have confidence in him, and there will be a bond of sympathy between them. That cannot obtain between a paid official and the people, and in order to preserve the confidence of the people in the local authority to do the best they can in the interests of their people, you want full representation. I should not be inclined to reduce the number of representatives at all, and I think the Minister ought to be very slow to do so.
There is, of course, something to be said on both sides, but there is nothing to prevent these elected members sitting on these committees.
I know, but there are fewer of them to go round.
Take the case of a county council. You put ten members on the board of health and you then proceed to fill up the other committees, such as the mental hospital, vocational education and agricultural committees. If you are reducing your county council by only three or four—and in most cases that seems to me to be the way it will work out——
It will be nearer to nine or ten.
It will in some places, I believe, mean eight or nine. That is not a very big reduction, and it will leave sufficient members on the county council to enable them to have a controlling voice if they want it on these committees which may have duties delegated to them. There is a lot to be said on both sides because, very often, there are people with a particular interest in the work of certain committees—a specialised interest, perhaps—who will not go up for election in the ordinary way but whose assistance could be of very great value.
They are a damn nuisance most of the time.
I am speaking only for the county I know myself, but that might be what has caused Deputy Allen to be so suspicious about it.
Would the Minister consider the case of a rural district attached to an urban area? When you reduce the representation, it may so happen that the rural district may lose what representation it has, and would then be represented solely by the urban area. The more you tend to reduce the numbers, the surer you may be that that is what will happen —the urban area, with the predominating voting power, will leave the rural district unrepresented.
That will be the tendency.
Undoubtedly. I know areas in which that will happen, if there is a reduction.
Another point which I should like to put to the Minister is that this is a permanent measure, we hope, and I should like to see a certain fluidity by which the Minister would have the right, possibly at some future date, to alter the numbers according as population or some other cause warrant it. Under this, we are fixed down to a certain formula and, if a council consisted of a certain number before this Act came into operation, the formula came into force and a certain number had to be fixed. No other factors whatever could be taken into consideration. If at present the number of councillors in a particular county is too high in proportion to its area or population, the new percentage under this formula will also be to high. I should prefer to see the Minister accepting my amendment with the elimination of the words "shall not be less in such regard than the numbers fixed under the Local Government Act, 1925". If the Minister would simply have a section whereby we would have a guarantee that the numbers fixed by the Minister would be fixed in relation to area and population, I think we could rely on the Minister's fixing the right numbers afterwards, but I certainly object to a fixed number under a formula like this, without any regard whatever for the conditions that went before or that may follow.
There is, in amendment No. 34 that fluidity which the Deputy has in mind. The amendment says:—
The Minister may by order amend or modify any division made by an order under this section (including an order under this sub-section) of any county into county electoral areas or alter the number of members of the council of any county to be elected by virtue of an order under this section (including an order under this sub-section) from any county electoral area in such county, and every such amendment, modification, or alteration shall have effect for the purposes of the elections held next after the making of such amendment, modification or alteration and thereafter.
I am glad to see that, but I think the Minister ought to realise that there is some force in the argument we are putting forward in this respect.
It will be got perhaps by experience.
I think it essential that you should retain sufficient to give you a majority on the various committees. Many of these committees, like mental hospital committees and technical committees, can commit local authorities to huge expenditure. It may be said that, so far as the technical committees are concerned, they have to apply to the county council for sanction, but we all know how difficult it is to turn down the recommendations put forward by any of these committees. The people trusted by the ratepayers to spend their money properly, and to exercise proper control and a sense of responsibility, are the elected representatives, and on those committees, which have power to commit local bodies to expenditure, we should always provide for a majority of elected representatives.
As to the various extensions of various committees that you suggest having, and which Deputy Allen pointed out we had power to set up under the Act of 1925, you may find them a very dangerous matter to handle. After all, they will be more or less concerned with the social services, and I can visualise the unhappy lot of a local representative if he tries to comply with one-tenth of the regulations in connection with those committees. That is a matter about which one has to be extremely careful. After all, the one thing that will ensure a sense of responsibility in a committee or local authority in the expenditure of rates is that the individual who stands over that expenditure will have to submit himself subsequently for sanction by the electors themselves, and to relieve him of that responsibility is an inducement to him to give way to sympathetic cases for which there might be no merit or foundation. I speak with some experience, and, as Deputy Brennan said, I would much prefer—even if it meant a certain amount of unwieldiness—that the responsibility should be brought home to these people by having to face the electorate. If they had to face the electorate you would be more certain of having that sense of responsibility than through nomination or selection.
In saying that, do not think that I do not appreciate very much those who serve on technical committees because of their experience and special knowledge, or on agricultural committees, but particularly on technical committees. They, however, are on an entirely different plane from those who deal with the social services and who have to face the importuning of people who may or may not be deserving, the cost of which cases will have to be borne by the public purse. That is a thing which, if not carefully handled and controlled by the central authority, will leave us with a very much larger and undefined expenditure. It must not be forgotten that conditions have altered within the last few years. You have the managerial system now, and you have the work of the board of assistance and board of public health being done by the county council. I do not anticipate that there is going to be any reduction in the work, but rather that there will be very much more work concentrated on the people who will be doing it. All those arguments go to show that the question of fixing the number of elected representatives is one that must be very carefully handled, and one headline that you must keep before you is that if any of these committees are to have the power of committing the council to expenditure you should have at least a strong majority of the elected members on it.
I think it is the usual experience that many members of a county council—I should say about 50 per cent.—generally refuse to act on any committee, and that leaves only a limited number of members who are called upon to attend to these duties. Often, it is a whole-time job for some of the elected members, with the result that the business is not done as it should be. If you have not a certain number to volunteer or to draw upon, you will find it is almost impossible to get elected members, with responsibility, to serve on those committees. I agree that you can get most admirable people by selection or co-option, but they do not act with the same sense of responsibility as the elected members, because the elected members are in closer touch with the finances of the councils, and know what it is to collect the rates and try to make their estimate fit in to their yearly budget. They are more closely in touch with financial matters, and take a responsible outlook on all matters of expenditure whereas the other people, as I said before, while they may be very admirable, do not mind driving up expenditure without any consideration at all, because they have no reason to consider it. That is why you need a certain number of elected members on each committee.
I was rather disappointed about one thing that the Minister said in connection with these sub-committees. I think he was alluding to those connected with social services and said that with the assistance of their managers they will be able to do a good deal of work that was formerly done by the boards of assistance and of public health. Is it possible for these non-elected committees-selected, if you like-with the assistance of the manager, to commit the local authority to an expenditure over which the local authority would have no control?
I think Deputy Allen's point is really a refutation of the whole thing, because what apparently is aimed at now is that if you have a sufficiently big council you will be able to get a few on it, at any rate, who are prepared to do the work of these committees.
Well, if you cannot get that with, say, 25 members, there is little likelihood that you will get it with 30 members.
The more you reduce it the less chance you have.
I do not think there is any point at all in trying to get a big council with a view to having a sufficient number ready to do their duty as councillors. When it comes to a difference of five or six members of a council, I do not think it matters very much. In any case, this is an experiment, and there is an amendment coming on which will enable this to be modified from time to time. The reason we are reducing them at all is that there is a big amount of executive work that has been transferred over to the county manager. He will have certain duties that used to take up a considerable amount of the time of councillors and members of the boards of health. Deputy Broderick asked me would these people have the right to spend money with the assistance of the manager. They may, but then the county council has the rating to do, and you cannot spend money unless you strike the rate for it, and the county council will always have that power.
That is Deputy Broderick's objection.
Yes, that is my objection. If they can undertake expenditure without any authority, which the county council, through the rate collection has to make good subsequently, I think it is very serious.
What can be done except on the estimates? You have to pass the estimates.
Take home assistance, for instance. You have these committees dealing with home assistance. They can exceed the estimate, and I readily admit that there are times when that is necessary, but I suggest that that is a classic case of the local authority being committed to expenditure over which it has no control.
I want. Sir, to clear up this matter, because it is really a very important point. I am pointing out—and I am sure Deputy Allen will agree with me—one of the reasons why these committees were not availed of under the 1925 Act, and they are now to get authority from this House to commit the council to expenditure irrespective of the local authority.
This Bill does not give that authority.
Well, it was raised in the statement by the Minister on this Bill. I am asking your indulgence, Sir, because it is really a very important point.
I think the Minister will find that it will be a great mistake if he reduces the numbers. He cannot make any case for the reduction, and the fact that they are going to have less to do is no case.
Does the Deputy agree to amendment No. 31?
I suppose I shall have to, and withdraw my own amendment. At any rate, I shall not divide the House on it.
Amendment No. 31 agreed to.
Amendment No. 32, by leave, withdrawn.
I move amendment No. 33:—
In page 14, to insert before sub-section (4) a new sub-section as follows:—
(4) The division of a county into county electoral areas made by an order under this section shall have effect for the purposes of the elections held next after the commencement of this section of members of councils of counties and thereafter.
Amendment agreed to.
I move amendment No. 34:—
In page 14, to add at the end of the section a new sub-section as follows:
(6) The Minister may by order amend or modify any division made by an order under this section (including an order under this sub-section) of any county into county electoral areas or alter the number of members of the council of any county to be elected by virtue of an order under this section (including an order under this sub-section) from any county electoral area in such county and every such amendment, modification, or alteration shall have effect for the purposes of the elections held next after the making of such amendment, modification or alteration and thereafter.
Amendment agreed to.
Question proposed: "That Section 33, as amended, stand part of the Bill."
Will the Minister or the Department consult the local authority with regard to the fixing of the electoral areas? Will representations from the local authority be considered in relation to the fixing of the electoral areas? Will the view of the local authority on that matter be considered by the Minister?
Any representations made will be considered.
I know one area that is at least 50 miles in length. That could easily be altered, much to the advantage of the people living there. Such an alteration would serve the people better.
Question put and agreed to.
Section 34 not moved.
I move amendment No. 35:—
To delete sub-sections (2), (3) and (4) and to substitute a new sub-section as follows:—
The Minister shall by order fix the total number of members of any council of a borough, council of an urban district or commissioners of a town, define whether there shall be one or more electoral areas and the manner of election, including the number of aldermen.
The section sets out: "(a) if such number would, but for this section, be an even number greater than 19, one half of the said even number, and (b) if such number would, but for this section, be an odd number greater than 19, one half of the next whole number greater than the said odd number." This represents a reduction of 50 per cent. The Minister has not an amendment to this section of the same nature as amendment No. 34 and in that I see a very grave danger with regard to the fixing of the number of members for borough councils. It is much more important for the fixing of the number of members for borough council areas than for rural areas that the Minister should take the populations into consideration. The variations in rural populations are not very great from one year to another, but the position is different in a town of possibly 3,000 or 4,000 inhabitants. The population in such a town may, because of the loss of some industry, be reduced by 50 per cent. and the Minister would still be tied by this particular section; whether there was an expansion or a contraction in the population he would still have to have a fixed number of members on the borough authority.
I do not know whether it has occurred to the Minister that, with the introduction of an industry into a town, there might be such an expansion of population as would justify an increase in the number of members of the borough authority. On the other hand, there might be an exodus of people because of some mishap to a local industry and the Minister might have to have a contraction in the number of members of the borough authority. The Minister should make some provision which will give him the right to alter the number of members rather than have a fixed number as is set out in the section. In that sense the section as it stands is, in my opinion, definitely bad. The Minister would be well advised to accept my amendment or introduce something similar which will give him the right to alter the number of members just as the population of a borough demands.
