Vol. 95 No. 5
I move amendment No. 75:—
To delete paragraph (f) of sub-section (2), lines 29-44, page 16.
This amendment could be debated with amendment No. 108, but there is a material difference at the same time, as this deals with certifying the work of a county council, while the other is worse, as it deals with the commissioners certifying their own work.
The Deputy could deal with both now, or withdraw amendment No. 75.
The degree of efficiency in which the drainage is to be maintained arises on this. If a drainage work is kept in a very poor condition and is taken over by the local authority, what period does the Parliamentary Secretary anticipate will elapse before it is put into proper condition? There is a certain amount of anomaly running through the Bill in that respect, and we will come to it later on. Some of the sections empower the commissioners to compel the local authority to maintain a work in an efficient condition and, if they fail, the commissioners have the right to enter and do the job themselves. There are other sections which set out that there is no responsibility on the local authority to keep a work in a better condition than that in which it was certified to be on inspection by the commissioners. I am doubtful as to how far the commissioners will insist on the local authority maintaining the work. It would appear that power is being taken only to compel them to maintain it in a condition equal to that in which it was when taken over, and if it was in a bad condition, then nothing will be done about it for some years, until the commissioners have it transferred to themselves. Would the Parliamentary Secretary clear up that point?
I am at some loss to know what exactly I have to clear up. We are aiming to hand over to county councils all drainage districts on the appointed day. In some of these cases the boards and trustees originally responsible for maintenance have gone out of existence and the people whose lands are affected have had no person or authority against whom they could take action if they felt that injustice was being done to them as a result of the neglect or alleged neglect of the district. Immediately on the passage of this Bill into law, and immediately on the appointed day being named and the districts being transferred to the county councils for maintenance, those people whose lands are affected will be in a much better position from the point of view of having a mark for a legal action. Some of the districts have been neglected for years and years and flooding would probably take place. We feel it is only right that, while we are making provision for the transfer to the county councils, we should insert safeguards in the Bill to ensure that those county councils cannot be made the cockshot of any person or group of persons and that they cannot be expected to maintain these districts in a better condition than they were in on the date of transfer, and will not be legally obliged to do so. Of course, if the county surveyor thinks that certain work should be done that would be beneficial, there is no hindrance to the county council in doing it, but naturally we could not ask the county councils to be responsible for these districts, some of which have been neglected for many years, without giving them the security which is provided in this section and which Deputy Hughes now seeks to eliminate.
It is for that reason that we provide here for the issue by the drainage authority of a certificate, which will be accepted by a court of law, to establish that the condition in which the drainage district is is not worse than what it was at the date of its transfer. For that reason it is necessary to make an inspection of each district before the fixation of the appointed day. Therefore, between the date of the passage of this Bill into law and the fixation of the appointed day, our office must make an inspection of every district, so that we will have a record of the exact condition of that district. Then, if any difficulty should arise between the riparian owners there and the local authority responsible for maintenance, we will be able to go into court and say: "Here is a certificate showing the condition in which this district was on the date of transfer to the county council, and here is a certificate which says that district is at least as good as it was on the date of transfer. The county council, while free to maintain it in a better state if it likes, is not legally obliged to maintain it up to any better standard than that at which it was maintained prior to its transfer." When Deputy Hughes thinks over that, he will probably agree — as any Deputy must agree — to the necessity for such a safeguard.
I am not questioning that at all.
If we had not this safeguard, people who had no mark previously to take a shot at for damages, could take these actions, and perhaps succeed, and so create a very awkward position, financially and otherwise, for the local authority concerned.
Is it by the county council that the certificate submitted by the engineer of the Board of Works will be accepted?
By the court.
Would it not be well to see that the local county surveyor was consulted as to whether schemes that are handed over to the local authority are in a suitable condition?
I am afraid the Deputy is confusing the point we are discussing. I want Deputies to think in terms of the fixation of the appointed day that will apply to all existing drainage districts that are not already in the hands of county councils for maintenance.
Deputy Heskin is talking about future drainage.
The phraseology of the section seems to me to be somewhat involved. I would like to know if the inspection on which a certificate is issued will take place after proceedings have been initiated by the riparian owners, or somebody else, against a county council.
As we proceed with the Committee Stage of the Bill, we will come to an amendment which seeks to compel us to fix the appointed day within 12 months.
That was my amendment which has been dealt with.
I resisted that amendment for the reason that we must have inspected all these districts before the appointed day is fixed. It is on the basis of the condition revealed by the inspection that must take place prior to the fixation of the appointed day that the certificate will be issued on which the court will act.
This paragraph in the section does not say so. I think that if the Parliamentary Secretary will read it over again he will find that an inspection takes place prior to the fixation of the appointed day, and that, in the case of proceedings against a county council, presumably another inspection will take place. It is, presumably, on that inspection that the sealed certificate will be issued, and will be presented to the court for the purpose of absolving the county council from any financial liability in respect of any claim made by the riparian owners or anybody else against the county council. Is that certificate to be issued following an inspection which is in addition to the inspection that takes place prior to the fixing of the appointed day?
Yes.
Is it not a fact that there will be a special certificate issued for the purposes of litigation?
The point is that we will be called upon to give a certificate to the court as to whether the district, since it was transferred to the local authority, has been maintained in as good a condition as it was in prior to its being handed over. For the purpose of seeing whether the condition in which it is or was prior to being handed over we must have an inspection carried out prior to the fixation of the appointed day. Supposing that in a year or two, or even in five years' time after the fixation of the appointed day, a case arises as between the riparian owners and the local authority, we will have to go down to the district again to inspect it, to see whether or not it was being maintained in as good a condition as it was in prior to being handed over. Obviously, a certificate to that effect could not be issued without a second inspection.
And that takes place subsequent to the initiation of proceedings?
Yes.
We are protecting the local authority from individuals in so far as that they cannot compel it to maintain the drainage in a better condition than that in which it was at the time it was transferred on the appointed day. The point that I am anxious about is this: can the Commissioners compel a local authority to keep a drainage in a better condition of maintenance than it was in prior to being handed over? I think that under Section 29 they can.
No.
If that is not so, I would be glad if the Parliamentary Secretary would explain the meaning of paragraph (e), which says:—
"no council or councils jointly shall be obliged by this sub-section to maintain any existing drainage works in a condition or state of repair better than the condition and state of repair in which such works were at the time of the last inspection by the commissioners under this sub-section prior (but not more than 12 months prior) to the appointed day."
I would ask the Parliamentary Secretary to relate that paragraph to Section 29 which provides:—
"(1) Whenever, after the appointed day, the commissioners are of opinion that any existing drainage works which are for the time being maintainable by the council of a county or the councils of two or more counties are not being properly maintained and that maintenance or repair work is immediately necessary in respect of the said existing drainage works, it shall be lawful for the commissioners to serve by post on such council or each of such councils a notice (in this section referred to as a notice of disrepair) stating that in the opinion of the commissioners the maintenance or repair work specified in that behalf in such notice is immediately necessary in respect of the said existing drainage works and requiring such council or councils to execute the said maintenance or repair work within a time specified in that behalf in such notice."
I think that under that section the commissioners can compel a local authority to improve the state of maintenance that existed at the time of the appointed day. There is an anomaly there as between paragraph (e) of the section that we are discussing and Section 29.
The Deputy must remember that there are districts already in the hands of county councils for maintenance purposes, and that in the past, in many cases, these have not been maintained as they should have been. I think the Deputy will admit with me that they are in an altogether different category from the older districts that were in the hands of trustees or boards. I think it is only right, in the case of a district created under the 1925 Act on which large sums of money were spent and for which, let us say, the county council was responsible for maintenance over a period of years, that we should have the power to ensure that from now on the local authority will discharge its responsibility by seeing that the district is maintained in the manner in which it should have been maintained from the time of its constitution.
Is the Parliamentary Secretary taking power to compel a local authority to improve the condition of an existing maintenance?
To improve maintenance?
I think you are under Section 29. Will the Parliamentary Secretary explain to me the meaning of that section?
We have not reached that section yet.
There is an anomaly there that, I think, needs to be explained.
Yes, there is a seeming anomaly.
We can argue it now or later on, whichever you like, but I think it ought to be cleared up some time. I direct the attention of the Parliamentary Secretary to this: sub-section (1), Section 29, says:
"... that in the opinion of the commissioners the maintenance or repair work specified in that behalf in such notice is immediately necessary in respect of the said existing drainage works and requiring such council or councils to execute the said maintenance or repair works within a time specified in that behalf in such notice."
Paragraph (b) of subsection (2) states:—
"... it shall be lawful for the commissioners to enter on the said existing drainage works and there execute or complete (as the case may be) the said maintenance or repair works."
That means that if the repair work or maintenance is not efficiently done you can either compel the local authority or go in and do it yourself and you are not limiting the responsibility of the local authority to the degree of maintenance that obtained on the appointed day. There is a definite anomaly.
The final awards in all these cases provide for maintenance. The final award in all the cases under the 1925 Act, for example, provided that in each case money would be expended on the district for maintenance by the county council or councils to which it was transferred.
We are not doing that here.
If that council or these councils fail to maintain that district then we certainly should have power to compel that local authority to do so.
Why have you not said that?
To the extent that we are transferring districts that were formally the responsibility of boards and trustees, all we are asking these county councils to do in relation to these districts is to maintain them up to a standard at least as good as the standard to which they were maintained by these authorities.
This will also cover embankments that are in the hands of trustees — is not that so?
No, it will not.
There is nothing about embankments in the section.
They are drainage works. Do not they come within the scope of the Bill?
This particular section does not refer to embankments.
I am referring to a trustee body that was set up.
We will get to that later, I think.
There are at least a few boards already in existence, to which I think Deputy Heskin is referring, who maintain certain drainage works that would not be styled embankments. In certain districts funds are provided for drainage purposes by boards, who may or may not be doing their work. I want to safeguard the position of the riparian owners who would not be provided for in that respect by trustee funds or other funds provided for maintaining drainage, and which was not carried out in the last four or five years. The funds may have been lying there and not put to the purpose for which they were intended, or the work might otherwise be neglected. It is obvious that if no work was carried out for five or six years preceding the appointed day these particular drainage schemes would be in a bad state of repair on the appointed day and all that would be required of the county council would be to maintain the drainage in the condition in which it was on the appointed day. The riparian owners might be in a difficulty in that respect. Is there any safeguard for the riparian owners in this particular section?
As far, as Section 23, paragraph (f) of sub-section (2)——
(e) and (f).
——(e) and (f)—are concerned, what you have to make up your mind about is, do you think that the authority to whom these districts are being transferred should be protected in this way or do you not?
I quite agree.