The Deputy is giving me a right here that he would not like to give me in the case of the county councils. He puts me in the position that I can reduce the number of members if I think it is necessary to do so. I am in agreement with the principle of the amendment. It gives me greater latitude. I am prepared to accept the principle and if the Deputy withdraws the amendment I will bring in one on Report covering the point.
Amendment, by leave, withdrawn.
Question proposed: "That Section 35 stand part of the Bill."
We do not know in what form the Bill will appear eventually, the Minister having accepted the principle of Deputy Brennan's amendment, but there is one point that I would like to stress. I must confess that my ignorance of local government outside Dublin City is abysmal and I do not know, when you have excluded the boroughs that have been mentioned in sub-section (1), how many will be left. No matter how many are left, the Minister apparently visualises that he might have as small a council as one of nine members and yet, under sub-section (4), he is going to make the first four members of the council of a borough, aldermen of that borough. To me that seems ridiculous.
There will be none on a council where the membership is under nine.
Sub-section (2) sets out that the number of members shall be, "in any other case nine."
In any place where there are aldermen they have 24 members.
Why does the Minister, under sub-section (3), propose to make the one electoral area? There may be a predominance of representation on one side of a borough, leaving the other side unrepresented.
Question put and agreed to.
(1) Where no poll is taken at an election of members of the council established by law in respect of any county borough, the number of aldermen of such county borough shall be the same number as if such poll had been taken and such council shall determine which of the members elected at such election shall be such aldermen.
I move amendment No. 36:—
In sub-section (1), page 15, to delete in line 25 the words "no poll is taken", to insert in line 27 before the words "the number" the words "no poll is taken in any particular borough electoral area", to insert in line 27 before the word "shall" the words "elected from such borough electoral area", and in line 29 to delete the word "at" and substitute the word "from" and to delete the word "election" and substitute the words "borough electoral area".
This deals with election of aldermen.
I have only to say on this amendment that if I possessed powers of internment I would promptly intern the man who drafted it. It took nine lines of print to correct what was originally in five lines. We could have a whole new sub-section with much less print and much less trouble, and I expect it would be more readable.
Perhaps it would not be so detailed.
Amendment agreed to.
Section 36, as amended, agreed to.
I move amendment No. 37:—
Before Section 37 to insert a new section as follows:—
37.—(1) Where at the nomination of candidates at an election of members of a local authority either no candidates are duly nominated or the candidates duly nominated are less in number than the quorum for meetings of such local authority, such election shall not be proceeded with and Part IV of this Act shall have effect in relation to such local authority as if on the day on which such election was to have been held the members thereof had been removed from office under the said Part IV or, if such election is a new election within the meaning of the said Part IV, had again been removed from office under the said Part IV.
(2) Where in pursuance of sub-section (1) of this section an election is not proceeded with and such election would have been proceeded with but for a decision of the returning officer refusing to accept one or more nominations of candidates, the decision of the returning officer in respect of such nomination or any of such nominations (as the case may be) may be questioned by an election petition.
(3) Where the court trying an election petition in relation to an election of members of a local authority declares that by reason of a deficiency in the number of candidates duly nominated such election should not have been proceeded with, the following provisions shall have effect, that is to say:—
(a) the said election shall be deemed not to have been held and the persons elected at such election shall be deemed not to have come into office;
(b) every act done during the period between the completion of such election and the determination of such election petition which was done by the persons or any one or more of the persons declared elected at such election and which purported to be an act of such local authority or an act done by virtue of the membership of such local authority of such one or more persons (as the case may be) shall be as valid and effectual as if all the persons declared elected at such election had been validly elected and qualified to act as members of such local authority;
(c) every such act which was done by an individual person declared elected at such election and subsequently declared appointed to the office of chairman, lord mayor, or mayor of such local authority and which purported to be an act done by virtue of the said office shall be as valid and effectual as if all the persons declared elected at such election had been validly elected and qualified to act as members of such local authority and such individual person had been validly appointed to the said office;
(d) subject to the provisions of this sub-section, Part IV of this Act shall have effect in relation to such local authority as if on the day on which such election was held the members thereof had been removed from office under the said Part IV or, if such election was a new election within the meaning of the said Part IV, had again been removed from office under the said Part IV.
(4) Where the returning officer at an election of members of a local authority refuses to accept one or more nominations and by reason of such decision such election is not proceeded with and a court trying an election petition questioning such decision declares that such decision was wrong and that such election should have been proceeded with, the following provisions shall have effect, that is to say:—
(a) Part IV of this Act shall be deemed to have been in force pursuant to sub-section (1) of this section in relation to such local authority from the day on which such election was to have been held and shall continue so in force until the coming into office of the persons elected at the election held in accordance with the next following paragraph of this sub-section;
(b) the Minister shall, as soon as may be after the determination of such election petition, fix a day for the holding of an election of members of such local authority and such election shall be held on that day.
Amendments Nos. 37 and 38 really go together. They are drafting amendments in a sense, although they are very long ones. Section 37 is not being moved.
They do not materially affect the Bill?
They do not; they are really providing necessary machinery.
Amendment agreed to.
I move amendment No. 38:—
Before Section 37 to insert a new section as follows:—
37. Where, by reason of a deficiency in the number of candidates duly nominated in one or more electoral areas, the candidates who can be elected at an election of members of a local authority are less in number than the full number of members capable of being elected at such election but are not less in number than the quorum for meetings of such local authority, such local authority shall be validly constituted by virtue of such election notwithstanding the vacancies arising from such deficiency and such vacancies shall be regarded for all purposes (including the purposes of this Act) as casual vacancies caused by refusals immediately after such election to take office and shall be filled accordingly.
Amendment agreed to.
Section 37 is not being moved, as amendment No. 39 is being substituted. Section 37 is being deleted.
I move amendment No. 39:—
Before section 38 to insert a new section as follows:—
38.—In lieu of sub-article (3) (repealed by this Act) of Article 5 of the Schedule to the Local Government (Application of Enactments) Order, 1898, it is hereby enacted that, at every election regulated by rules framed under the said order, the poll shall be taken by ballot and the enactments set out in the Second Schedule to this Act shall to the extent mentioned in the said Schedule and subject to any adaptations, alterations, and exceptions made by such rules apply in respect of such election in like manner as they apply in respect of a municipal election.
This has the effect of substituting the modern electoral code for the old system—that is, the system set up under the Local Elections Act of 1898.
Amendment agreed to.
(1) Where any person, who is elected or chosen to be a member of a local authority and who is required by any enactment in force immediately before the commencement of this section to accept office as such member by making and subscribing within a limited period a declaration accepting such office, does not so accept such office, the following provisions shall apply and have effect, that is to say:
(a) such person shall be deemed to have refused such office, and
(b) such office shall be vacant and shall, for the purposes of every provision (including provisions contained in this Act) relating to casual vacancies in the membership of such local authority, be deemed to have become vacant by the resignation of its holder.
I move amendment No. 40:—
In sub-section (1), page 16, to add at the end of line 7 the words "on the last day of the said period".
This amendment makes clear the date a refusal to accept office begins.
Amendment agreed to.
Section 38, as amended, agreed to.
Notwithstanding anything contained in any enactment in force immediately before the commencement of this section—
(a) any act which, by virtue of any enactment in force at or immediately before the commencement of this section or coming into force at any time after such commencement, may be done at a duly constituted meeting of a local authority by a majority of the members present at such meeting, may be done by a majority of those members who vote at such meeting for and against the doing of such act, and
(b) any question which, by virtue of any such enactment as is mentioned in the foregoing paragraph may be decided at a duly constituted meeting of a local authority by a majority of the members present at such meeting, may be decided by a majority of those members who vote at such meeting on the decision of such question.
I move amendment No. 41:—
In page 16, to insert at the end of line 13 the words "or commencing at the same time as this section", to insert in line 14 before the word "enactment" the word "such", to delete all words from the word "in" in line 14 to word "commencement" in lines 16 and 17, and to delete in line 23 the words "as is mentioned in the foregoing paragraph".
This is a drafting amendment.
Amendment agreed to.
Section 39, as amended, agreed to.
Question proposed: "That Section 40 stand part of the Bill".
On sub-section (3) I should like to ask what provision the Minister proposes to make where an alderman ceases to be a member of a council and a person is co-opted to fill the casual vacancy. The sub-section says:—
Every person chosen under this section to fill a casual vacancy in the membership of the council of a borough shall hold office as a councillor whether the member of such council occasioning such vacancy was an alderman or a councillor.
Suppose there were five aldermen in the council and one died, or vacated the position for one reason or another, and some one was co-opted. He is a councillor. Would the council proceed to elect a new alderman, or carry on with four?
The usual practice was to co-opt a new man and then proceed to elect an alderman.
The new man would be elected as a councillor. I think the council would proceed to elect an alderman.
There is power, under another Act, for that?
It is provided in sub-section (3) that the new member shall be councillor only.
Except where elections are not held and there is an extension.
This is a casual vacancy.
The Minister is sure that we are not taking away that power in any of the portions that are being repealed?
I will make sure of that.
Question put and agreed to.
(1) At an election of a mayor of a county or other borough or of the chairman of any local authority, the following provisions shall apply and have effect, that is to say:—
(d) if at such poll a majority of the members vote for any particular candidate, such candidate shall be elected;
(e) if at such poll no candidate receives the votes of a majority of the members, the candidate receiving the least number of votes shall be eliminated and, subject to the provisions of paragraph (g) of this sub-section, one or more further polls (according as may be necessary) shall be taken;
(g) where there are only two candidates or where, as a result of one or more polls taken under this sub-section, all the candidates except two have been eliminated, the question as to which of such candidates shall be elected shall be put to the members and whichever of such candidates receives the greater number of votes on such question shall be elected;
(2) In this section—
the word "mayor" includes a lord mayor,
the word "members" means the members of a council electing a mayor or of a local authority electing a chairman who are present at such election.
I move amendment No. 42:—
In sub-section (1), page 16, to insert in line 50 before the word "mayor" the words "lord mayor or".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 43:—
In sub-section (1), page 17, to insert the word "present" before the word "vote" in line 3, before the words "the candidate" in line 6, and before the word "and" in line 17.
Amendment agreed to.
I move amendment No. 44:—
In page 17, to delete sub-section (2).
This, together with amendment No. 43, enables a candidate to be proposed for the office of lord mayor, or chairman of a council, who is not present. He may be absent through illness or other cause.
Amendment agreed to.
Question proposed: "That Section 41, as amended, stand part of the Bill."
This Section 41 clears up the anomalous position which has arisen where a council has not been able to elect a lord mayor?
Yes, in conjunction with Section 39.
Question put and agreed to.
Question proposed: "That Section 42 stand part of the Bill."
The Minister has power to remove the local authority for not doing certain things. Am I right in saying that the term "local authority" includes the city manager, or the county manager, as the case may be?
No, only the elected members may be removed under the section.
And, of course, in some cases they are not the local authority at all.
If my original supposition were correct, that term included the county manager. He might not do a certain thing, the council might be removed, and that would include him.
Question put and agreed to.