If you think they should be protected in this particular manner, then there is no way out of the acceptance of this section as it is. If you have a different point of view, and if you think the responsibility should be transferred to the local authorities, with complete freedom for every person who may feel he has a grievance to take a legal action against that local authority, then, naturally, you will ask for the deletion of these two paragraphs, (e) and (f). I think most Deputies will understand the necessity for their inclusion.
Yes. I recognise the necessity for these two particular paragraphs and I am not opposing them but I am wondering is there any way of providing for a contingency such as I have mentioned where a board of trustees or some such body has been set up. I do not think there are many of them in existence; there are not many in my county; but I assume there are some. I think there were some such bodies under the old landlord system, where funds were set up for the drainage of rivers. Drainage work may not have been done for the five or six years preceding the appointed day. I do not know that we could devise means to compel them, after the appointed day has been decided, to carry out the work. I think the question will arise in connection with the allocation of their funds. I do not want to press the point.
I move amendment No. 76:
In sub-section (2), page 16, line 45, to insert the words ", agent or servant", before the words "of the commissioners".
This is a consequential amendment.
I move amendment No. 77:—
At the end of sub-section (2), page 16, to add a new paragraph as follows:—
(h) Until such time as the Commissioners have put into repair drainage works and embankments transferred to county councils under this section, and have issued certificates of such repair, no county council shall be held responsible at law for damages arising from the present condition of such drainage works or embankments.
My view is that these two sections are not going far enough. I do not believe that you can devise any code of words or regulations which would prevent immense litigation as to the degree of liability in the State, once you have the appointed day coming in. The Parliamentary Secretary stated very glibly that a certificate will be issued as to the present state of the district when it is handed over, but is the Parliamentary Secretary not aware that embankments do not remain in a particular state? Erosion, water surface, and all these things, affect them. You are dealing with the taking over of drainage areas that were formerly the liability of other people. You are transferring them as a liability on the ratepayers of the county councils, in my view, without adequate protection, no matter how you frame it, against litigation by people who are affected or think they are affected. The only bold way of dealing with it is on the lines suggested in the amendment. Any other phrasing, or any effort to protect local authorities on the lines proposed in the Bill, will mean that any eminent lawyer will be able to drive a coach and four through the Act. I think the proposal in the Bill invites them to do it, with the great mark of the county rate as an inducement both to the applicant and to those encouraging him to proceed.
I have in mind two great works in the county, portion of which I represent. One is the drainage of the Awbeg which cost the State and the local authority something like £35,000, made up of a gift of £16,000 by the county council and the contribution of £15,000 by the State. The owners got a loan which they were repaying over 35 years to the county council. They had responsibility for the embankments — a responsibility which was more honoured in the breach by some, but that is neither here nor there — but they are now being entirely relieved of the obligation to repay that loan. Liability for the upkeep of that drainage work is being transferred to the local authority, the Cork County Council, which has already subscribed £11,000 and given a loan of £5,000. The most serious effect of the Bill, in my opinion, is that it leaves open the way to litigation and claims for damages by people living in the area. There is also a much bigger scheme which was one of the old relief works — the embankment, which is now in a very precarious state, protecting the sloblands in the town of Youghal. It is a liability of the landholders. If, by any chance, that embankment goes, the claims of property owners in the town of Youghal in respect of consequential damage will be enormous.
As I say, the only bold way to tackle it is in the way suggested in the amendment — that no local authority shall be held responsible until such time as the embankments are in repair and a certificate to that effect has been issued. If those embankments are subsequently allowed to go into disrepair and any damage occurs, the local authority will know that they will be liable. To try to get anyone to understand the degree of disrepair on the basis of their present condition is extremely difficult and I am fortified in the point I am making in favour of my amendment by the Parliamentary Secretary's anxiety to protect local authorities from frivolous and vexatious claims. Unless areas of this country are to become hotbeds of litigation as between property owners and local authorities, he should seriously consider the amendment.
The same problem arises in my area. In County Waterford, we have about 60 miles of embankments which, in many cases, under the Land Acts, were the responsibility of the Land Commission. According to the Bill, these will, on the appointed day, become the responsibility of the county council. Section 37 says that the local authority shall not put embankments or drainage works in a better condition than that in which they were on the appointed day. These embankments as they are at the moment, in a deplorable state, will be handed over to the county council as its future liability, and I believe that, taking into consideration the huge mileage of embankments involved and the very bad condition of these embankments at present, the county council's liability will be unbearable.
In one area, the Blackwater area, we have very nearly 18½ miles of embankments. Around Cappoquin there is one portion of the embankment extending for over a mile which would need to be built anew. If that responsibility is to fall on the county council, where will the ratepayers be? My argument is that it should be a national responsibility and not a liability of the county council, which can never bear such a burden. There is an embankment of 6½ miles on the Bride; two miles on the Colligan; four miles on the Brickey; two miles on the Mahon, and 36 miles on the Suir. I fail to see how the local authority can be expected to assume that burden, in view of the present condition of the embankments and in view of the fact that the Land Commission "funked" their responsibility in the matter of maintaining them.
I have here a communication from a lady in the Nore area, where the Land Commission in 1933 built an embankment on the river. I hold that it was the responsibility of the Land Commission, and if the Land Commission was responsible, I hold that, when it is transferred at the appointed date, the county council becomes responsible. This lady has ten acres of land which are useless to her, and in view of the provision in the Bill providing for compensation where loss or damage is occasioned, due to inadequate protection, where will the county council be? If it is the responsibility of the Land Commission, and, under the Bill, she can apply for compensation, where does the county council come in? If the county council has to compensate people as it works along 60 or 70 miles of embankments, there will be no County Waterford at all because the people will not be able to pay their rates.
The Parliamentary Secretary should do something in relation to this area to ensure that the local authority will be safeguarded at least to the extent that the embankments will be put into a proper state of repair before the appointed date. I suggest that, in order to protect the county council, a certificate from the county surveyor that he was satisfied that they were in a proper state of repair before being taken over should be received by the local authority. In the 60 miles there are, as I say, other areas not included in this and there are embankments which are the responsibility of the Land Commission. There are many areas which I and other Deputies from the constituency may have no knowledge of. Still we have to acceptresponsibility, according to this Bill. In order to safeguard the county councils, I ask the Parliamentary Secretary to provide that at least a certificate from the county surveyor should be forthcoming to satisfy the members of the local authority, before the embankments are taken over on the appointed day, that they are in a satisfactory state, in order to relieve the ratepayers of undue responsibility.
I have a feeling that Deputy Heskin has got things a bit trí na céile. We are not providing here for the taking over of all embankments on the appointed day. You have drainage districts under the 1842 and 1863 Drainage Acts and in some of these drainage districts you have embankments. Naturally these embankments are part of the drainage districts. When these districts are transferred, as they will be, on the appointed day, naturally these embankments will go with them. But there are embankments outside of that particular type to which I have referred for the maintenance of which trust funds have been established. There are embankments for the maintenance of which nobody has any responsibility. There are embankments situated on lands vested in tenants, whose lands are being protected by them, for the maintenance of which no fund is in existence and for which no one is legally responsible except the people on whose lands the embankments are situated. There are embankments on lands in the hands of the Land Commission which have not yet been vested in the tenants and for the maintenance of which no fund is in existence.
We are not dealing in this section with taking over embankments other than embankments that are included in drainage districts. It is true that we are making provision in Part IV to take over any of the other embankments as we come to them, if we think it wise to take them over. If we go into a district in County Waterford, County Cork, County Kerry, or any other county——
On a point of order. The wording in fact does appear in these amendments. There are five covering this.
There are Sections 31 to 36.
Would you make a ruling as to how we are to proceed?
I think we had better discuss the section and dispose of the amendment.
The Parliamentary Secretary admits now that they are not taking over embankments under this Bill until such time as they think proper. They are not being automatically taken over.
The Youghal case, which the Deputy has in mind, is an exceptional case, I admit. The Youghal case is the one exception so far as I know to the general rule that I have tried to explain.
Are you taking it over under this Bill?
The Youghal district is a drainage district.
That compels me to insist on the amendment even if I have to divide the House.
I can only say in reply to Deputy Broderick that we could not accept an amendment of this kind, because it asks us to transfer districts only when we do reconstructional work. Of course that would mean that we could only deal with this problem piecemeal. That would mean that we could not have one appointed day in respect of the districts. It would mean that the riparian owners and the people who are called upon to pay rates under the 1925 Act, and so on, would not have their burden spread over the county-at-large, except in so far as we had actually reconstructed a district. The result of that would be that, if we start to take over a district in County Waterford, the riparian owners there would get the benefit of having their burden transferred to the county-at-large. The riparian owners in some other county would have to wait until the drainage authority was able to get to them for the purpose of putting a scheme into operation before they could get the relief provided for here. You would have a campaign such as took place in connection with the 1923 Land Act. A certain reduction was withheld from the tenants under that Act until the land was vested in them. As the result of pressure over a number of years on the part of the people affected, they compelled the Legislature to give them relief even prior to the vesting of the land in the tenants. The same thing would happen in connection with this. If we proceeded to give the people of one district the relief provided for here and the riparian owners of another district had to wait 10, 15, or 20 years for that relief, that condition of things would not be tolerated. In order to fix the appointed day, in order to ensure that these districts would not be allowed to deteriorate still further, we must have power to transfer these districts to some body, such as the county council, which will see to it that they do not get into a worse condition than they are in, until such time as they are reached under the reconstruction scheme contemplated.
The Parliamentary Secretary is aware that in one similar case the courts held the local authority liable. I think the State had to come to the assistance of the local authority. The Parliamentary Secretary knows what happened in Tipperary. Here you are handing over one of the biggest embankments in Ireland, which cost something like £50,000 when wages and the cost of materials were very low. You are handing that over in a precarious state to the local authority of the County Cork with a consequential liability with regard to the lands and the residential holdings behind it and holding the local authority liable. This amendment merely asks in that particular case, or so far as it applies, that no liability for damage or consequential damage would be on the local authority until such time as the embankment was put into repair. Now you tell me that this is one of the outstanding cases where it cannot be done. Do you think it is fair to transfer this embankment in its present precarious position? It is in a very bad condition at the present moment, and do you consider it fair to hand over the liability for damage for anything that might happen, to the local authority in County Cork? I think it is most unfair. I do not like dividing the House on this matter because the result, with the Government's vote, is obvious; but I, for one, strongly dissent from the proposal to have this included without a guarantee from the Department that there will be no liability on the local authority until such time as the embankment is put into repair.
I think Deputy Broderick has a very sound case. Even the section attempts to safeguard the interests of the local authority, to ensure that the local authority will not be mulcted for substantial damages. There is, however, this difficulty about Deputy Broderick's amendment, that first you would have to ask the commissioners to do the necessary repairs, and then it would be rather peculiar to hand it back to the local authority for a short time, and eventually hand it over to the commissioners again. You will be introducing a third stage into the procedure that you have adopted.
The present procedure is that the local authority takes it over and maintains it, if it is the drainage authority for the time being, and finally it is transferred to the commissioners. If you were to implement the amendment, the commissioners would first have to do the necessary repairs, then it would be handed to the local authority, and finally you would transfer it again to the commissioners. I do not think what Deputy Broderick is anxious to safeguard — the interests of the local authority — is properly covered by his amendment, but surely the Parliamentary Secretary will look into the matter and see that between this and Report Deputy Broderick's anxiety in this particular case so far as County Cork is concerned will be relieved.
Having discussed this matter with the Deputy concerned, I do not know that that would be altogether possible. The position is undoubtedly somewhat peculiar. I suppose it could be safely said that where you have sea embankments of the type that are here, you never know what might happen. The Deputy is afraid that if this drainage district is transferred to the county council for maintenance up to the standard, or not exceeding the standard in which it has been maintained, or is being maintained, some unforeseen or unprovided for thing may happen, that some breach may be effected in the embankment, and that that would expose the local authority concerned to the possibility of having to pay compensation. I do not see any way out of that. I do not see how you could in any way try to provide for such an occurrence. I think we will have to do with this district what we are aiming to do with every other district— transfer it, as we are transferring all the others, for maintenance by the local authority, and the people responsible for its maintenance and ourselves will have to take whatever risks or dangers that act will expose us to. I do not see any other way out of it.
I think the Parliamentary Secretary does not quite understand the position. I am not objecting to the maintenance. What I am objecting to, and what every person interested and who has knowledge of the circumstances objects to, is the liability to damage or consequential damage up to the time the local authority hands it over. Trouble is liable to come here at any moment, and any damage or consequential damage might be held by the courts to be a liability on the Cork County Council. The Parliamentary Secretary knows there were two decisions in major cases of that kind, and they were given against the local authority and even against the Government.
Your first statement to Deputy Hughes was that if he wanted the local authority to be protected he should not object to those two sections. What protection are those two sections giving to the ratepayers of Cork County? This is a question of such magnitude, it is such an enormous thing, that it ought not to be passed over without due consideration. I submit there should be no liability on the local authority until the embankment is put in some kind of repair. I have suggested that a certificate conveying the degree of bad repair, if you like, of this embankment, should be issued to the local authority. Is it conceivable that the embankment, will remain just in its present condition? Is it not more likely that its condition will be worse? I suggest there will be a glorious opportunity for adroit legal minds to interest themselves as to the condition the embankment was in when it was handed over, when they are determining the liability.
You are running a grave risk in this matter. It applies to other drainage schemes as well, even the Awbeg. Some safeguard will have to be thought out in order to protect the ratepayers of Cork County. I can see no safeguard beyond the one suggested in this amendment, that liability for damage and consequential damage should not be placed on the ratepayers or the local authority until such time as the embankments are put in repair. This is private property and I suggest we have no responsibility.
I do not want to go into the history of this property; it is well known to people in this House. It is now the liability of the tenants living alongside it. Why should a native Government throw the responsibility on the ratepayers of Cork County of maintaining a huge embankment that cost between £70,000 and £75,000? It is now in a bad state of repair, undermined, and the water is flowing over it. The banks are gone and you are endeavouring to put a big liability on the local rates. It would not be so bad if it merely threatened the land inside the embankment, but it threatens a good portion of the residential area of the town.
I would like Deputies to consider what it would mean if County Cork people were held liable in law for any damage that might be caused. I think this case is entitled to special treatment, and the only way you can safeguard the people there from litigation is to indicate that that particular portion of the drainage area should be put into proper repair before it is handed over — that we will not be liable until it is properly repaired.
Has the Parliamentary Secretary been advised on that aspect? It arises on paragraph (f) — the sealed certificate of the commissioners. Is that likely to safeguard the interests of the local authorities so far as consequential damage is concerned?
It is.
There is another aspect altogether, which I think Deputy Broderick is inclined to overlook and which this House should not overlook —the position of the individual, in the event of floods breaking through a bank and very serious damage being done. Whether it be in Youghal town, on a farm or in a rural district, surely we should be deeply concerned about the interests of those individuals living behind the bank which has been swept away? Their means of existence has been destroyed and may be inundated by the flood for two or three years. Is it not vital that we should provide compensation in the case of individuals so affected? Whether this is to be the responsibility of the local authority or the central authority, this House should decide, but we should not overlook that point. Listening to Deputy Broderick, it strikes me that, in our anxiety to safeguard the local authority, we may forget the more vital interest of the individuals swamped out completely by floods breaking over the bank. It is only right and proper that there should be some safeguard in the Bill for the interests of the families concerned, in the event of an artificial break through a river or a flood in any shape or form, so that the people living behind the artificial bank will be covered by some financial provision if the bank collapses through deterioration of the embankment works.
I hope Deputy Hughes will not think that I overlooked their interests.
No, I am merely saying we should not do so.
It must be remembered that these people have no protection whatsoever at present. The drainage district was in the hands of trustees and no work is being done, no repairs have been carried out and no funds exist for that purpose. Everybody has respect for the rights of the individual, to the extent that he has rights, but surely Deputy Hughes would not think it reasonable for Parliament to go out of its way to create very formidable rights where the individual had no rights at all prior to the introduction of this Bill?
Why should we not?
My reply to Deputy Broderick is that we have in this State 80 or 90 districts supposed to be under trustees and boards originally created when the districts were first set up, and we want to transfer those districts on an appointed day to local authorities. We want to ensure that there will be some authority responsible for seeing after them and trying to keep them at least from deteriorating still further.
I am with the Parliamentary Secretary there.
We know that we cannot get to those districts in a short space of time to reconstruct them in the manner in which Deputy Broderick suggested this particular district in Youghal should be reconstructed. The only body which could properly undertake the maintenance is the county council and we are providing here for the transfer of the districts to that authority on the appointed day, subject to our being in a position to give a certificate of protection — in the event of legal proceeding arising later — to the local authority, to ensure that they will not be called upon by the riparian owners to keep these works in a condition better than that at which they were kept previously. That is all we are seeking to do here, and I do not know how we could deal with that problem other than in the way set out here.
Will the Parliamentary Secretary say what the liability or responsibility of the local authority is for embankments of that sort under existing legislation?
We have no responsibility for embankments that are part of a drainage district.
Supposing they are part of an existing drainage district?
Then they will be expected to maintain them up to a standard at least as high.
That is not the point. I want to know what the responsibility is at the moment.
The responsibility is nil.
Of a private work?
Supposing an embankment breaks down under present legislation — the 1925 Act and previous Acts —and flooded waters are let loose as a result, is there any liability incurred so far as the local authority is concerned?
I could not say. I would like Deputies to be clear on this point: There are very many embankments which are not included in any drainage district.
We are speaking of the ones which are.
Any embankment which is part of a drainage district will be handed over to the county council, which will be called upon to maintain it in a condition at least as good and up to a standard at least as high as the standard at which it was maintained prior to being handed over. I cannot make that any clearer.
In the case of Youghal, if there is no fund at the present moment to maintain such embankments, with whom will the responsibility rest?
With those who have it up to now.
The tenants?
The whole area would be flooded.
Of course it would.
And it would be left so. Monetary provision should be made in the case of such embankments, which had no protection in the wide world before, to safeguard the interests of the local authority before handing them over.
We are not taking them over.
The Parliamentary Secretary says he is only asking county councils to be responsible for the prevention of deterioration until such time as they are taken over by the commissioners. Surely there is a bigger responsibility than that? He says that, at the moment, there is no one responsible, owing to the collapse of the drainage boards. We are aware where the Land Commission avoided responsibility and sheltered recently by saying that some of the old drainage boards were responsible for the flooding of the Land Commission tenants; so between the failure of the boards of trustees and the Land Commission, nothing is being done at all, and no one is responsible. The Parliamentary Secretary intends to make local authorities responsible now for any damage that may arise pending the district being taken over by the commissioners, and they will have to accept liability for any claim lodged against them. We are thus making an authority responsible which had no responsibility up to this. Why should we hand the baby on to the local authorities without letting the local authorities know to what extent they are likely to be involved?
There is no doubt at all that under sub-section (2) the local authority assumes a contigent liability for anything that may happen after taking over such an embankment or drainage area. They must assume a contigent liability and, as Deputies Broderick and Keyes have pointed out, if an embankment bursts, the certificate of the commissioners will not save the local authority then, because it could be argued, if the case got to court, that they did not maintain the work as well as they found it, and, as a result, the bank broke. Therefore, anything that may happen in the way of damage from embankments bursting or otherwise after being taken over by the county council will certainly be the responsibility of the council. No one could prove otherwise, so the safeguard here in (f) will not safeguard them in any way. If nothing happens, they will be safeguarded all right. But if anything should happen, this will not safeguard them. As a matter of information, I would like to know from the Parliamentary Secretary if the drainage area known as the Slob in Wexford will become a liability of the local authority under this section?
No. It is not a drainage district.
I want to know if it is a drainage district.
The Deputy can call it what he likes, but it is not covered by these proposals.
That is all right. I would be glad if the Parliamentary Secretary would again go into this question of the future liability of county councils before the commissioners have repaired those embankments. Very considerable damage may be done and very considerable liability may be placed on the shoulders of local authorities that they have not to bear at the moment. I suggest that could easily happen under the section.
In view of what has been said from all sides of the House I would be glad if the Parliamentary Secretary would do his best to devise a safeguard to protect local authorities from liabilities falling on them that, in justice, they should not be asked to bear. I agree that there is a necessity for repairing these embankments and for a national effort in regard to the drainage of the country. While I agree with the Parliamentary Secretary on that, I again appeal to him to devise phraseology that will safeguard the local authorities until such time as the embankments are put into a reasonable condition. If, following that, the local authorities neglect their duty, that will be their responsibility. I suggest that it would be most unfair and unjust to put on them an undefined liability at the moment, and I ask the Parliamentary Secretary to take steps to avoid the danger of that arising.
I am sure the Deputy is conscious of the fact that we are very much concerned to try to build up the necessary safeguards for local authorities to whom we propose to transfer these drainage districts. We have given this matter a good deal of thought, and we have done the best that could be done in the circumstances. In view of his request, I can tell him that we will give the matter further consideration between now and Report Stage. At the same time, I must say that I see little hope of making any better provision for safeguarding county councils than the provision which we are making here. However, we are always open to see if anything better can be done consistent with our duty of carrying out the scheme in this Bill.