(3) Where, by reason of a deficiency in the number of candidates duly nominated in one or more electoral areas, the candidates who can be elected at a new election are less in number than the full number of members capable of being elected at such election but are not less in number than the quorum for meetings of the relevant local authority, such local authority shall be validly constituted by virtue of such election notwithstanding the vacancies in their membership existing by reason of the deficiency in number of the members elected at such election and the said vacancies shall be filled as if they were casual vacancies.
I move amendment No. 45:—
In page 18, to delete sub-section (3).
This is consequential on amendment No. 37.
Amendment agreed to.
Section 43, as amended, agreed to.
Section 44 not moved.
Where the court trying an election petition in relation to a new election declared that such election was void or makes an order by virtue of which the persons validly elected at such election are less in number than the quorum at meetings of the relevant local authority, the following provisions shall have effect, that is to say:—
I move amendment No. 46:—
In page 19, line 8, to insert before the word "or" the words "for any reason other than a deficiency of candidates duly nominated".
It is not necessary to have an election petition declaring a new election by reason of an insufficiency of nominations. There is no point in it.
Amendment agreed to.
Section 45, as amended, agreed to.
Sections 46 and 47 agreed to.
Question proposed: "That Section 48 stand part of the Bill."
Sub-section (3) reads:—
So long as any permissive power to appoint a committee is exercisable under this section by a commissioner or commissioners, any statutory or other provision restricting the membership of such committee in whole or in part to members of a particular local authority shall be suspended.
I take it that the reason for that is that the commissioner will act on behalf of the persons who were nominated. Where a committee is nominated by a local authority and consists, as well as members of the local authority, of other persons, is there anything in the Bill which provides that they must go, or will they continue to act with the commissioner?
I appreciate that, but when the local authority is dissolved, the members of that local authority who were nominated to the committee go, presumably, because they were dissolved; but there were other persons who were not members of the local authority but who have been nominated to that committee by the local authority. Is there any legislation in this Bill to provide for that?
That is at present dealt with under the 1931 Act. They remain.
And the commissioner takes the place of the elected persons?
Yes. The matter is dealt with in Section 57.
Question put and agreed to.
Question proposed:"That Section 49 stand part of the Bill."
There is provision for remuneration of a commissioner. Is it intended, when the County Management Act is in operation, that as well as the county manager there shall be a paid commissioner, or will it be the case that the county manager is appointed a commissioner? Can the Minister say how such a position would be dealt with?
There may be a commissioner, of course, as well. I do not know whether it would be advisable that a manager should take the place of a commissioner, that is, that the manager should take the place of the council. I think it would be much more advisable to have a commissioner.
Then there would be two paid officials doing the work previously done by one paid official.
I would not like to be too definite about that matter, but they seem to have different functions. I do not think that a manager should be exercising the functions of a local body which are not reserved to him. You may have the position where a commissioner may have to remove a manager.
The Minister should take care of that.
A county commissioner will not have anything to do with a city manager?
Will the Minister be in a position to transfer a city manager to another city if he considers it advisable?
That does not come under this at all, but I do not think he would.
What the Minister contemplates, apparently, is that if he felt it his duty to dissolve a local authority where there already was a manager, he would put in a commissioner to carry on the reserved functions of the commissioner. Then there would be a manager, a commissioner, and a county secretary—all paid by the ratepayers. It would be an expensive business if that happens.
Will the Minister not reconsider that particular clause in connection with the commissioner? It is not advisable for us to have, along with the county manager, a new official from headquarters. For the Minister's consideration, I suggest that a body of three members from the county should be appointed to do that sort of work. The local authority consisted of members who tendered their services without any payment. Now, if we are to have a manager, a secretary and a commissioner, all paid officials, it may be a very good system; but there is no doubt that it will give rise to grave criticism. The manager will be paid a fairly good salary and, presumably, if only to mark the importance of the commissioner, the commissioner would have to be paid in excess of that. In the present circumstances, there would be very grave criticism of that.
We may assume that the dangers or possible temptations which would affect local authorities will be limited under the manager's care. Viewing the matter from the administrative side the Minister ought to examine this matter again, if for no other purpose than to ensure that the managerial system will not start with a handicap. I will not prophesy what is likely to take place in the future with regard to administration by local authorities, but one danger is that when members of these bodies have before them the possibility of being removed from office, if they find themselves in conflict with the Minister on a few occasions, the tendency is to increase rather than to diminish such difficulties. The Minister knows well the marked difference there is in the Parliaments of the world which are subject to a veto on the part of the head of the State; that there is not the same responsibility usually borne by Parliaments in that position as by Parliaments where there is no overriding voice, where the head of the State as a matter of course signs Bills. Between now and the Report Stage the Minister ought to review this section.
With the managerial system in operation the commissioners would have very little to do. The executive is run by the manager. They would be paid, I imagine, very low salaries. I cannot see any objection to taking three persons from a local body and appointing them.
That is a very grave disadvantage. If it were possible to envisage a situation in which four or five local bodies were deprived of representation, and that one commissioner could do the work of these bodies, then the salary question would not be so important. For a start the Minister ought to consider whether it would not be as well to waive this proposal. If in the new measure the manager has extra powers for dealing with matters which give rise to a good deal of dissatisfaction from the administrative point of view, it is unlikely that the same opportunities will occur in the future. There is one grave defect about the appointment of commissioners that we might face up to. If public representation is of a kind that super-action has to be taken in connection with persons exercising administrative responsibility, it is a grave defect in our character and one of the things that appear to me to lend a lever to and to accentuate that position is the fact that they can be removed. It so happens that every country, as well as every local area gets the character of representation it deserves. Our efforts should be directed towards making representatives realise the importance of their position, to look up rather than to look down, and certainly not to go on with the exercise of their authority with a fear always before them that there is a danger of a public inquiry or of being dissolved in a few days. In this particular case, bearing in mind the new orientation which the managerial system is bound to effect, it might be just as well if the Minister for the time being made up his mind that he was not going to have commissioners at all. If it transpires that it is necessary to change from that attitude, he would have to consider the question of a re-organisation of local government. I put it to him from my experience of these matters that people will resent being governed locally by a paid official, however little time he may have to spend in that responsible task.
In the past when a commissioner was appointed, and when a council was deprived of office, I understand the Minister had no power to reinstate that council without holding an election. Would it not be well to take power to reinstate a council without the necessity of holding an election? There is no reason why the manager should not act as the council in case of an emergency. Why not make a manager a commissioner and let him perform the duties without having to bring in other people when a council went out of office? When there is a manager I take it that councils will not go out of office in the same way as in the past, because the manager will be carrying responsibility for administrative acts, and these bodies will not be liable to be removed. Why should not the manager assume the powers of the council by order of the Minister in such rare cases? Perhaps the Minister would define the position of such councils, without having an election held after a certain period.
I would be very glad if we could have the position that Deputy Cosgrave has in mind, that it would not be necessary to have commissioners at all. I am afraid we cannot contemplate that at this stage, no matter how hopeful we may be about a new orientation under the managerial system. It would be very desirable if it could be done, but we cannot, I think, face it just at the moment. Even in this House I have heard some members express very strong views about the managerial system. One member voiced such an intense dislike to the system that he said he would see it would not work in his particular county. I do not know if there was much in that. I think that when these schemes are put into operation people see the advantage of them. One of the troubles that I sometimes come up against is that I find some local authorities, not very many, will not strike a proper rate. Some urban councils and town commissioners give a little trouble in that way. Naturally they do not want to face a high rate. If you got the position in any county where a council got at cross purposes with the county manager, and in that situation refused to strike a proper rate to enable him to carry out his work, the position would be serious. That is the sort of thing we want to provide against here. I would be very glad to see the position in which it would not be necessary to appoint commissioners. However, you always have to bear in mind that clashes may occur in some place or other, and we have to take steps to provide against them.
Question put and agreed to.
Sections 50 and 51 agreed to.
(2) The Minister, in exercise of the powers conferred on him by the immediately preceding sub-section of this section but without prejudice to the generality thereof, may by order—
(a) provide for the exercise and performance by deputy of the powers and duties of a commissioner who is sick or absent on leave,
(b) where a commissioner is a body, corporate or unincorporated, provide for the exercise and performance by members of such body of any powers or duties exercisable or to be performed by members of the local authority for whom such body is commissioner by virtue of their membership, and
I move amendment No. 47:—
In sub-section (2), page 22, to insert in line 36 before the word "and" the words "or by the lord mayor, mayor, or chairman (as the case may be) of such local authority by virtue of his membership".
The object of this is to make provision for the performance of any of the duties of a mayor or chairman while the members of his local authority are removed from office.
Amendment agreed to.
Section 52, as amended, agreed to.
Sections 53 and 54 agreed to.
A hereditament which but for this section would, as regards any local financial year, be a small dwelling within the meaning of the Local Government (Rates on Small Dwellings) Act, 1928 (No. 4 of 1928), shall not, as regards that local financial year, be a small dwelling within the meaning of the said Act if on the 1st day of April in that local financial year such hereditament is vested in the Irish Soldiers and Sailors Land Trust.
I move amendment No. 48:—
In page 23, line 43, to delete the word "Soldiers" and substitute the word "Sailors" and to delete the word "Sailors" and substitute the word "Soldiers".
Amendment agreed to.
Section 55, as amended, agreed to.
Where, at the expiration of any local financial year, any rate made by a local authority on any person in respect of that year is unpaid to the extent of an amount either equal to the whole or a part of such rate or would be unpaid to that extent but for the fact that such amount has been advanced and paid to such local authority by a rate collector, the following provisions shall apply and have effect, that is to say:—
(a) where one person is liable to pay to such local authority or such rate collector (as the case may be) such amount—
(i) if such person is a member of any local authority at the expiration of such financial year, he shall be disqualified from continuing to be such member,
(ii) such person shall be disqualified from being elected or chosen to be a member of any local authority until he has paid the whole of such amount.
(b) where different persons are liable to so pay different parts of such amount—
(i) every (if any) of such persons who is a member of any local authority at the expiration of such local financial year shall be disqualified from continuing to be such member,
(ii) every of such persons shall be disqualified from being elected or chosen to be a member of any local authority until he has paid the whole of the part of such amount which he is liable to pay.
I move amendment No. 49:—
In page 23, to delete in line 45 the words "on any person", to delete lines 51, 52 and 53, to delete in line 54 the words "such person" and substitute the words "the person liable to pay such amount to such local authority or such rate collector (as the case may be)", and in page 24 to delete lines 1 to 10.
What will the position of sailors and soldiers be now as regards the payment of rates?
They will have to pay the rates under this.
I do not see why anybody should be exempt. The people in the labourers' cottages have to pay their rates, and so should everybody else.
Amendment agreed to.
Question proposed: "That Section 56, as amended, stand part of the Bill."
I take it this section covers the case of a member of a local authority not residing in the area he represents. If he is in arrears with his rates in the area in which he resides he will become disqualified as a representative of the other area?
Question put and agreed to.
Where a sum is due to any person by a local authority and, at the same time, a sum is due to such local authority by such person in respect of rates or would be so due but for the fact that such amount has been advanced and paid to such local authority by a rate collector, the former sum may be set off against the latter either, as may be appropriate, in whole or in part.
I move amendment No. 50:—
In page 24, to delete in line 14 the word "amount" and substitute the word "sum".