The one point I am anxious about is that no unnecessary or unjust liability should be placed on local authorities.
Nobody wants to do that.
On the section, can the Parliamentary Secretary give us any idea of the period of time that is likely to elapse before a maintenance transfer Order is made? We have been told that the appointed day will be the appointed day for the whole country. I am anxious to know if the maintenance transfer Orders will be operated in the same way or if they will be issued individually.
Under this section we visualise the setting up of a maintenance organisation when we carry out a drainage scheme. Take, for example, the case of the Brosna. After the execution of the work there, we will have to maintain the Brosna with our own maintenance organisation as provided in the section. It will come into effect immediately on the completion of the works there. We may say: "In order to create more work for the maintenance organisation, here are two or three, or four or five drainage districts that were transferred on the appointed day to the county councils concerned; we will take back these districts from the county councils and group them with the district that we have created; we will make the maintenance organisation, which we have set up to maintain the Brosna, look after the maintenance of these districts also." That is the meaning of the section.
So that in some cases a local authority may have to maintain for years before you transfer.
That is so.
I move amendment No. 78:—
In Section 25, page 17, to insert the following new sub-sections:—
(3) Every person who immediately before the appointed day was for a period of not less than three years the holder of an office as secretary or clerk to a drainage board or to a body of trustees to which this section applies shall be entitled to be paid compensation under this section.
(4) Compensation under this section shall become payable to the holder of an office to which this section applies on the appointed day.
(5) The compensation payable under this section shall be calculated on the basis of one-sixth of the annual remuneration of the person to whom such compensation is payable, multiplied by the number of completed years of service such person has had with the drainage board or body of trustees under which he held office immediately before the appointed day.
(6) Any sum payable under this section shall be included in the liabilities of a dissolved body mentioned in the Second Schedule to this Act.
The expression "dissolved body" has in this section the same meaning as in the Second Schedule to this Act.
I think I am correct in stating that it has been the policy of the present and the previous Government to provide compensation for persons who may lose their employment as a result of legislation passed by this House. In view of the fact that a small number of individuals will lose their part-time employment as a result of the passing of this Bill, I would ask the Parliamentary Secretary to give favourable consideration to the terms of this amendment. If he agrees to accept it, the amount of compensation payable under it will be very small, and will not involve any charge on State funds. The Parliamentary Secretary may recognise that the compensation proposed to be paid to those part-time employees is related to the terms of the compensation which was paid to the agents of the different national health insurance societies whose positions were abolished when the National Health Insurance Act became law. The proposed terms set out in the amendment have been taken, more or less, from the National Health Insurance Act. I hope the Parliamentary Secretary will give the amendment favourable consideration, in view of the fact that it involves only a very small number of individuals. His acceptance of it will maintain the principle that has been adhered to by the present and the previous Government in regard to matters of this kind.
We are inclined to support the amendment. As a matter of fact, I have an amendment down which covers the same point—that financial provision should be made to give compensation.
Is the Deputy anxious to confer rights on people who, at the moment, have no rights at all?
No rights?
Yes.
When they were appointed to a particular post it seemed that that post was likely to continue. Take the case of a man appointed as secretary to a drainage board.
Yearly.
He has been in that position for years and, before this piece of legislation was introduced, it appeared to him that the job was likely to continue for the remainder of his life.
Supposing he was appointed as secretary to a drainage board ten or 20 years ago and did nothing ever since, would you like to provide compensation for him?
I do not think that is so.
I have pointed out to the Parliamentary Secretary that a couple of people I know, holding positions of this kind, were not in a position to get money for doing nothing. I think the position is comparable in many respects to the position of agents of an old national health insurance society, who were given compensation, after considerable discussion in this House. They have no legal rights at present. They have no right unless you are prepared to admit it. Their security in regard to their positions was about as much as that of agents of a national health insurance society, who were provided for in the same way as is suggested in the amendment when the National Health Insurance Bill was passing through the House.
Any rights that any of them have against their employer will be transferred to the county councils.
There may not have been provision for superannuation or anything like that. The Parliamentary Secretary asked about the man who was doing nothing for ten years. What about the man who was doing something for ten years?
The assets of these boards are going to the county councils and whatever liabilities they have are also being transferred.
We are thinking of those for whom no provision is being made for gratuity or pension.
Is it not an acknowledged principle of legislation that where a citizen loses his employment or income, the House that is responsible for such an event puts the obligation upon somebody to compensate him in some way for the loss of income or employment?
I am not inclined to accept any amendment dealing with this particular matter. Deputy Davin has cited the case of the amalgamated societies. I do not think there is any real comparison. You have a number of these boards and a number of these trustees and a number of these officials of such boards and trustees. Some of them may have done something and most of them have done nothing.
I have been asked to move this amendment by a man whom I know very well, who has been working with a drainage board, and I would not move an amendment in this House to put an obligation upon anybody to give compensation to an individual who, as the Parliamentary Secretary seems to think, has done nothing.
I am in the same position. I put this to the Parliamentary Secretary: would he consider empowering the local authority to do it, saying that they may do it?
That is all that is proposed.
I want to make it clear that to the extent that the individual concerned has any rights with his present employer, these rights will be carried on to the county council and whatever was recoverable from his previous employer by way of compensation for loss of office will be recoverable from the county council.
Take the case of men who have been doing their work religiously and efficiently. Surely there is nothing wrong in the principle of putting something into this measure to pass on the obligation to the authority to pay compensation to a person whose services will be terminated when this Bill comes into operation? I would ask the Parliamentary Secretary to look into the matter. I do not know the number of people who would be involved.
I got some correspondence from people who were interested in this particular matter and I must say that I have not come across a case where it could be established that any hardship was being imposed or any injustice was being done.
If a man loses part-time employment and a part of his income as a result of legislation passed by the Deputies of this House——
What do you mean by a part of his income?
He may have an annual income as secretary of a drainage board.
What sort of man have you in mind?
Secretary of a drainage board.
What kind of employment would he have other than the secretaryship?
The material thing is the salary. There may be no contractual rights against the drainage board. This House steps in and takes the salary or wage away which it was never intended should be taken away. To that extent this House is imposing that hardship and this House should discharge that liability, quite apart from the man having any contractual rights to a pension. The pension does not arise; he could do this job until he was 70 years of age, so long as the board existed. To that extent you are imposing hardship and the matter should not be dealt with in an arbitrary way. We are taking that man's salary or whatever it was. So long as he was of good behaviour and did his work, he was entitled to an annual salary. Some provision should be made to compensate such people. It would be very wrong, very highhanded, unjust and immoral if this House were to impose such hardship.
I take it that the Parliamentary Secretary is not opposing the principle of the amendment because, if he is, he is doing something that is different from anything done by his colleagues in the Government in connection with every measure of this kind passed since the Government came into office. I assume that a secretary of a drainage board does not get the title merely for the purpose of giving him a title and letting him draw a salary for doing nothing. I assume he has certain responsibilities; I cannot speak with authority. I am not a member of any drainage board and I confess I do not know very much about the work of a drainage board. Would the Parliamentary Secretary say, for instance, that the secretary of the Nore Drainage Board got this title from some person in authority merely to give him a part-time salary for doing nothing? Surely that is not being asserted by the Parliamentary Secretary.
I have a certain amount of sympathy with the Parliamentary Secretary. There are drainage boards that have more or less lapsed. I think that is what the Parliamentary Secretary means. On the other hand, there are drainage boards that have tried to do their work and the officials or secretaries have done the usual work of summoning meetings, advertising for tenders, and all that sort of thing. What I suggest is that if we do not make some such provision in this Bill it means that if a case of hardship arises, the local authority cannot do anything about it and the Parliamentary Secretary, while he might be very sympathetic, would have to say that nothing could be done as there was no provision for it in the Bill. Supposing, instead of "shall be entitled," you were to say, "the local authority may provide a gratuity or superannuation"?
Yes.
You could leave it optional, subject to the sanction of the Minister, and then the merits of the case could be investigated and if a man merits a gratuity or pension, as the case may be, he will get it. I would ask the Parliamentary Secretary to consider that.
What about the position of an engineer? Is it seriously contended that a firm of auditors, or a solicitor should be included for compensation?
We are talking about a secretary.
They are not part of the drainage board.
Fán go foill. They would be liable to be appointed or not to be appointed annually. Take the case, for example, of the efficient board to which Deputy Hughes has referred. I take it they would have an annual meeting at which their secretary or clerk and perhaps their engineer would be appointed. The fact that this particular board met and appointed me or Deputy Davin or Deputy Hughes as secretary for the coming year would not necessarily mean that they would not appoint some other person in the year following.
That is never done.
There are annual appointments.
Not to my knowledge.
If an individual enters into a contract in the form which the Deputy seems to suggest, the position would appear to be that a man would be able to establish a case against his employer and therefore able to establish a case against the council.
His services are terminated by legislation.
Will the Parliamentary Secretary give me an assurance that if the body to whom the obligation is transferred decides to pay compensation to a person who has not less than three years' service in the capacity referred to in the amendment, there will be no surcharge? I ask the question because I believe that some of the bodies would be willing to pay in cases in which it can be proved that work was well done. I am, however, of the opinion — I cannot, of course, express a legal opinion — that if they decide to pay compensation, they will probably be surcharged. I would accept Deputy Hughes' suggestion as a way out of the difficulty.
I suggest that Deputy Davin would require to redraft paragraph (5). Where a man has given consecutive years of service, I think it would be very unjust for the House to take away his income. It might be a very serious matter for a man with a wife and children who was looking forward to continuing to receive that amount. I am not defending the man who does not do his work, but I think that in the case of a man who has been appointed and has held his appointment for a number of years, it would be very unjust for the House to take away his income.
He would be able to establish his rights.
Is an enabling section necessary?
No. The liabilities of the board by which such a man was employed will be transferred to the county council and the county council would be obliged to meet them.
I see how the Parliamentary Secretary hopes to get away. I have been discussing a case in which there is no contractual obligation with regard to salary. A man is appointed at an annual fee and there is no word about a pension, but we are stepping in long before he will arrive at the point at which he would cease to be able to work and taking his position from him. It is only a subterfuge to say that the rights and liabilities pass on to the county council. The right here is a right to draw an annual sum as salary, and if a man is carrying out his duties properly, he is entitled to that right. It is a right which I want to emphasise, the right to an annual salary. It is a right which is inherent so long as he can do his work and is of good behaviour.
The Parliamentary Secretary is not very convincing in his argument against the rather small amount involved in this proposal. He says that a big principle is involved, and he suggests that there is no comparison between these people and the accountant appointed by a firm. He objected to the analogy drawn by Deputy Davin and said that there was no analogy between these men and people who worked for small national health insurance societies. I think there would be a much closer analogy between them than between these people and an actuary who works for various firms.
The fact that a man has been appointed from year to year is no lessening of his claim to compensation if he has done his work, and the fact that he had to come before a board and fight for his job every year, means that he must be doing his bit. If he were appointed for a long period, he could lie down on the job, but I would be prepared to agree with the Parliamentary Secretary that many of these men were asleep. The drainage boards themselves were asleep — and that is one of the reasons for much of the trouble on this Bill — but where boards were not asleep and the secretary was doing his work, it would be unjust that the men who were doing their work should be scrapped and passed over and that we should depart from the practice of the House for many years past. If a liability is to be handed over to a county council, the council should at least be authorised to pay compensation in necessary or deserving cases.
That is all is being asked, that the local authorities should be the judges in the matter of compensation, that they should not be liable to surcharge and that they should not have to throw people on the scrap heap, having deprived them of certain earnings. It is the principle more than the amount which is really involved, and we ought not to depart in this Bill from the established practice in relation to persons who lose their employment as a result of legislation passed here. So far as persons who were not doing their jobs are concerned, the amendment provides safeguards against their getting compensation, but we want to put the local authorities in the position in which they can, with safety and without fear of being mulcted, do justice to themselves and to those employees who have given faithful service until disemployed by this measure.
I should like to ask, with regard to the secretaries of drainage boards, referred to by the Parliamentary Secretary, who did nothing, whether they continued to draw their yearly salary or whatever allowance was paid to them for work which they did not do.
I could not say; they may not have had any funds.
If they did not draw any income, they would not be entitled to compensation under the terms of the amendment.
It is fair that a man who did his work well and who was appointed from year to year should get consideration because we have given consideration to people of that type in various Acts which we have passed here.
Deputy Keyes tries to prove that there is no analogy between the case I cited and the position of these people. I was taking Deputy Davin's word for it that these were part-time employees, that the people in whom he was interested — I do not know who or what they are — people whom he knew or met who occupied positions on these boards, held them on a part-time basis. Deputy Keyes maintains that there is no analogy between these people and a firm of auditors.
It is very remote.
A firm of auditors could be employed by this, that or the other firm. I agree, but the people for whom Deputy Davin wants compensation are apparently people who were part-time employees of drainage boards, who held these positions as a sort of side-line. They could have held the secretaryship of half-a-dozen boards, or could have been engaged in any other type of work. If we are to talk here of compensation for secretaries and clerks of drainage boards, what about the engineer who has perhaps been employed by a board or a body of trustees? Has he a right to compensation too? Are we to establish the position that simply because an engineer was lucky enough to pick up this windfall and held it for three or four years, he is to have a right to compensation on the passage of this Bill?
Would he not be paid on a fees basis?
I am not interested in how he is paid.
And the same applies to the accountant.
What right has a man who happens to be at the moment secretary of a drainage board, who is appointed from year to year and who may or may not be reappointed at the end of the year, to the special protection which the Deputy seeks to establish for him here any more than any man in any other form of employment who may lose it and have to look for something else? It is all right to protect the man who has rights, and we have, in fact, provided for any man who can establish a case against his employer, a board or trustees. To the extent that he has a claim against them in the event of his losing his employment, that claim will be transferred to the county council under the Second Schedule. I do not see why it is sought to confer upon a host of people rights which ordinary people never enjoy. I am opposed to that idea and will have to resist it.
All I can say is that I hope the Parliamentary Secretary's colleagues in the Government will read that portion of his speech, which is completely in conflict with everything they have said in regard to other measures of the kind which have had the effect of depriving people of employment or remuneration. What he has said is quite contrary to what the Minister for Industry and Commerce said during the eight-day debate on the Transport Bill, to what the Minister for Local Government said on the National Health Insurance Act and what other Ministers said in every other case of the kind. I would not mind if there was a large amount involved in this proposal. The Parliamentary Secretary has reversed the previous policy of his Government in what he has said.
I have not.
Of course you have. If any man is deprived of his employment as a result of legislation passed here, it has been the practice of the House since I became a member in 1922 to make provision for compensation by the proper authority of a person in that position. I am not asking the Parliamentary Secretary to accept the amendment in its present form, but I am asking him to make sure that no local authority that desires to give compensation to the secretary or clerk of a drainage board will be surcharged.
I should like to tell the Parliamentary Secretary of the case of a man, probably over 60 years of age, who has acted as secretary of a small drainage board for many years. He has done all the inspectorial work. He has invited tenders and got work done on a piece basis. He has inspected the drains over the whole system for many years and has done all clerical work. When this is taken over by the local authority it will be a hardship to that man if he does not get compensation. Whether he can establish his right to compensation or not, according to the arguments of the Parliamentary Secretary, I do not know. We simply want to satisfy ourselves that justice will be done in such a case. I feel it may be necessary to put in a section enabling the local authority, where a claim on the grounds of justice is established by an individual in a case like that, to give compensation. No one wants to see a man getting superannuation or a gratuity or compensation for work that he has never done. I am merely anxious to see that the man who has performed his duty and who will be dispensed with as a result of the operation of this Bill will not suffer an injustice.
I would also ask the Parliamentary Secretary to reconsider this matter. I look upon it as a very important one in principle. One of the greatest grievances in the public service at present is when people are kept on from year to year, having a right in practice but perhaps not in legal form, and then are dispensed with after 10, 12 or 14 years' service. The emoluments which they get for the work are necessary to keep their homes in a proper way. At that stage of their lives they are unfit to turn to anything else. They are settled down in that part of the country. It is a very serious step to deprive such men as these of what they have been getting for years. Something should be done on the lines suggested in order to give them a chance of getting some compensation from any funds which the drainage board may have or otherwise they should be retained in some way or other in employment.
At any rate, something should be done to see that they do not suffer serious hardship. The case of an engineer or any other man who has a profession is not comparable with that of the ordinary working man, so to speak, who is receiving only a very small emolument. Such a man cannot go from place to place like an engineer and take up employment elsewhere. He has settled down in a certain place and wants to continue there with his family. Therefore, I ask the Parliamentary Secretary to see that something is done to enable the authority in charge either to give some compensation or to retain the man in employment in some way or other.
Will the Parliamentary Secretary look into the matter?
I will look into the matter.
There is a big principle involved.
There is no principle involved.
You do not know the meaning of the word then.
That is my view. I am prepared to look into the matter again, but I must say that I think it is wrong for us to create for a set of persons under this measure rights that they do not now enjoy.
They have rights.
These are all part-time posts. It cannot be said, I think, in relation to the secretary of any drainage board or any employee of a board or of trustees, that that is really his only means of living. I am not able to indicate what the terms of a man's employment would require to be before he would have a sustainable case in law for compensation. But, in reply to Deputies who mentioned certain cases, I can only say that, to the extent that an employee of a drainage board or of trustees has a case against his employers for the loss of his employment, then the responsibility is transferred under the Second Schedule to the county council to whom the drainage district is handed over. Beyond that at the moment I am not prepared to go, but I will have the matter further looked into.
All I want the Parliamentary Secretary to do is to authorise a local authority which believes that a man has faithful and continuous service to pay a reasonable compensation to that person without fear of being surcharged.
There is just one point which I wish to emphasise. The Parliamentary Secretary has pointed out that these are only part-time posts. It has been the custom to compensate for loss of part-time employment. It has been the custom to provide gratuities and pensions in respect of part-time employment, such as that of rate collectors, for example. I think the fact that it is part-time employment should not debar the Parliamentary Secretary from considering the matter.
Nor does it, to the extent that it is a contractual obligation.
On the understanding that the Parliamentary Secretary will look into the matter with a sympathetic mind——
Yes, with a sympathetic mind. At the same time I want Deputies to be fully conscious of my attitude towards this whole proposal.
So long as you keep in step with the Government policy, I am satisfied.
Can the Parliamentary Secretary say what he proposes to do with the trust funds which are being created, where there is no responsibility for maintenance, but where provision is made for expending money?
This does not cover any trust funds.
You do not intend to touch them at any time?
They are not affected here.
What do you propose to do with such funds? Do you intend to touch them? Under this section you do not intend to touch such funds as I have referred to?
No.
Do you intend to touch them under any part of the Bill?
We will get to that point.
The purpose of amendment No. 79 seems to be that moneys due to the commissioners on foot of the capital costs of existing drainage works shall be no longer payable. That involves a charge. Hence the amendment is out of order. If the Deputy can show me there is no charge involved, he is at liberty to do so.
The section sets out that in cases where it is necessary for the commissioners to restore a drainage district that has been neglected, the county council will be responsible for the cost incurred in doing such work. It appears to me to be unfair that the county council should be saddled with such a charge, more especially as they had no control in the past over the trustees. It seems unfair that they should now be saddled with the sins of ommission of the trustees. In some cases these drainage districts have been neglected for so long that to restore them now means undertaking a new scheme and, therefore, the cost is likely to be rather heavy. It would be unfair to ask county councils to bear such a heavy cost. Cases such as these should be classified as new drainage schemes and treated in exactly the same way as new schemes undertaken by the commissioners.
Would it not involve a charge on the Exchequer?
Obviously.
It would?
Yes, when the work is completed. My proposal is that the drainage commissioners should be responsible for the cost of whatever maintenance work is necessary.
I do not think the Deputy understands the section clearly.
Will the Parliamentary Secretary explain it to me and tell me where my interpretation is wrong?
Section 26 deals with defraying the cost of existing drainage works.
The expense incurred in the execution of drainage works in existing drainage districts?
Yes. Take the 1924 Act——
Where the work is neglected?
The amounts that were advanced to the county councils and to the beneficiaries—the riparian owners. This merely makes provision for the payment to the commissioners of the amounts they are due in respect of these matters.
It does not deal with anything prior to that—any of the other special Drainage Acts?
No. It applies to all outstanding moneys.
The Deputy may not move the amendment. He has not made a convincing case for it.
On the section. I suggest that this section is really a tax on progress and that as regards the local authorities that were enterprising enough to carry out drainage in the past, to raise capital for that purpose under previous Acts, the liability is now to continue and the people who were not prepared to do drainage are now going to get it done as a national charge. I want to call the Parliamentary Secretary's attention to the injustice of that. You are leaving burdens on the enterprising people who did their work, or attempted to do it, in the past and who incurred certain liability in so doing, and those who were not prepared to work at all will now have the work done as a national charge. I do not know what amount of money will be involved if we are to take over liabilities of that sort. It might be a tall order. Could the Parliamentary Secretary give as any information about it?
I am not sure, but I think it is somewhere in the neighbourhood of £600,000.
Is that not the amount outstanding under all the Acts?