Is not this a very bad principle to adopt—to set off one sum against another in the case of a person who owes rates to a local authority?
You have some people earning money from local authorities and they do not pay their rates.
How would a person be affected who is paying a combined rate and rent if the landlord does not pay?
That is dealt with in amendment No. 51.
I raised that point on the Second Reading of the Bill.
Amendment agreed to.
Section 57, as amended, agreed to.
(1) In this section—
the expression "sum for rates" means a sum due to a local authority in respect of rates or which would be so due but for having been discharged by a rate collector.
the expression "the costs" means all costs and charges, without any limit save that they be reasonable, which at any particular time have been incurred in or incidental to the taking, keeping, transporting or selling the distress in relation to which such expression is used.
I move amendment No. 51:—
In sub-section (1), page 24, to insert after line 17 and before the definition of "sum for rates" a new definition as follows:—
the word "rates" does not include rates due to a local authority, not being the commissioners of a town, in respect of a hereditament which is a small dwelling within the meaning of the Local Government (Rates on Small Dwellings) Act, 1928 (No. 4 of 1928), and which is occupied by a person who is not the owner thereof within the meaning of the said Act.
The object of this is to prevent a rate collector from distraining on the goods of the occupier of a small dwelling where the owner, on whom the rates are made, has failed to pay the rates.
Why is this confined to small dwellings? There are a lot of people, besides those who live in small dwellings, who pay a combined amount to include rent and rates.
What would be the position of a person who is regarded as living in a small dwelling and who has been accustomed to pay her rates independently for years? I know one case that has caused a considerable amount of confusion. The person in question is now pretty old. She had been paying the rates direct to the town rate collector. The latter is now demanding the rates off the landlord. There was no combined rent. When the landlord demanded the rates from the occupier, she objected and said that she was quite prepared to continue paying the rates to the rate collector. She objected because she thought she was going to lose something if she lost the status of a ratepayer.
The reason she is not liable is because the owner of the house is supposed to have included the amount for rates in the rent. This is a very old agreement and, apparently, it did not include rates. The old lady will pay rates directly but not the other way. I think that there is some restriction regarding rent and there is considerable confusion regarding the case.
Amendment No. 51 does not cover the case of a tenant who pays his rates in the rent to the landlord and whose landlord may not pay the rates.
It does not cover that case.
We raised that point on the Second Reading. It is a case that often happens. Anybody who is a member of a local authority must have come up against cases of landlords who collect their rents week after week, these rents including the rates. If the landlords do not pay the rates, are these tenants to be disqualified?
Are you referring to the case of a small dwelling?
There are large dwellings in respect of which rates are paid in the rent.
If the Deputy will send me an example before the Report Stage, I shall see if anything can be done about it.
Amendment agreed to.
The following amendments were agreed to:—
52. In page 24, to insert before sub-section (2) a new sub-section as follows:—
(2) Where the person liable to pay a sum for rates for which demand has been duly made does not pay such sum within six days after the making of such demand, the rate collector concerned may give to such person notice that he intends, if such person does not pay such sum within 14 days from the giving of such notice, to levy such sum by distress under this section.—(Minister for Local Government and Public Health.)
53. In sub-section (2), page 24, to delete all words from the word "the" in line 26 to the word "demand" in line 28 and substitute the words "a person to whom a notice has been given under the immediately preceding sub-section of this section does not pay the sum for rates to which such notice relates within 14 days from the giving of such notice.—(Minister for Local Government and Public Health.)
These amendments fully meet the points raised by me.
Amendment No. 54 not moved.
I move amendment No. 55:—
In sub-section (2), page 24, to insert in line 30, before the word "either" the words "together with the costs".
The collector may be obliged to incur costs in distraining. This amendment enables him to levy the amount of the costs as well as the distraint.
Amendment agreed to.
I move amendment No. 56:—
To delete sub-section (3).
Sub-section (3) states:—
For the purpose of a levy by distress under this section, a rate collector may break open in the daytime any house or premises to which he has been refused admission or to which he is unable to gain admission by any other lawful means.
On Second Reading, there was an animated discussion on this sub-section. I know that some provision must be made for investigation by a rate collector as to whether there are means or not, but the matter should be covered in some other way than that proposed.
An income-tax collector has these powers under the 1918 Act and I do not see why a collector of local revenue should be in a different position. If there is persistent evasion, it is impossible to deal with it in any other way.
Amendment, by leave, withdrawn.
I move amendment No. 57:—
In sub-section (4) to delete all words after the word "and", in line 41, to the end of the sub-section and to substitute the words "shall apply to the local Gárda Superintendent for such assistance".
From reading this provision, I take it that a rate collector would be entitled to go to a Guard on point duty and tell him to come along with him. I do not think that there is any justification for that. A rate collector is entitled to the assistance of a Guard if he deems it necessary, but he should have to go to the proper authority to get that assistance. He should be obliged to approach the officer of the Guards immediately in charge in the district, and he should not be given authority to require an individual Guard to come with him.
I take it that the intention of the amendment is that if a rate collector finds himself in difficulty he should call on a Gárda superintendent to provide him with assistance. If he had to look for a superintendent, he might lose his distress.
Is it not stretching things far to say that a civilian shall be able to call on the services of a Guard?
He is an official and he has the right to collect these moneys.
If the Guard is new to the locality, he may not know the rate collector and he may be called upon by a person who represents himself as a rate collector.
The rate collector is getting only the same powers that an income-tax collector has.
But the income-tax collector never exercises those powers, which he has under the 1918 Act. That is an unmoral document.
Members of county councils know what the practice is. If a rate collector is going to levy distress, he notifies the Guards the night before, if he thinks he will require their assistance. There is never any real urgency in requiring the services of the Guards. I object to any civilian being given authority to walk up to a Guard and say: "Come along with me."
The collector may be assaulted and he may have to call the Guard in.
There is an obligation on the Guard under other Acts in that event.
Would the Minister consider providing for application being made to the local sergeant of the Gárda?
If the rate collector is operating five miles from the Gárda station, he will ordinarily have to make application there if he requires assistance. I think it would be reasonable enough to require him to apply to the Gárda sergeant.
A Guard might be on special duty when the rate collector would approach him.
In a case like that, the Guard may be relied upon to act properly.
Yes, but he is obliged to attend.
They attend in all cases where application is made.
A good deal must be left to the discretion of the Guard.
But he is given no discretion under this provision.
The Guards are commonsense men.
They have no option but to go. The rate collector should be obliged to make application to somebody in authority.
The necessity for a Guard's assistance might arise suddenly when the collector was levying distress, and he should be entitled to call on the Guards for assistance.
What is the prevailing law?
It is a century old and is obsolete.
I do not think that it has ever caused any difficulty. Ample protection was always forthcoming from the R.I.C. and from the Guards. Why should we introduce this provision?
Distress is sometimes levied under magistrate's warrant. That would not apply at all in cases under this section.
That procedure was much more cumbersome and yet it was effectively carried out.
Amendment put and negatived.
The following amendments appeared on the Order Paper in the name of Deputy Brennan:—
58. In sub-section (5), to delete the word "whatsoever" in line 43 and to substitute the words "within the boundary of the county in which the liability to pay such rates occurs".
59. In sub-section (6), in line 56, to delete the word "whatsoever" and to substitute the words "within the boundary of the county in which the liability to pay such rates occurs".
I think the two amendments in the name of Deputy Brennan should be discussed together.
Amendments Nos. 58 and 59 may be discussed together.
I move amendment No. 58. We have set out in sub-section (6) that if the sum for rates in respect of which a distress is taken together with the costs is not discharged within a certain number of days, such distress shall be sold by public auction in any place whatsoever which the rate collector concerned thinks proper, and may be removed to such place for the purposes of such sale, and that pending such sale such distress may be kept in any place whatsoever which such rate collector thinks proper, whether such place is or is not a pound under the Pounds (Provisions and Maintenance) Act, 1935. Here we are giving very wide powers indeed to the rate collector.
I do not think there is any need for me to remind the House of the very unsatisfactory and unsavoury results we had from the shipment of stock from one part of the country to another for the purpose of sale. I think, at least, the owner of the stock ought to be entitled to have the stock sold or offered for sale within the precincts of the county where the rate is to be paid. I think he is entitled to some consideration and, consequently, I am moving that the stock will be sold within the boundary of the county in which the liability to pay such rates occurs. I think that is reasonable. I do not see any sense in taking a man's stock from County Roscommon to Dublin to be sold in Dublin, putting the cost of transport on the unfortunate man from whom the stock was seized and causing a lot of trouble in that way. I think we are certainly giving latitude enough in giving the rate collector the right to have them sold in any part of the county in which the rate is to be paid.
Against that, I think all the other Government Departments, the Land Commission, the Revenue Commissioners, and other bodies have power to remove stock to any place they wish and I think the local authority are entitled to have as much power to collect their rates as the Land Commission has to collect its annuities within the same county. I believe, from experience, and I think most county councillors know from experience, that if there is any use at all in the rate collector's warrant to distrain he should be able to dispose of stock in some market and very often they may not be disposed of in his own local market. Most county councillors know that from experience.
You could have a case occur in South County Kilkenny. The nearest place to dispose of the stock would be Waterford. I think what the Deputy has in mind is that they are put on a train and sent somewhere to be sold. That may happen but it is not what I have in mind at the moment.
There is quite a lot of that.
I know, but what I have in mind is not to make it more difficult for the collector.
In County Roscommon there has been seizure of stock very many times within the last 20 years for rates. I do not know of any one occasion on which they have been sold or had to be sold. Somebody has paid the rates.
It does not always happen.
But if the rate collector were to take stock from Roscommon to Dublin, or even as far as Athlone, the transport charges would be enormous on the poor unfortunate man who had to pay the rates and redeem the stock. That is what I am trying to safeguard as far as possible. If you can put any limit upon the transport charges or on any other such charges that may be put upon the unfortunate man who is in such poor circumstances that he is not able to pay the rates, I am quite agreeable, but I do not think it is fair to leave it wide open.
He has five days to deal with it.
Five days are not much good to him to chase his stock all over the country. They can be impounded anywhere within 100 miles. There is no necessity for the collector to impound them within the precincts of the county where the rate is to be paid. They may be impounded anywhere the rate collector desires. He can take them all over the country and need not, apparently, disclose where they are for five days.
It would be reasonable to expect that he would impound them for the five days within the precincts of the county.
He must not incur unreasonable cost.
How are we going to circumscribe his costs?
It is in the definition in Section 58 (1)—"the expression ‘the costs' means all costs and charges, without any limit save that they be reasonable..."
Who is to say what is reasonable and what is not reasonable?
The court can settle that part.
Who is to determine the sweet reasonableness of the cost?
The court, if there is an action for the rates.
If there is an action against the collector.
He can go out on the strength of his own warrant, without any court, and seize stock, take them from Roscommon to Dublin and, after five days, can sell them. He can do all that. I am trying to keep him within some circumscribed boundary.
If he incurs unreasonable expense, can he not be sued?
There is not much use in telling a poor unfortunate man that he can sue the rate collector because he has gone to too much cost.
He will have to get some other way of redress. If he is not able to pay rates he surely will not be able to take an action in the court.
I am afraid the Deputy is looking at extreme cases.
Is the Deputy withdrawing the amendment?