All the Acts. While there is something in the Deputy's process of reasoning, there is not as much in it as one might think.
Some people have got benefit in the meantime?
Yes, and those who have not done anything may have a long time to wait before relief is brought to them. The whole thing is on the basis of repayment over 25-30 years. The actual amount for which the Deputy asked is £583,000.
The Barrow drainage amendments are out of order. They seek to transfer a burden to the Exchequer.
The present liability, so far as the annual sum payable on the Barrow drainage by the three counties concerned goes, is £21,571. It is proposed to reduce that to £7,154?
Yes.
The counties concerned will lose a contribution from the State?
Yes, about £3,000.
The net gain to the local authorities will be about £11,000?
That is right. They are doing fairly well out of it.
But they are not doing well enough. The Barrow is peculiar; I think it is a problem to itself. There is no doubt that the Barrow drainage scheme has brought a big measure of relief, particularly to towns and public roads; but the type of land we have drained there is poor, washed-out bogland, where erosion has taken place for a great number of years. We sometimes get very good results from drainage, particularly near the mouths of rivers, where an alluvial deposit occurs. If you drain that type of land you get rich alluvial soil, which makes exceptionally good grazing land. In this case, where there was drainage of poor land, the vegetation is almost worthless from the point of view of grazing live stock. I think that in the final award the improvement value was altogether out of proportion to the actual improvement. I know one particular individual who holds a pretty substantial acreage, and the annual liability there is something like £127, while the arrears at the moment are something over £800; so the Parliamentary Secretary will begin to appreciate the problem. I suppose he knows the history of the whole difficulty that has arisen on the Barrow from the fact that the drainage charges were not collected there for five or six years. We appreciate that the problem has been met to some extent by the reduction in the annual liability of about £10,400. I do not know whether there is any use in asking the Parliamentary Secretary to reconsider that matter, but I am asking him to do so.
We have followed the recommendations of the Drainage Commission in this matter. In spite of all the claims that have been made and the allegations that have been hurled by riparian owners on the Barrow, the Drainage Commission apparently were not impressed and did not recommend any relief to the riparian owners concerned. They did say that the burden carried by the three county councils concerned was rather heavy — I think it amounted to 5d. in the £ in Kildare, Offaly and Laoighis — and they recommended that the burden be reduced. We are doing so. Regarding the other case, the special contribution that we formerly made to maintenance has been wiped out and, as Deputy Hughes has pointed out, the reduction now amounts to about £11,000.
I do not know this district very well, but I know that the average cost on the benefited lands in the Barrow area was 2/10 per acre, and I know that the average cost on lands improved under the 1925 Act was 4/4. Considering those two figures, it is not difficult to understand that the riparian owners on the Barrow got very good value indeed and got much better value than those riparian owners affected under any of the schemes carried out following the passage of the 1925 Act. I do not wish to go into any discussion on all the pros and cons about the Barrow, but I must say that, from my reading and examination of all the files and papers I could lay hands on since I went into the Office of Public Works, I could not work up in myself any sympathy for those people who have been raising this cry all down the years. There may have been certain isolated cases of hardship, but they were very few and very rare. In the general run of things, the riparian owners in the Barrow district came out much better than those in any of the districts constituted under the 1925 Act.
I would like to give my views on the remission of the arrears. There was agitation for a number of years by an organisation, to have the assessment reduced in connection with the drainage of the Barrow. On more than one occasion, I was a member of a deputation to the Board of Works in the matter, and had some correspondence and interviews with the heads of that organisation. They never asked at that time for the wiping out of the drainage rate altogether. I think the most they asked for was to have the annual charge reduced. As well as I remember, the Report of the Drainage Commission did not recommend the wiping out of drainage rates altogether, but only that the annual charge be reduced. I think it is mean for the people to be still trying to be relieved of their obligations and mean for anyone who attempts to curry a little bit of political popularity by trying to make a case for the remission of those arrears.
I know that there are some poor people in my constituency who are finding it hard to live. In that Barrow district, for want of capital, those people have not been able to carry out the work necessary on their lands to get the advantage of the drainage. Naturally, those people would be very glad to be relieved of the obligation to pay these arrears, and it would be a great relief to them if the county council would take over the obligation. As a member of a public body, I think that, in a hard case like that, the county council would not be doing any injustice to the general body of ratepayers by remitting the arrears. In the case of a widow with a young family, finding it difficult to live and without help or capital, the county council would not be doing an injustice to the general public by remitting the arrears. For that reason, I am very glad to see that it is left optional to the county council to collect these arrears or remit them, as they think fit.
In this section?
Under Section 28.
We are dealing with Section 27.
Very well. Deputy Hughes has stated that that land has no value and that the work is of a very poor type and not worth the charge being put on it. I have some information from that area, which I know well, and I propose to give it to the House. I refer to the flooded area that runs from Monasterevan practically into Athy. Before the drainage of the Barrow was carried out I saw water all over the land there in the winter time with cocks of hay floating about. Since the Barrow scheme was carried out the people who live there admit that there has been an improvement as compared with the conditions that prevailed previously. Previous to the execution of that scheme the people in the district told me that meadows were let at from 10/- to £5 an acre. They said that in one year in every three the meadows were lost and could not be cut. Cattle were taken in for grazing on that land at 5/- per head for the month, but it often happened that they had to be taken away. They were supposed to be grazing on it from May to October. Sometimes they had to be taken off the land before the 1st October. The position is different now, I am told. The letting value of that land has, during the past three or four years, increased, in some cases making from £3 10s. 0d. to £5 an acre for meadowing. Cattle are being grazed on it at from 8/- to 10/- per head per month. I do not think it would be just to relieve people with land of that kind and put the burden on the ratepayers in County Kildare. As a member of the Kildare County Council I would oppose that. I think that in this House I would oppose it also. The man who has a big area of that land in the County Kildare, and who may have taken part in the agitation against the payment of the drainage rate over the past five or six years, may, no doubt, have to meet a fairly hefty demand at the present time. The amount of arrears may be up to £100 in some cases. I take it that the improvement charge would probably run from 2/- to 3/- an acre. That may be a hardship on those people who, during the last five or six years, have not paid their way. At the same time I do not agree that a man who has land which he can let at from £3 to £4 an acre for meadowing, and who can get from 8/- to 10/- per head per month for the grazing of cattle, should have his debts paid for him by the county. I certainly would like to be able to give relief to a poor person, say a widow with a young family. I would be anxious to do that under this Bill just as I would in the case of the payment of the county rate. From a calculation that I made in a couple of cases I found the charge to be about 2/6 per acre. I took two or three farms with valuations of about £40 or £50. Their land is in a poor state of fertility for want of capital. As we say, it is run out.
Who ran it out?
It was not in the last five or six years that it was run out. I know how land can be run out. It need not be run out either. During the past ten years the poor rate on that land has increased, in one case at least, by 3/- an acre.
The Deputy is giving the House a rather long history of the Barrow drainage.
I am pointing out that Deputy Hughes would add on the drainage rate in the case of those men whose poor rates have been increased by 3/- an acre. It is very easy to ask for support for a small section who are agitating, but very often, when it comes to the position of the people in the county, there is nobody to take up their case. We go forward as ratepayers' candidates and all the rest of it, but when it comes to the time to protect the ratepayers' interests I think we forget our promises. I think that Deputy Hughes would be well advised to withdraw his amendment.
What amendment?
There is no amendment before the Committee. The section is under discussion.
I move amendment No.86:—
In sub-section (2) (a) to delete all words from the word "may" in line 34 to the word "any" in line 35, and substitute therefor the words "shall remit".
The trouble with Deputy Harris is that he does not know what he is talking about, or even where we are on the Bill. He came in when we were on the section. He has paid no attention whatever to the Bill up to this. He spoke on the section, but he did not know whether we were on Section 27 or Section 28. He might at least try and be in order.
It is for the Chair to say that, and not for the Deputy.
What about the funding of arrears?
We have discussed that already.
He forestalled you.
He did not know what he was talking about. I was very pleased to hear Deputy Harris's views. The Deputy does not want to make any cheap political capital out of this. At the same time, he is very keen on getting power for the local authority to differentiate between the person, who, from his point of view, is a poor widow, and the man who is well able to pay up. What he really means is that he wants to differentiate between the Fianna Fáil supporter and the man who is not a Fianna Fáil supporter.
He will not do that in the County Kildare, where Labour and your Party have a majority.
I am very glad that he will not do it. That is Deputy Harris's reason for differentiating. I have moved the amendment because I do not like this thing of leaving it to the local authority to remit wholly or in part. We are dealing here with arrears, and whatever we do ought to be applied generally. An invidious position will be created if you have one authority remitting all the arrears, and another local authority in a neighbouring county remitting half of them, and a third local authority in a third county remitting 25 per cent. of them.
Immediately, you will have agitation about that. People living in one county will ask why they should be required to pay arrears when in the neighbouring county it has been decided to remit the arrears or to reduce the liability. It reminds me of legislation passed in this House controlling dance halls. The justices were empowered to make the regulations. One justice is very rigid in the matter and limits the hours of dancing while a justice in a neighbouring district takes a directly opposite view, with the result that there is a good deal of discontent, because the people generally cannot understand the discrepancies. I think we ought to lay down the regulations and provisions. I think it would be very unwise to leave to the local authority the responsibility of dealing with arrears of this sort. We should make a definite decision. I am putting down the suggestion that we should remit wholly for the purpose of having the matter fully discussed here. I am not definitely tied or wedded to that idea, but I do feel — and I hope the Parliamentary Secretary will see eye to eye with me in this respect — that we should make a definite decision that will be universally applicable, so that there will be no differentiation and no question of comparison as between one set of circumstances and another, and so that people will not be approaching Deputies and the Parliamentary Secretary and everyone else who is responsible, asking why the problem should be treated in one way in one district and in quite a different way in another district. I think that is very undesirable.
I am somewhat surprised by the arguments that have been advanced by Deputy Hughes in support of this amendment. I have listened during the course of the discussion of this measure and during the course of discussions of other measures to unbounded criticism of the new developing tendency to deprive local authorities of the right to do everything or anything. Here is a case where we are giving the local authorities discretionary powers that local authorities have been clamouring for, and in respect of which Deputies— maybe not Deputy Hughes — have been criticising us because we have been depriving local authorities of them. Now, when we are giving them the right to decide, we are asked to take that right from them. I have some sympathy with Deputy Hughes to this extent: There is the Barrow problem; there are three counties concerned, and in all three counties there are a number of people who did not pay rates and who could have paid rates. These three county councils have the freedom that is provided for them in Section 28, to adopt a particular attitude towards the collection of the arrears, but I want to make Deputy Hughes and the House aware of this fact, that Section 28 was not inserted here in order to create the temptation for local authorities to deal with a case such as the Barrow case — I mean, to deal with it in the sense of wiping out these arrears. Section 28 was inserted for the purpose of giving to local authorities discretionary powers to wipe out rates where, in fact, it was uneconomic to collect them — small sums and trivial matters of that kind. It certainly was never felt that the power that is being conferred on local authorities in Section 28 should be used for the purpose of enabling these authorities to relieve a section of people such as those concerned in the Barrow area of an obligation that they have been endeavouring to escape down the years while a number of their neighbours met those obligations and paid those charges.