There is no use in trying to press it, but I think the Minister ought to consider that matter. I do not think it is fair.
Amendment, by leave, withdrawn.
Amendment No. 59, by leave, withdrawn.
Amendment No. 60 not moved.
I move amendment No. 61:—
In page 25, to delete sub-section (8).
I have the same objection to this sub-section as I have to a similar sub-section in another section. In sub-section (8) we are overriding all the law. We have been doing that, as a matter of fact, in three Acts, the Public Assistance Act, the Managerial Act, and this Act, in order to bring them into operation. Whether we have considered the impact on other Acts or not, we are going to make sure that nothing interferes with these. Consequently, we put ourselves outside the law. I do not think that is good enough.
If there are Acts to be amended in order that certain things can be done, let them be amended, and let them be brought up to date in some understandable form, but let us not put in things like this, that nothing will prevent us doing a thing we want to do even if it is not in accordance with the law.
We are making the law, of course.
Of course you are, and if there is anything you forgot you are going to put it into this.
Amendment, by leave, withdrawn.
Question proposed: "That Section 58, as amended, stand part of the Bill."
Arising out of sub-section (5), which deals with the number of days which a rate collector may keep stock which he has seized, without any extension of the existing provisions, it was generally felt that five days was rather too long a period. The expenses of keeping stock for five days would be fairly considerable and would reduce the amount left to meet the demand for rates. If the rate collector is compelled to keep, say, ten head of stock for five days, the cost of their maintenance would amount to a very considerable sum, and would certainly diminish the amount, if the stock had to be sold, that would be left to meet the debt. That is a matter the Minister should take into consideration.
Under sub-section (2) it would be possible for a rate collector to impound the car of a doctor who happened to be visiting the residence of a defaulting ratepayer at the time a seizure was made. I think that there should be some correction made as regards that provision. It is apparently intended also that any cattle found on the lands of a defaulting ratepayer may be seized. In sub-section (7) of the section, the Minister presumably intends to empower a person whose cattle are grazing on the lands of a defaulting ratepayer and which are seized to satisfy a claim for rates, to take action against the defaulter to recover whatever loss he suffered. There is the other case in which the rate collector may seize the wrong man's cattle. In any case, this method of recovering from a person who is unable to pay rates is not a very happy idea. The question arises as to whether this is really a moral law. Some years ago, I think in 1920, when we found it rather difficult to collect rates, the late Chief Justice on being asked for a decree in a case such as this section is intended to deal with, refused to give a decree on the grounds that it was against natural justice. I should like to know whether the Minister has taken any advice in regard to the extraordinary powers that are given in this section. It is quite true that in non-Catholic countries this is the law and it was in a non-Catholic country that the Act of 1918 to which the Minister has just referred was enacted. I have the greatest doubt, however, that the section as it stands would be regarded by any ecclesiastical authority as within the competence of Parliament to enact.
I should like the Minister to give us his experience as a country practitioner and his view as to the equity or justice of this method of collecting rates. I remember years ago a zealous soul in Ballaghaderreen wanted to collect a debt due to him. He got a decree and, under the then law, you could get yourself constituted a bailiff to enforce a decree by a certain procedure to which he resorted. He then started off with a horse and cart to collect fowl on the debtor's land. While he was chasing the fowl around the field, a rate collector came along and seized the horse and cart to satisfy a claim for rates against the place. The unfortunate creditor was obliged eventually to abandon his own seizure and to pay his debtor's rates in order to recover his horse and cart. I suppose a good many of his neighbours were inclined to comment on that: "The devil mend him," but it does seem to my way of thinking, and it always did seem to me, to be a very unjust method of collecting the local cess. So far as I am aware it has been the law in this country for years.
This section does not operate to change the law at all, but what I have seen happen not infrequently in the country is this. The man who is going down, who is unable to meet his rates, is the kind of man who usually takes in grazing. Ordinarily, in the West of Ireland people who put cows or cattle out grazing are small men, industrious small men who have managed to save a little money and who are in a position to buy more stock than they can graze on their own small holdings. They may put out two, four or six bullocks under a grazing agreement. Some fine morning the rate collector walks on to the farm where these bullocks are grazing and takes them away. The only remedy open to the man who owns the bullocks is to proceed against the owner of the land from which the bullocks have been taken.
Now, it is common knowledge that it is virtually impossible for any individual citizen of this State to recover a debt against a neighbour's land, no matter what measure of grievance he has against the man, but it is a comparatively easy thing for a public authority to recover a debt due by levying against a citizen's lands. The traditional hostility to individuals in this country who levy against a man's land is a very natural survival of the land war when it was expedient for us to combine against the contention that any individual had the right to evict his neighbour and those who went in for eviction, or for distraining on a neighbour's land, were regarded as emergency men and were treated accordingly. That healthy tradition has survived, but now the whole social situation in rural Ireland has changed. The landlords have been kicked out of the country and every man is his own landlord, but not infrequently the sense of public duty, which freemen ought to have, becomes confused by their recollection of the past and a legitimate distraint upon land is still regarded as being antipathetic to the sound instincts of the Land League. Therefore, the poor man whose cattle are seized for the rates of the individual upon whose land he had them is virtually left without any remedy at all. Why should the local authority be excused from the obligation of suing for the rates or from seeing that the decree is charged as a mortgage on the land and, if necessary, getting an order for the sale of the land?
The Minister has as wide an experience of the West of Ireland as I have, and he knows that many cases of hardship have arisen as a result of the exercise of powers granted by this section. I should be glad if he would tell us from his own personal experience what he himself thinks of the merits of this method of recovering rates which are in arrear, because I have never heard anybody defend it. I should be interested if any Deputy in this House who has experience of local administration would tell us, why in his judgment, the local authority who can sue with impunity, should be delivered from the obligation of suing and should be allowed to pass on that obligation to the defaulter's neighbours, who it is notorious are quite unable to sue, especially when these neighbours are probably the decentest individuals in the district—enterprising go-ahead men who are earning more money than the average fellow would earn on the holdings they have. I really think the Minister should consider the whole question on the merits, that we should make up our minds that this is not a good way of collecting arrears of rates, abolish this procedure and avail of this occasion to revise the method by which local authorities collect these arrears.
I do not like this section, and never did since the Bill got its Second Reading. There is no doubt that the right to seize for rates has been given to rate collectors since as far back as 1836, but it was very infrequently exercised, for a number of reasons. One of those reasons was that the act of seizure was hedged around with a lot of technical difficulties, and the rate collector had recourse to those methods only when he felt that that was the only way of dealing with the matter. The ordinary courts are open to the rate collector for the recovery of rates. What I object to about this section is that it is putting the rate collector into such a position that no matter how he carries out the seizure he is not going to be answerable to anybody. First of all, he can summon to his aid the members of the Civic Guard and, secondly, by sub-section (8) of the section "nothing done under and in accordance with this section shall be questioned on the ground that it is not done under or in accordance with any other enactment". Something that the rate collector had failed to do, or something that he had done in defiance of another enactment, was usually a ground for bringing some proceedings against the rate collector for wrongful distress. The Minister recognised the right of the ratepayer to bring proceedings against the rate collector if anything wrong had been done. He mentioned that in connection with the discussion as to reasonable costs. But this section to all intents and purposes places the rate collector in such a position that he can snap his fingers at everybody, and go ahead. The result will be that, once the rate collector realises his position, he will in practically every case have recourse to the powers given to him in this section. For that reason I very strongly object to the section.
I think most local authorities found it almost impossible to get the rate collectors to operate the power they had under the old legislation, when they could seize on their own warrant. That was the difficulty with most local authorities in cases where it was necessary to make seizures, but I am afraid under sub-section (7), to which Deputy Cosgrave took exception, you are going to do damage to the rate collection. Take the case of a man who lets all his land for grazing on the 11-months' system. That land immediately becomes immune; the stock on that land becomes immune from seizure. That is the position under sub-section (7), as I read it.
It includes the goods and chattels of another person. If I take land from my neighbour who owes rates and I put stock on it, and those stock are seized by the rate collector, I am entitled to recover from the rate collector?
No; from the owner of the land.
The other person is the owner of the land.
I think that section is somewhat similar to what was in the old Act—it was something to that effect—and I do not think it will do any good. Much play has been made here with the suggestion that, in the case of a person who owes rates, no powers should be given to the rate collector to collect those rates. Quite a number of local authorities find great difficulty in collecting a certain amount of the rates in their area.
Can they not sue for them?
They sue for them, but they find difficulties there about which Deputy Dillon may know nothing.
I was ten years on a local authority, and I ought to know all the difficulties.
It may not operate everywhere, but some local authorities experienced great difficulties.
The county councillors are afraid to sue their neighbours, but they want to get the unfortunate farmers to do it.
They are not a bit afraid—not a bit in the world. Everybody who owes rates is not always a poor person.
Why do you not sue them then?
They are sued, but there are so many ways of getting out of paying that some local authorities have been asking the Minister to deal with thousands of acres of semi-derelict land in those areas, in regard to which rates have been outstanding for probably the last 20 years, but no steps have been taken to deal with them.
Why have they not been taken?
They have not sufficient power to deal with them.
Why have they not the power?
They have been sued, and decrees got against them.
I do not know whether or not the county council has power to sell the land. The Minister for Finance is here now, and he is the Minister who is most interested. It is well known to everybody that a large portion of the land of this country has been paying neither annuities nor rates, and the Land Commission are the very people who have power to deal with the matter. Our complaint as a local authority is that they do not exercise those powers and collect the revenue for the Minister for Finance. A great many people in certain portions of land all over the country have not been paying any rates or annuities for the past 20 years or longer. I know several holdings which owe a sum of £1,000. I think Deputy Belton knows a number of them too.
I do not know any of them.
I know any amount of them.
Is the Deputy not chairman of the county council?
The county council have done all they possibly can. They have done all they were legally advised they could do.
Yes. They did everything possible as advised by their legal advisers.
They failed to get the rates through the operation of the law. They failed completely, and the land is there paying no rates and annuities. But the neighbouring farmers are paying those rates and annuities. That is our objection all the time. We blame the Land Commission for being negligent in their duty in acquiring that land when they know it has become derelict. The local authority has grave cause of complaint against some Government Department on that matter. They find themselves powerless to do anything, and they think that the Land Commission and the Minister for Finance—who is most interested in getting some part of this revenue in land annuities—should take action in regard to those derelict farms. Nobody has been living on a number of them for 15 or 20 years. That is why I am not satisfied with this sub-section (7).
Had not the rate collectors substantially those powers before?
But there are those arrears of rates. Why did not the exercise of those powers get in the rates?
The rate collectors would not operate them.
I am old enough to remember coercion Acts passed by the Government, and if such an Act as this were passed by the British Government for this country we would have every orator in this country at every crossroads in the country on the following Sunday——
This is a different thing altogether.
It is not. The poverty of the country manifests itself in arrears of rates, and no coercion mechanism you can devise will rid the country of that poverty. We are going to have those powers given to the rate collectors at a time when there would be no public representatives to put on the brake. Is that not the position? You are going to have managers with complete powers. They, and they only, will have power to collect the money, and to spend it, and all the powers the representatives will have is to make the rate.
And appoint the rate collector.