Section 28 was designed for the purpose of conferring upon local authorities freedom to deal with certain types of cases of the nature that I have outlined, and, as I said, I am indeed surprised that we should now be asked by those who have been criticising the modern tendency to deprive local authorities of all power and discretion, to close down on them in the one case where we are giving them discretion.
I admit that I am rather confused by the line taken by the Parliamentary Secretary. I was hoping, as a result of this amendment, that we would get a clear-cut view expressed by the representative of the Government present as to (1) whether those old arrears in the Barrow area should or should not be remitted, and (2) if it is to be left an open question whether it is reasonable to leave it an open question to be decided in different ways by three different county councils. The Parliamentary Secretary, I would say, deliberately dodged facing up to the responsibility of the legislation he is proposing. He deliberately dodged even expressing a view as to whether those arrears should be remitted or not. He deliberately dodged expressing a view as to whether it was wise to leave it to three different county councils, very dissimilarly constituted, to pick and choose as between one individual and the next within their districts.
I think the House is entitled to a lead from the Government in a matter such as this. The Parliamentary Secretary rode away by discussing an Act which is not before the House — namely, the Managerial Act, and reminded the House of claims made that functions should not be taken from councils. This is not a case of taking functions from councils. This is proposing to give functions to councils which they never previously had, to impose the obligation and responsibility on different councils of remitting wholly or in part the arrears which have arisen in the drainage rate in three different counties. Surely, it must strike the Parliamentary Secretary that it is not only quite possible, but quite probable, that any two of these councils will take a different attitude, and does he think there would be anything like national justice if, say, in Kildare, the Kildare County Council totally remitted all arrears, while in Leix the council refused to reduce the rates by as much as 1 per cent? If a situation of that kind did arise, arising out of the Parliamentary Secretary's legislation, does he think for one moment that the Government or the Dáil could stand for it? Through sheer weakness, is he going to invite or precipitate such an absurd situation in three adjoining counties? Is it not clear that the Parliamentary Secretary and Parliament must make up their minds definitely as to whether or not the arrears in the Barrow Drainage area should be now collected, and must not shirk their responsibilities and seek to throw them on to three different county councils?
It is reasonable, in face of the magnitude of the possibilities arising out of this legislation, to urge and to advocate complete remission. If the Parliamentary Secretary and his financial advisers have a different view on that point, let that view be expressed and considered, but let us not have this side-stepping and this discussion in a flippant manner of the Managerial Act, instead of discussion of the Drainage Bill in a responsible manner. The amendment advocates complete remission. As the Bill stands at the moment, it is optional. It is within the discretion of three different county councils to take three different courses —(1) to remit wholly, (2) to remit to the extent of 50 per cent., and (3) to make no reduction whatever. If such a situation did arise, the time of this House would be taken up with amending legislation designed to remove the anomalies and absurdities which are being deliberately invited by the section as it stands.
The amendment proposes to remit all these arrears. I wonder if it would be wise for the House to pass such an amendment? It would give the agitation which went on in the Barrow area a certain authority which it should not get from this House. It would suggest that these people had had a right to agitate and to withhold what the law provided they should pay if the House were to legislate on those lines. It would be very bad in future that the right to withhold rates, whether poor rates, drainage rates or any other rates on the Barrow, should be enshrined in legislation, and that is what the passing of the amendment would mean. If Deputy Hughes and Deputy O'Higgins were neighbours, and Deputy Hughes did not pay his drainage rates, he would have enshrined in legislation now that he was right all the time and that Deputy O'Higgins was a fool to have paid his drainage rates over the years.
I am not satisfied with the section as it is because I think it a weak section in one way. Certain ratepayers in these counties and of other counties also — it does not apply merely to the Barrow drainage area; I think there are arrears in other drainage areas as well — paid their drainage rates, while others refused to pay, as a result of the agitation. They are to get the opportunity under the section of getting away with it, if the county council so decides. They may be people well able to pay their rates, but, if the county council so decides, they will not be asked to pay. There is one fortunate aspect of the whole thing, that is, that it is the county manager, and not the county council, who will decide the matter. It is an executive function which he will carry out and that is the one redeeming feature of the whole matter.
I suggest to the Parliamentary Secretary that it would be far better if he made the collection of these arrears compulsory over whatever number of years might be fixed — ten, 20 or 30 years. I suggest that a fraction of them each year should be collected with the ordinary poor rate so that no semblance whatever of sanction would be given to the illegalities which took place in those areas in recent years. It would be very bad if the House were to give any such sanction, and I suggest that he should amend the section to make it possible for the county council to collect these arrears in the poor rate over a long number of years, so that no great hardship would be inflicted. To give a council the right to remit them would be bad because other ratepayers have already paid the old rates. Whether they were unjust or otherwise, we do not know, but the Dáil at some period in the past decided to give sanction for the collection of these rates, and if we are to remit them now, when some of the ratepayers have paid the rates, while others have refused, you will be doing an injury to those ratepayers all over the country who have met their liabilities.
The county councils of these three counties mentioned had the responsibility of collecting these rates. They did not carry out their responsibility for one reason or another, but I am certain they would no more act up to their responsibilities under this section of remitting or collecting part of the rates than they did in the matter of the collection of what was due over the years. The obvious thing for them to do would be to remit all the rates due. It is obvious that that is what would happen, with the result that ratepayers who paid their drainage rates would have a very big grievance against the Dáil which sanctioned the remission of the old rates. The only option the Parliamentary Secretary has is to provide in the section for the collection of all the rates over whatever number of years may be fixed in order not to make the burden too heavy.
The Parliamentary Secretary has twitted us on the attitude we have taken up with regard to denying powers to the local authorities. We are, as a matter of fact, conferring new powers on the local authorities, but I want to say that we never took exception to it where the power was exercised by this House. We have taken exception all along to the handing over of power which ought to be vested in the people to an individual or to a bureaucratic institution. That is quite a different matter. This is a democratic institution and if we make a decision here as to what should be remitted, we are exercising a democratic right. It is very objectionable to insert a provision which empowers any local authority or any individual to make decisions as between people, or as between one local body and another. That is what I take exception to.
I have already told Deputy Allen that I am not wedded to this amendment, that I put it down merely for the purpose of having the matter discussed. Whatever we decide, we ought to make the decision in this House and make it applicable to all. In the case of the Barrow, substantial arrears have been accumulating for six years, and, no matter what argument may have been advanced, anyone who has gone to the trouble of examining the matter in detail will realise that some of the awards made appear a real hardship and in excess of the improvement value. That is why I have pleaded for consideration of the matter. I again put it to the Parliamentary Secretary that he should consider the wisdom of making a definite decision on the matter here.
The position is even worse than I thought. I was under the impression that whatever remission was made would be a flat remission, applicable to everyone in the county, but the local authority is to be empowered to say that one man must pay up, while another can go scot free. Such legislation leaves itself wide open to abuse. It gives rise to much discontent and to questions as to why one man should get remission. Even if it is the county manager who is to make the decision, is he to go into very close detail, or is he in a position to go into very close detail, with regard to a man's private affairs, into his financial position and into whether he is capable of meeting the arrears which have accumulated, or whether the other man, who may look to be in a better position to pay may be in fact in a worse position financially to pay? We are to legislate here to empower a local authority, or even a county manager, to differentiate as between one individual and another. It would be a most objectionable thing, and I think very few county managers would be ambitious for such power. I say again emphatically that, whatever we do, it should be applicable all round, as it would be the fairest in the long run. It is objectionable legislation.
I should like to say that I know of no case in which a local authority is entitled to use powers of this kind. There is no case for use by a local authority of such powers as are provided here in Section 28. Any decision to remit will affect the funds available to the local authority concerned, and the person or persons whose funds are affected by a certain decision should be the people who would be charged with making a decision as to whether the remission should be made or not. There is no attempt here on my part to try to evade the responsibility of making a decision. I can assure Deputy Hughes and Deputy O'Higgins that if I were a member of a local authority of either of the three counties concerned, if I were a member of a local authority to which the responsibility for the collection of a certain rate was given, I would have no doubt in my mind as to the stand I should take, and as to when I should take it, in regard to the discharge of that responsibility.
I am certainly not now going to make it easy for these people who have all down these years failed to face up to these responsibilities. I say that, since any decision to remit will affect the funds that are available and that will be available to the authority concerned, there is no better case for giving to that authority the right to say whether the remission should be given or not than that fact alone. I made it clear in my original remarks that this power was being given to local authorities, and I left no doubt in the minds of those listening to me that it was not intended that it should be used in a generous manner, but that it was provided for here in order to meet certain cases where a drainage rate was being struck and demand notes were being sent out for very small sums. I gave a deliberate pointer to what was at the back of the minds of those who designed this section, but while I did that, still the responsibility is being given to those on whom the responsibility should rest. Having said so much, I think I am entitled to say that I will resist this amendment to the last.
Has Deputy Hughes no confidence that local authorities will do the right thing? He made a reference to me when saying that Fianna Fáil supporters would make Fine Gael supporters pay. I think that was a very mean reference to make, because on public boards in Kildare it has not been our practice to penalise any section for their political views, and Deputy Hughes should know that.
You are too soft with them.
I am not wedded to the amendment I put down. I merely put, it down for the purpose of discussing the wisdom of putting into legislation a provision of this kind empowering a local authority to remit wholly or in part. The Parliamentary Secretary has made it perfectly clear that he stands for differentiation as between one individual and another. There is no use in his talking about small amounts. In the section there is no limitation as to the amount that can be remitted.
Any amount can be remitted. There is no limitation whatever. The discretion is left to the local authority.
A neighbouring county council need not remit anything. You have that sort of anomaly created, and the most invidious situation might arise, especially in the three neighbouring counties on the Barrow which are concerned. If the same measure is not applied in all three cases, then there is bound to be grumbling and all sorts of representations made, and a hold-up again. That is what I object to. I am not pressing the amendment, but I certainly object to the section.