Yes, and appoint the rate collector, and, of course, when the rate collector is appointed, he becomes a law unto himself, and is given these powers to seize —I do not propose to go into the broad question—in the case of lands semi-derelict, the owner of which fails to pay his rates. The rate collector can swoop down and collect the rates by distraint of grazier stock. That is going to cause a very serious economic condition of affairs. If that happens on a farm, the owner will not be able to let that farm the following year. Nobody will put stock to graze on it, and no rates will be collected, by distraint or otherwise. Then you are up against the position of disposing of the farm to get the rates. I do not think the law as it stands gives precedence to rates arrears on land over a private or a bank debt. That is one of the great troubles the county councils are up against. After going to the trouble of securing a council against loss in respect of arrears of rates, they find that they have not got priority over private debts.
As I understood the powers of a rate collector heretofore, he had power on his own warrant to seize, and I know several instances in which that power has been exercised. The county council of which I have experience deprecates the use of that power, and have told rate collectors under their charge that they would wish proceedings to be taken in the courts to recover arrears of rates, although, of course, the collectors had power to throw the council's suggestion aside and take direct action himself. They have, however, not done so. I do not know if it is intended by this Bill to make it obligatory on rate collectors to proceed in this way, and if there is to be no alternative method as heretofore of taking the matter to court. I should like the Minister to enlighten us on that point.
What is the Minister's experience in this respect?
So far as my experience goes, there has not been, except in very occasional cases, much difficulty in collecting rates certainly in the West of Ireland but, on the other hand, that was the best area from the point of view of both land annuities and rates in the whole Twenty-Six Counties, due to some extent to the size of the holdings and the industry of the people, or perhaps to the size of the holdings being more suitable than in other places. I acted from time to time for rate collectors in the court and the cases were mainly settled before reaching the court. There are, however, certain individuals, as the Deputy knows, who will not pay until the last minute, and I remember cases long ago of people who would not pay land annuities until they got word from the postman that he had delivered the long envelope to a certain office. There are very few of that type, but I have occasionally seen cases in which there was a good deal of evasion by the ne'er-do-well type or by these people who are very cute and shrewd and who try to get away with it.
I am not the judge of the morality of this matter. I am merely trying to secure that in extreme cases the collector will not come along and say: "We are supposed to collect our rates, but you have not given us sufficient powers to do so." In the normal course of events, I assume that rate collectors will bring these people to court and sue them. The ordinary procedure is to serve the demand notes and try to collect the rates. Energetic collectors follow that course, but when they have difficulties in the rare cases, they are entitled to be provided with the machinery to enable them to see that the person who is perhaps dishonestly trying to evade responsibility does not get away with it. This does not mean, as Deputy Belton suggested, that the ordinary method of procedure is removed, by which a demand note is served and the rates collected in the ordinary way by taking people to court, if necessary. This, I assume, is only to be used in very extreme and rare cases. There is nothing to prevent the county council following the normal procedure and taking people to court, but, in the 1924 Act, there was a provision which went as far as this, if it did not go further. Section 2 (1) of the Local Government (Collection of Rates) Act, 1924, says:
Immediately upon receipt from the Minister of a warrant under this Act, the under-sheriff shall proceed to levy the sum therein certified to be due by the defaulter by seizing all or any of the goods, animals or other chattels within his bailiwick belonging to the defaulter named in the warrant or to be found on the rateable property mentioned in the warrant, and for such purpose the under-sheriff shall have the like powers of seizing all goods and chattels found on the rateable property as a poor rate collector has under his warrant, and shall also have all such rights, powers and duties as are for the time being vested in or imposed on an under-sheriff by law in relation to the execution of a writ of fieri facias.
But, of course, that is really a grafting on to the old poor law officer's powers.
Just the same distance as the old law went.
What is the date of the Act?
Has it since been repealed?
I think it had temporary effect.
The Minister realises that that was a special Act to deal with the seizure of land during and immediately subsequent to the civil war when people went in and took over men's land without any authority?
This was the law for the past 50 years.
That is the position. It is the law for the past 100 years, but, while it is, there may be a clearing up of the situation in these sections, from the point of view of codification and no powers are being taken which are not already in existence.
What does the Minister think of the fairness—approaching the matter de novo—of going in and taking a poor man’s cattle in respect of the land owner’s debt? My experience—I see that Deputy Allen has left—on a local authority was that what in fact happened was that we gave a bonus to the rate collector, if he completed his warrant before a given date. In practice, what happened was that the rate collector collected as much of the rates as he could. He then borrowed from the bank, or from his friends, the balance of his warrant, lodged it on the due day, and proceeded to sue the defaulters, and he generally had no difficulty in recovering. He could get a decree in court, and if the people did not pay he could either get it charged as a judgment mortgage on the land and sell the land, or hand it to the sheriff for seizure of goods, and if it were returned nulla bona he could get an instalment order. If a man takes the job of rate collector and lodges his own money, not to qualify for his salary, but in order to qualify for a bonus, surely he is getting paid something, and what he is getting paid to do is to incur whatever odium or unpopularity the suing of a defaulting ratepayer may entail. If he does not do that and if the rates are not paid, he can lodge a defective warrant and say that he has failed to get the rates, and the local authority, as far as I know, can proceed, through their own law officer, to recover, with the county council as the plaintiff.
Why should the rate collector of a local authority have available to him machinery for the collection of a debt that no other citizen has? Why should the rate collector of a local authority be able to do me an injustice that no other citizen of this State could do to me? Let him seize Deputy Meaney's property to satisfy Deputy Meaney's debt, but why should nobody except a rate collector claim the right to seize Deputy Meaney's property to satisfy my debt? There will be those who will say that if the rate collector goes to seize cattle on a man's property, and if he is confined to the seizure of the debtor's cattle, he never can tell whether any cattle on the land are, in fact, the property of the debtor or not, and that neighbours will come forward to claim the cattle as theirs in order to help the debtor, but that applies to us all. If I sell one cwt. of flour to a man. I have to get my money in some way. If he fails to pay I can get a decree and the sheriff can claim his property in satisfaction of the debt.
I can go to the court and get a judgment, have it registered as a mortgage, get it declared well charged, seize the place, and I have all the other remedies of the law available to me. Why must the local authority be given this additional power, more especially when its penal effect falls not upon the defaulting ne'er-do-well but upon the bona fide neighbour whose only crime is that he is somewhat more industrious than the other people in the district?
Had not the Land Commission the same power to take cattle on the land?
Is that so? I was not aware of it.
There are no proceedings for arrears of annuities now.
Well, let us not go into the incidents that led to the passage of the 1933 Land Act.
Nor of any other Land Act. Its provisions, I do not think, can be quoted as a precedent here to-day, because we fought them vigorously at the time, and it is idle to say that they were passed with the unanimous consent of the House. There was very much opposition to them. I think it is a thoroughly bad principle that anybody in the State should be given the right to seize one man's goods in satisfaction of another man's debt, and I cannot imagine the Minister for Local Government and Public Health getting up here and saying: "Well, I do not see anything wrong with it." I think that, in the back of his own mind, he thinks it is wrong but that, somehow or other, it has been going on for so long he does not see any reason to change it now. It does not seem to me to be fair and I should like to know if the Minister, from his own experience in the country, could say that he thinks it is fair. We all know that it is a quick and an easy way for the local authority to get their rates, but is it a fair, just way? I do not think it is.
The alternative is to let the local authority collect their debt in the same way as I collect mine. If Deputy Hickey lent his neighbour in the City of Cork £5, surely he would not claim the right to seize my armchair or an animal belonging to me in order to satisfy the debt of the fellow in Cork?
The district justice might give a decree.
Would not Deputy Hickey go down to the county court and get a decree for £5 and then send it to the sheriff, and if the sheriff failed to collect, then Deputy Hickey would move for an examination order and an instalment order.
He might be told that there were too many charges prior to his, and get nothing at all.
Very well. I do not mind your making a provision that the rate will have the right to be registered as a charge prior to all other charges.
I do not mind, if you do that. Section 58 is the section which gives the local authority power to collect its rate by this machinery and I think that this is unfair. I think we ought to be allowed to proceed by way of judgment mortgage and sale. Deputy Belton says to me: What can they do supposing they find that there is a first, second, third, and fourth mortgage on the place already? Very well. I have no objection to putting a section into this Bill providing that a judgment mortgage, declared well charged, for rates, shall take priority over other charges.
Because it is up to the mortgagees of a place such as is envisaged here to exercise due care and raise their own mortgage in good time if the occupier is not paying the rates, lest their mortgage be defeated. They can do that at any time, and I have no objection to giving the rates priority over other mortgages. That does not say that it is fair to take Deputy Victory's cattle to satisfy Deputy Meaney's debt. Provide the local authority with any power you like effectively to secure payment of the rates; let it be done at the expense of the mortgagees of the place because it is their duty to watch their mortgage and see that it is not imperilled by the non-payment of rates, but do not proceed by the method suggested here. Would the Minister say, in his personal judgment as a practitioner familiar with these proceedings, that it is fair that Deputy Victory's cattle should be seized for Deputy Meaney's debt?
There is no comparison at all.
Is not that what happens?
Does not Deputy Dillon realise that it is possible for, say, two brothers living in the same home to have two separate patches of land, where one pays the rates and the other brother does not, and they swop the cattle?
What is to prevent the local authority suing the defaulter and, on the sheriff returning a nulla bona as a result of this swopping, getting the decree well charged as a judgment mortgage?
Yes, on the land, and putting it up for auction and selling it.
Piling on the agony for the defaulter.
Why does he not pay? Is it not his own fault that there should be this agony piled on him?
I agree that it is his own fault but I do not agree with the other suggestion.
It is our purpose to get the fellow to pay. Does Deputy Meaney seriously imagine that it is going to hurt him more for me to sell Deputy Victory's cattle or his farm? I bet you he would feel it more painful if I were to sell his cattle than if I were to sell Deputy Victory's cattle? My opinion is that if he saw me seizing Deputy Victory's cattle he would break his heart laughing at Deputy Victory. Deputy Victory would feel sore, not Deputy Meaney. My plan would be, if Deputy Meaney will not pay his score, to get a decree first of all, to bring him to court and have the decree well charged. I would then raise the judgment mortgage, sell his place and present him with a bill for the costs, and I believe he would be the sorest man in North Cork when I would be finished with him; and the next time the rates became due I bet he would be running like a redshank to pay them. It does not seem to me to be reasonable to lean on Deputy Victory because Deputy Meaney is not an honest man. That is the whole burden of my case.
Deputy Dillon talks about the local authority getting a decree and putting up the land for sale. Does the Deputy really think that anybody in places like Mayo or Roscommon will buy a small farmer's land in such circumstances?
I see the Land Commission officials sponsoring land grabbing operations all over the country. What else did you pass the 1933 Act for?
I know several cases where the Land Commission put holdings up for sale for non-payment of annuities, and in 20 years I know of only one case in which they succeeded in selling the land.
Land grabbing by public authorities has become quite fashionable in this country recently, Deputy.
I regard this section as very objectionable and I considered it necessary to submit six or seven amendments to the various subsections. Apart from the controversial point raised by Deputy Dillon in relation to the method of collection by distress warrant or otherwise, there are very many objectionable features in the section. Amongst other things the section provides that a rate collector may demand the services of a Guard and must get them. He is not compelled to go to the superintendent or the sergeant. He demands the services of a Guard and the Guard must attend. My point is that a Civic Guard is under discipline, under the discipline of his own officers, and he is probably sent out on some special duty, be that what it may—possibly to make a report on the movements of certain persons. Under this section a rate collector has the right to say: "Come along with me," and he must go. The Minister says that he must go. I do not think that is fair to a disciplined officer.
Further, the rate collector may seize stock off lands and he may detain the stock for five days in any place that he thinks fit. That place might be 100 miles away or it might be in some backyard. So far as this section is concerned, there is no obligation on the rate collector to see that the stock are properly maintained. There may be a section in some other Act covering that point, but there is nothing dealing with it here. The rate collector may take them to any place he likes in order to sell them. He may take them 100 miles away and put all the transport charges on the unfortunate man whose stock are being seized. The first thing to be paid out of the price of the stock will be the costs, not the rates. The animals will be sold and the costs may be so great that the price obtained will not cover them and the unfortunate man whose property is in question will still have the rates to pay, apart from whatever remains due by way of costs.
The rate collector is being given authority of a very widespread character. His powers are being made as wide as they possibly can be made. The Minister said there may be cases in which the rate collector will require extra powers. In my experience I have never come across such cases. I have never heard a rate collector complain that he had not all the powers he wanted to collect the rates. We never have had much difficulty in the matter of rate collection in my county. It was a kind of revelation to me to hear Deputy Allen saying that there are farms on which annuities and rates are due for at least 20 years. I do not know of any farms in my county in such a position. There may be a few tracts of red bog on which rates are not paid, and on which there is nothing to be seized, but otherwise the rates have always been regularly paid.
The practice is that if a seizure is made the rates are promptly paid by the person whose property has been seized. In some instances that person may not be the rated occupier and may be merely in the position of grazing the land. In such cases arrangements are made for the payment of the rates. In my opinion there is no necessity to tighten up the machinery or give more powers to the collector to enable him to collect the rates. On the whole, as Deputy Cosgrave has mentioned, unwarranted powers are being sought under this section. It is giving to the rate collector wide powers to penalise the ratepayer, without placing upon him any responsibility. For that and for other reasons I object to the section.
What objection has the Minister to putting a section in this Bill giving priority to rates over other charges? He is quite well aware that judgment mortgages have been got in a certain county running into thousands of pounds, and there was a feeling when this policy was adopted in order to secure the rates for the council concerned that the rates, even as judgment mortgages, would have priority over other mortgages and charges. In the course of time that became doubtful. There is no other way except to seize the land. I do not know if county councils have the power to seize lands and sell them. It has been stated here that they cannot be cashed, so there is no remedy that way. The Minister knows that if land changes hands only two years' arrears attach to that land and the other arrears attach only to the person who has passed out and who, in those circumstances, would be penniless and the council would lose the rates.
In my opinion, rates and annuities should have a prior claim over any private debt or loan that might be on the land. Why is that not perpetuated in the case of judgment mortgages? In my county there are arrears running to over £100,000. There is not a hope of getting thousands of that amount from current income, and the Minister knows that well. We have registered thousands of pounds as judgment mortgages. If they must take their place at the bottom of the class, then that mortgage is not worth much.
Why do you not make them bankrupt if you are serious about getting in the rates? You will get them then.
I am sure the Minister is not advocating something for his profession.
I am not, but I wish the county council would adopt a more definite attitude.
What objection has the Minister to giving priority to rates over other charges? The rates were there before any debt was incurred on the land. It is an annual charge, and the annuity is the same. I do not see how the powers that are given here will help. I am sure the Minister does not want to make any ratepayer bankrupt; he wants to get in the rates. If the rates are not paid, that property should pay them. It has been admitted here that you cannot cash them. I do not agree with Deputy Dillon. I think that is a great economic loss. I hold that a farmer has no prescriptive right to protection that a shopkeeper has not. If a shopkeeper does not pay his way, his creditors come and foreclose on him. the farmers should have no more protection in the economic world than the shopkeeper or manufacturer or anybody else. If you rush to sell out now, there would be no buyers. That has been freely stated. Will the Land Commission buy people out of their land and out of debt, and take over the bill, and hand out that small or large holding, as the case may be, to landless men? I do not think they will. They should be helping the local authority to get arrears of rates that have accumulated through economic stress in the last ten or 20 years, through the deflation of the currency which piled on the millions of frozen debts that are on the land at the present time. How does the Minister hope to get them out of these debts if he does not come to the assistance of the local authorities and of the farmers? The banks are piling it on too strongly somewhere.
All of which is irrelevant to this section, and indeed to this Bill.
Following the suggestion——
The alleged action of the banks has no bearing on the section.
Following the suggestion of Deputy Dillon that priority should be given to judgment mortgages for rates, I think it has been held in a case in court that it is doubtful now whether a judgment mortgage, when registered, will have priority over a bank mortgage or other mortgages on the land. I do not know whether I am speaking, on that point, from information about a case decided in the courts or from a legal opinion that came before me as a member of a local authority. I think that it is doubtful, and that the judgment mortgage has to take its place behind the other. Why does the Minister not tackle that? If priority is given to it, that judgment mortgage will carry 4 per cent. interest. That ratepayer can pay his current rates and can pay the interest on the arrears of rates, and he is not a charge or a burden on the rest of the ratepayers. He is paying interest on his arrears and the time may come when he would be able to pay off the arrears of rates as well as the current rates. If that priority is not given to this charge, the local authority cannot wait and that man must be sold out and his land seized. Then the Minister comes along and shoves in other people's stock there, in danger of being seized by direct action on the part of the rate collector.
The Minister quoted an Act passed in 1924. I am quite sure he will admit that, in all the circumstances of that time, such action was necessary. He remembers that all the big farms round Easkey were striped and parcelled out and allotted to local people by an adventurer who spent a couple of years afterwards in jail. He got subscriptions from the poor people who expected to get land. That was rampant all over the country and had to be put down by more or less wild West methods. The procedure suggested here is more or less wild West methods. It is not giving the men who got into difficulties a chance to get out of them. It is not protecting the go-ahead farmer or farmer's sons in the country who take grazing and mind their business, who work hard and make a livelihood for themselves. Through no fault of theirs in getting knowledge on this point, the rate collector may come and swoop down on their cattle and sell them. To whom can they turn for compensation? To the man who cannot pay his rates and will not pay his rates? There is no compensation to be got there.
It is like something one would expect from Herr Hitler in occupied Europe to-day—something that you would do not to your own people but to a conquered people. If that attitude is persisted in, I do not know where we will find ourselves but, certainly, it will not be in the position of self-sufficiency. I strongly urge the Minister to consider, on a future stage, this question of priority of a judgment mortgage for rates, making rates in any shape or form a first charge on the land. If he would do that, well and good. If he desires a bargain on that point, I would give him in this Bill even the direct method of collection, if he would do that to protect local councils and ratepayers who have got into difficulties. He would be helping the country economically by considering it. I would be glad to hear him on this point and, if he is not prepared to agree, to hear his reasons for refusing.
I do not wish to say any more than this: everybody seems to be taking up the attitude that big powers are being taken under this Bill that do not exist already. There is no extension of powers under the section. They are only a clarification of the powers that already exist and have been in existence for very many years.
But there will be no representative council as a buffer between the rate collector and his ratepayer.
That does not alter the law as it stands. I would like to be in a position to say that the local authorities can do what the Deputy wants.
The Minister is the man to do that.
There are a number of other priorities which would arise if we make a proposal of that kind. I am not going into the question of rate collection, but am trying to clarify the position and to make it easier and less costly for the ratepayer. When one tries to do that, we are told that we are adopting Herr Hitler's methods or those of somebody else. What will happen under the procedure that is being clarified is that a rate collector, instead of going to a solicitor's office and incurring expenses and piling up costs, will go to the man himself. If the man does not pay after reasonable notice has been given to him, the collector will collect it or seize the stock.
Does the Minister not realise that a solicitor will get time? It is one thing for a man to get time for a month or two and another to find that his stock is seized to-day.
Rate collectors are reasonable people, and where any effort is made to pay they have always been able to give time and have taken payment by instalments.
Then district justices must be wrong when they give five or six months for payment by instalments.
it is not my right to criticise any court.
Section, as amended, agreed to.
(3) Every person aggrieved by any amendment under this section shall have the same right (if any) of appeal therefrom as he would have had upon the making of the relevant rates if those rates had comprised such amendment and, as regards such person, the rate in respect of which he is aggrieved shall be considered to have been made at the time when he received notice of such amendment.
I move amendment No. 62:—
In page 25, to insert before sub-section (3) a new sub-section as follows:—
(3) A local authority shall give notice to the Commissioner of Valuation of every amendment made by them under this section which involves any departure from the particulars stated in the relevant valuation list prepared by the said commissioner under the Valuation Acts.
This amendment requires a local authority amending a rate to notify the Commissioner of Valuation.
Amendment agreed to.
I move amendment No. 63:—
In sub-section (3), page 25, to delete in line 53 the words "he received" and to add at the end of line 54 the words "was given to him".
Amendment agreed to.
I move amendment No. 64:—
In page 26, to add at the end of the section a new sub-section as follows:—
(5) The powers, functions and duties conferred and imposed on the council of a county by this section shall be deemed for the purposes of the County Management Act, 1940. (No. 12 of 1940), not to be powers, functions, and duties in relation to the making of a rate.
Amendment agreed to.
Section 59, as amended, agreed to.
Question proposed: "That Section 60 stand part of the Bill."
Am I right in reading that by Section 1 (b) valuations will become retrospective or merely become effective when the Act comes into operation?
There is a provisional valuation first pending the Commissioner of Valuation coming along and making the permanent valuation. The permanent valuation will be retrospective.
Presumably the powers of the amendment have effect after the rate has been demanded and the first moiety paid. Does it become retrospective for the first moiety or take effect from the next rating?
It will not come into effect until the next year, and will then be retrospective.
Question put and agreed to.
Section 61 agreed to.
(b) there shall not be reckoned any sum borrowed by such local authority for the purpose of defraying the expenses of any work in respect of which the Minister has, on the application of such local authority, certified that it is primarily work for the relief of unemployment,
(c) there shall not be reckoned any sum borrowed by such local authority by virtue of an authorisation given by the Minister under the next following section.
On behalf of Deputy Brennan, I move amendment No. 65:—
To delete paragraph (b).
As I understand this matter was raised on the Unemployment Relief Works Bill, I take it this amendment was put down largely to preserve an appearance of consistency. Objection was taken to the same provision in the Unemployment Relief Works Bill by which such moneys are not included in the limitation of debts of local authorities. As it was passed in the other Bill I suppose nothing can be done about it here.
Amendment, by leave, withdrawn.
I move amendment No. 66:—
In page 28, to delete in line 31 the words "the next following section" and substitute the words "sub-section (3) of Section 3 of the Local Authorities (Financial Provisions) Act, 1921".
Amendment agreed to.
Section 62, as amended, agreed to.
(2) This section shall continue in force until the 31st day of December, 1941, and shall then expire.
I move amendment No. 67:—
In sub-section (2), page 28, to delete in line 39 the figures "1941" and substitute the figures "1942".
This deals with the delay which took place.
Amendment agreed to.
Section 63, as amended, agreed to.
(3) The total amount standing at any time borrowed under this section by a public assistance authority and not repaid together with the total amount then remaining payable by such public assistance authority in respect of any sums borrowed under Section 61 of the Local Government (Ireland) Act, 1898, shall not exceed one-fourth of the aggregate amount of the valuations under the Valuation Acts of all hereditaments situated in the public assistance district of such public assistance authority.
(4) The Minister for Finance may lend to a local authority money borrowed under this section as if such loan constituted a local loan within the meaning of the Local Loans Fund Act, 1935 (No. 16 of 1935), and was authorised by an Act of the Oireachtas.
I move amendment No. 68:—
In pages 28 and 29 to delete sub-section 3.
The sub-section is not necessary as it is provided for in Section 57 of the Public Assistance Act.
Amendment agreed to.
I move amendment No. 69:—
In sub-section (4), page 29, to delete line 6, to insert in line 7 before the word "as" the words "may be lent to a local authority by means of an issue from the Local Loans Fund", and to delete in lines 8 and 9 the words "Act, 1935 (No. 16 of 1935)" and substitute the words "Acts, 1935 to 1940".
This is a drafting amendment necessary on the passing of the Local Loans Act, 1941.
Amendment agreed to.
Question proposed: "That Section 64, as amended, stand part of the Bill."
Does the Minister mean by sub-section (1) that a board of health as at present constituted can borrow for public assistance purposes? My experience on a board of health is, that it may consist of a number of members not elected by suffrage at the triennial election. Is it contemplated that such a body will have power to borrow? Take the Dublin, Rathdown or Balrothery Boards, they are nearly 50-50 elected and non-elected members. Would they have power to borrow money?
They will. I take it that the section does not contemplate a body that is not elected having responsibility for borrowing.
Except some joint bodies.
Does the Minister not think that a bad principle?
As an instance take Grangegorman Joint Mental Hospital Committee.
My experience is that a body composed of members who are elected to one body, and who are then nominated and constitute another statutory body, do not take the same interest in public money as they will take where they are directly elected.
Any body that is given power over money should be responsible to those electing it.
You cannot have it that way in the case of some bodies, the members of which are selected as a rule because of their interest in particular work.
I am a member of both types of bodies and I cannot bring myself to take the same interest in a body on which I am nominated as in one to which I am elected. I am told the same thing by other members generally. It is a bad principle to have nominated bodies given power to borrow or to spend money. In the new Europe I do not know if there will be any authority for spending money as the managers will do it.
Question put and agreed to.
(1) Notwithstanding anything contained in any other enactment, the accounts of the receipts and payments of a local authority and of the committee and officers thereof shall—
I move amendment No. 70:—
Before Section 65 and in Part VII to insert a new section as follows:—
65.—In addition to the bodies specified in sub-section (2) of Section 2 of this Act, each of the following bodies shall be a local authority for the purposes of this Part of this Act, that is to say:—
(a) a vocational education committee.
(b) a committee of agriculture.
This brings in vocational committees and committees of agriculture regarding the audit of the accounts.
Amendment agreed to.
I move amendment No. 71:—
In sub-section (1), page 29, to delete in line 14 the word "committee" and substitute the word "committees".
Amendment agreed to.
I move amendment No. 72:—
In page 29, to insert before sub-section (2) a new sub-section as follows:—
(2) The auditors appointed by the Minister for the purpose of carrying out the audits under this section of the accounts of local authorities shall be called local government auditors."
This gives statutory recognition to the title of Local Government auditors.
Amendment agreed to.
Section 65, as amended, agreed to.
(1) For the purposes of this section—
(a) a committee mentioned in sub-section (2) of Section 2 of this Act which is not a joint committee shall not be a local authority,
I move amendment No. 73:—
In sub-section (1), page 29, to delete line 36, to insert at the end of line 39 the words "for the purposes of this section", and to delete lines 40 to 45.
This is consequential on amendment No. 70.
Amendment agreed to.
Section 66, as amended, agreed to.
Every application either to the High Court or the Minister under Section 12 of the Local Government (Ireland) Act, 1871, consequent upon a decision of the auditor on the audit of the accounts of a local authority shall be instituted before the expiration of the prescribed period.
I move amendment No. 74:—
In page 30, to insert in line 33 before the word "auditor" the words "local government".
This is consequential on amendment No. 72.
Amendment agreed to.
Section 67, as amended, agreed to.
(1) Where on the audit of accounts of a local authority any sum is, under Section 12 of the Local Government (Ireland) Act, 1871, decided by the auditor to be due from any person and no application under the said section consequent upon such decision is made within the prescribed period either to the High Court or the Minister, such person shall pay such sum to such local authority before the expiration of six weeks from the date of the certificate of the auditor certifying such sum to be due from such person.
(a) on the audit of the accounts of a local authority any sum is, under Section 12 of the Local Government (Ireland) Act, 1871, decided by the auditor to be due or not to be due from any person, and
(b) an application under the said section consequent upon such decision is made within the prescribed period either to the High Court or the Minister, and
(c) it is decided on such application that such sum or any part thereof is due from such person,
such person shall pay such sum or such part thereof (as the case may be) to such local authority before the expiration of six weeks from such decision.
I move amendment No. 75. This, and amendment No. 76, are merely variations in the terminology to cover surcharges:—
In sub-section (1), page 30, to delete in lines 37 and 38 the words "under Section 12 of the Local Government (Ireland) Act, 1871, decided" and substitute the word "certified", to delete in line 39 the words "under the said section", to delete in line 39 the word "such" and substitute the word "the", to insert in line 40 before the word "is" the words "of the auditor", and to insert in line 41 before the words "such person" the words "under Section 12 of the Local Government (Ireland) Act, 1871, as amended or applied by any other enactment".
Amendment agreed to.
I move amendment No. 76:—
In sub-section (2), page 30, to delete in lines 47 and 48 the words "under Section 12 of the Local Government (Ireland) Act, 1871, decided" and substitute the word "certified", to delete in line 50 the words "under the said section", to delete in line 51 the word "such" and substitute the word "the", to insert in line 51 before the word "is" the words "of the auditor", and to insert in line 52 before the word "and" the words "under Section 12 of the Local Government (Ireland) Act, 1871, as amended or applied by any other enactment".
Amendment agreed to.
I move amendment No. 77:—
In page 31, to insert before sub-section (5) a new sub-section as follows:—
(5) Where an auditor or other person incurs reasonable costs and expenses in connection with the recovery of a sum required by this section to be paid to a local authority and obtain none or some only of such costs and expenses from the person by whom such sum is due, such local authority shall pay such costs and expenses or the balance thereof not obtained as aforesaid (as the case may be) to such auditor or other person, together with a sum representing reasonable compensation for his loss of time.
The new sub-section preserves the auditor's right to recover from the local authority the costs incurred in connection with the recovery of a surcharge which are not recovered from the person surcharged.
Amendment agreed to.
Section 68, as amended, agreed to.
I move amendment No. 78:—
After sub-section (1) to insert two new sub-sections as follows:—
(2) Where a county council has made a declaration under this section the approved local council established by such declaration shall be and shall continue to be an approved local council for the purposes of this Part of this Act for a term of three years.
(3) Where an approved local council has been established under this section and a petition in writing signed by not less than twenty adult ratepayers residing in the district in respect of which such approved local council has been established has been forwarded to the Minister seting forth the grounds on which such ratepayers object to such approved local council the Minister shall within a reasonable time from the receipt of such petition hold an investigation into the circumstances of the establishment of such approved local council and if he finds the objection sustained by the evidence submitted by the objecting ratepayers he shall forthwith by order rescind the declaration made by the county council in respect of such approved local council.
It is unfortunate that we should have reached this amendment at this hour, and that we could not have deferred the question of parish councils altogether to the next occasion on which we will be considering the Bill.
If the Deputy wishes he can withdraw the amendment and put it down for Report Stage.
The purpose of the amendment is this: By Section 69 power is given to establish what is known as a parish council. As far as my reading of the Bill goes, once the inhabitants of a locality have got together and been recognised as such there is no power to do away with them until, presumably, the last member dies. It is in order to overcome that difficulty that this amendment has been put in. Sub-section (2) of it limits the existence of a parish council to a term of three years, and sub-section (3) allows for a petition to be lodged by the local inhabitants who desire to have it removed.
The object in making provision in Part IV of the Bill for parish councils was that it was hoped they would spring up more or less spontaneously. In such circumstances, the county councils might delegate to them such duties or work as they might think they could do better than the county councils themselves. I think it would be a very bad thing if parish councils were to get into a position of dependency on county councils. For that reason I do not agree with the amendment. I would, however, be prepared to meet the Deputy on amendment No. 83 which he has put down.
On the understanding that the Minister is accepting the principle of the amendment, I am prepared to withdraw it. I take it that under amendment No. 83, if a sufficient body of local persons brought pressure to bear on the county council, they could proceed to annul.
Amendment No. 78, by leave, withdrawn.
Sections 69 and 70 agreed to.
(1) The county council may delegate to an approved local council of any of the powers and duties of such county council which, in the opinion of such county council, would be better regulated or managed by or through such approved local council.
(2) Where the county council have made a delegation under this section to an approved local council, the acts done by such approved local council by virtue of such delegation shall be subject to confirmation by such county council, save that such county council may, with the sanction of the Minister, empower such approved local council to do any act (including the institution of legal proceedings) within the authority conferred on them by such county council which such county council itself could lawfully do.
I move amendment No. 79:—
In sub-section (1), page 32, to delete in line 2 the word "of" where that word occurs firstly.
Amendment agreed to.
I move amendment No. 80:—
In page 32 to insert before sub-section (2) a new sub-section as follows:—
(2) A public assistance authority may delegate to an approved local council any of the powers and duties of such public assistance authority which in the opinion of such public assistance authority would be better regulated or managed by or through such approved local council.
This section, as it originally stood, was, I think, bad enough in that it allowed a county council to delegate powers, even the institution of legal proceedings, to a parish council, a self-appointed body which came along and sought recognition from the county council. The Minister, to my mind, is making the original section very much worse by this amendment, because now he is going to allow the county council not only to delegate its powers to the parish council, but he is going to allow the public assistance authority to delegate its powers to the same body. We had a good deal of discussion to-day on the different ways in which elected persons and persons who are not elected have control in financial matters. I think that the remarks made earlier would apply particularly to the point that we are now dealing with. The position here is that the Minister is prepared to allow a parish council, which has not been elected by anybody and has no responsibility to anybody, to exercise the powers of a public assistance authority. It seems to me that the one and only object of a parish council will be to secure for its particular parish the greatest possible volume of public assistance. It has got no other interest. It has not to provide the money. It is simply there to spend money—and to see that the greatest possible amount of it that is available is brought into its particular area, so that the local persons may receive the greatest benefit. That seems to me to be altogether contrary to any proper system of local government: that any body of persons who have no responsibility to anybody should be empowered to spend public money without having to account in any way for their actions. If the Minister had not expressed his willingness to accept, in principle, the provisions for annulment, I think the matter would have been very much worse. Under the Bill, as it stands, with this amendment, an approved local council, once it is set up will be there for ever, and will go on spending public assistance money ad infinitum. I think that is a very bad principle to introduce. It is surely quite contrary to what is normally understood by representative local government. I move to report progress.
Progress reported; the Committee to sit again later to-day if time allows, if not, on Tuesday, 17th June.