I was not here for the whole of this debate, but I can see some sense in the amendment which Deputy Hughes has withdrawn, while I agree that he adopted a wise course in withdrawing it. I can see the flaws in the section that Deputy Hughes spoke of. I object to the way in which the section is worded, but I leave it to the Parliamentary Secretary to amend the section on the Report Stage. It seems to me a very wrong principle for this House to set up, to allow councils or any other body to decide what we could clearly decide for ourselves here, whether one section of people, who had a statutory obligation to pay sums of money, are to escape payment, and others, who did comply with their obligation, are to be mulcted in the costs. I can foresee very grave difficulties in the operation of the section, and grave dissensions amongst local authorities. Deputy Harris took to himself a reference made by Deputy Hughes. I do not suppose that Deputy Hughes intended to refer to Deputy Harris's integrity, if he is a member of one of the councils concerned. I am quite sure that Deputy Harris would act in a proper manner in any decision he might come to. But this would put members of local bodies in an impossible position when they have to decide as between A and B, to decide as to who was to pay and who was to escape. I for one would not be prepared to stand for any such discretion being given to local authorities.
On Section 23 we agreed with the Parliamentary Secretary on the desirability of putting in safeguards for the county council, in the event of litigation by an individual who felt that the maintenance was not properly discharged by the local authority. Here I cannot see that any limitation is put to the degree of efficiency up to which the commissioners may compel the local authority to keep a drainage scheme. That is what I take exception to in this particular section. In sub-section (2) (c), line 49, it would appear that you have a liberally drafted paragraph to eliminate any consideration by the courts as to whether the proper maintenance was carried out or not. The local authority has no court of appeal regarding the degree of maintenance. Would the Parliamentary Secretary say why there is no reference in this section at all to the appointed day and to the way in which the maintenance was done prior to the appointed day?
There is no necessity, as those districts are already under their charge.
Is not the proper interpretation of this section that the commissioners can compel the local authority to improve the efficiency of the drainage work over and above the state it was in on the appointed day?
These districts are largely districts which were transferred under the 1925 Act and there were many cases in which the councils that have since been responsible for the maintenance did not strike the rate or collect it and did not spend the necessary money. If, in future, a council fails to expend the necessary money on the maintenance of the particular district, it could be fairly stated that that council was failing to maintain the district up to the standard to which it was legally obliged to maintain it. In that case, the drainage authority could step in and do the work and make the council responsible for the cost.
Why is not some refer ence made to that — that the amount to be expended is limited by the final award?
I am only stating that to show where it could easily be established that the proper maintenance was not being carried out.
I think that under this section a local authority could be very harshly treated and have no court of appeal whatever. I will oppose the section, unless the Parliamentary Secretary is prepared to put in some safeguarding provision, limiting the amount of liability to that of the final award, in the case of work done under previous drainage schemes. My interpretation of the section is that the commissioners can compel the local authority to maintain a drainage work to a very high degree of efficiency, far higher than that in which it was on the appointed day. As a matter of fact, if there were an unemployment problem in the district, it could be utilised by the Government to relieve unemployment, even where it might not be economically sound to do that, from the point of view of drainage and the service of the drainage generally.
The section is wide open to abuse and, for that reason, I press the Parliamentary Secretary to consider putting in some clause to safeguard the local authority, so that it cannot be mulcted for any amount the Commissioners may decide on. If there were a big unemployment problem to be solved, the Government, using the Commissioners for an ulterior purpose, might use this as a convenient way to put a lot of men at work and let the ratepayers pay for it.
One of the great weaknesses of the 1925 Act was that, although the districts were handed over to the local authorities, there was no power afterwards compelling them to maintain them and, in many cases, they proceeded to neglect works that were constructed at great expense. Surely it must be admitted that we here are entitled to have a section in this Bill, having regard to the experiences of the past, that will enable us to compel a local authority to discharge its statutory obligations?
Quite; no one is objecting to that. What we want is that the Parliamentary Secretary should set some limit.
What objection can there be to the insertion of a clause setting forth that this section only applies to schemes completed under the 1924 and 1925 Acts? Section 23 undoubtedly safeguards county councils in regard to schemes which have been carried out subsequently.
So far as the standard of maintenance is concerned, there is absolutely no safeguard at all for the county councils according to the phrasing of sub-section (1) of the section. Surely, from the Parliamentary Secretary's point of view, there can be no possible objection to a clarification of that sub-section so as to ensure that it will only apply to county councils who have failed to carry out their responsibilities in regard to schemes under the 1924 and 1925 Acts.
There are certain other districts for which the county councils are also responsible.
That can also be stated. The sub-section, as worded, is bound to cause a certain amount of uneasiness and misunderstanding in the minds of people who are interested in the schemes carried out under the 1924 and 1925 Acts. For the sake of clarity, and even for the sake of simplifying the problems that the Drainage Commissioners will have to deal with, it seems to me that a simple form of words could be designed to make the meaning of this sub-section clear and intelligible.
It is unreasonable to think that we are going to make a county council do something that is unligible called for. Let us not be trying to look for snags where there are none.
That is the sort of argument that we have to listen to. We do not intend to do that. The Parliamentary Secretary cannot bind his successor to any line of policy.
What I want to bind the maintaining authority to is this: that they will be responsible for maintaining these districts up to a proper standard. That is our only interest. If they fail to do that, then we are taking the power to go in and maintain the district up to a proper standard and charge the cost of doing so to those who have failed in their responsibility. I do not think there is any justification for watering down that power. Anybody who reads the report of the Drainage Commission and realises the condition into which drainage districts were allowed to get because of the neglect of local authorities — districts in which large sums of money had been expended on works of reconstruction — will not object to the power that we are taking here. That neglect took place because of the failure of the local authority to spend a couple of hundred pounds per annum on the drainage district. This section is designed to make sure that such a situation will not arise again. I do not want any more power than that, and I am not agreeable to modify the section in any way.
This section covers not merely work that was the responsibility of the local authority but work that has been transferred to it.
No. It refers largely to schemes that are already the legal responsibility of the local authority. It will scarcely be applied to those that will be transferred on the appointed day.
At any rate, we are told that in future drainage work in this country is going to be a national charge. Therefore, any development in the existing conditions of drainage ought to be a national charge. If this section is operated as I fear it will be, it means that you are going to get the local ratepayer to pay what was intended to be a national charge, and in that way get drainage in certain areas into an efficient condition without any Exchequer payment at all. The cost will be thrown back on the local ratepayer. In my opinion, unless some safeguard is put in, that is going to happen. If the Parliamentary Secretary is prepared to limit the amount to the final award under the parent Act, I am quite satisfied.
I am not even prepared to do that.
No, because you want the section to be wide open so that the local authority will be at the mercy of the commissioners and will be directed to bring work up to a certain degree of efficiency, regardless of the condition in which it was prior to transfer on the appointed day. The local authority is to have no right of appeal. The commissioners are being given arbitrary powers. I resent that. The local authority may feel aggrieved over the whole matter, but yet there is to be no means of adjustment. The right to bring an appeal before an appeal board is cut out. I could not possibly support the section.
This is another instance of the way in which this measure is being handled. It was received with great favour on the Second Reading. There was good feeling shown towards it. Early on the Committee Stage I pointed out to the Parliamentary Secretary what his political and constitutional duty was in this matter. He agreed that he stood between the civil servants and the people. That happened on a Wednesday. What was my surprise when I opened the Sunday Independent at the end of the week, and read that when a deputation from Limerick came to interview the Parliamentary Secretary the members of it were told by him that they had no rights; that they had no chance of enforcing a right against a Government Department. When the Parliamentary Secretary got this Bill from the officials, why did he not get a motor car and go with it up to the Phoenix Park and get it signed? Why go through this farce with it after declaring that the people have no rights? Surely, the people who are footing the bill have some rights. They have the right to be heard when a wrong, or an alleged wrong, is stated to exist. That was a most extraordinary attitude for the Parliamentary Secretary to take up: to tell a deputation from a local authority that they have no chance of enforcing a right against a Government Department. When did Government Departments become sacrosanct, and whence did they get their rights? Why does the Parliamentary Secretary allow these people to treat him as a nabob of office for the time being, forgetting that so far as legal rights exist they only exist in this Bill when it leaves this House? It is a shocking mentality, a pretence of democracy. This is a deliberative Assembly. This House, by discussion and deliberation, tries to produce the best instrument it can. The Parliamentary Secretary comes to this House as a public representative——
The Deputy should remember that we are now dealing with only one section of the Bill.
This is relevant to this section. It is a shocking mentality. The county councils may be asked by the commissioners to do repair work that will keep all the drainage work good for 25 years after the appointed day, thus saving the national charge and, to that extent, placing it on poor ratepayers and perhaps on very poor districts. Surely the Parliamentary Secretary, when he reflects, will come to the conclusion that he has some duties to the people that sent him here. The people in the Department sent him here with a hammer over his head, with a threat that if he should depart from the section, God should look down on him when they got him back. I should like to arouse the Parliamentary Secretary to a sense of duty and to an understanding that there are rights in the people. If they have no rights, let us put an end to this sham of pretending that this is a deliberative Assembly. The attitude maintained in this Bill since the first amendment was moved appals one. Where are we going? The Parliamentary Secretary says: "I am going to take these powers and I am going to have these powers and nobody is going to have any powers against me." Is that the attitude? Is that this Bill? Why waste time about it? Take it away with you and get it signed at once.
I do not know that the Parliamentary Secretary is in such danger as Deputy McMenamin seems to think. I do not think the Parliamentary Secretary is afraid of hammers being held over his head. I think he will be able to take care of himself.
He gives that impression anyway.
I think he is well able to stand on his own feet as regards this Bill, and if there is any danger of hammers I think it is more or less on this side of the House. In regard to the section, I am afraid, like other sections, we will have to oppose it. We were arguing on somewhat similar lines on the previous section in which the Parliamentary Secretary endeavoured to safeguard county councils. Some of us objected to that section for various reasons, some because it did not offer sufficient protection to riparian owners and others because it did not offer sufficient protection to county councils. In connection with this particular section, our regard is for the county councils and the ratepayers. It is quite conceivable that some of the existing drainage schemes in the country will be in such a condition on the appointed day that nobody would consider them as being in a reasonable state of repair. The Parliamentary Secretary objects to the use of the word "reasonable". Deputy McMenamin suggested the word "reasonable" might be put into this section.
Before the word "repair".
I would not mind if it were put in in four or five places but I do not know that the word "reasonable" would meet all the objections to this particular section. In fact I do not know whether the combined wisdom of the Parliamentary Secretary and the Opposition could devise machinery to deal with all eventualities. I do not believe it could be done but we should try to make the Bill as good as we can make it. I do not believe that we could provide for such a circumstance as Deputy Broderick mentioned as occurring in the Youghal district where an area was subject to tidal incursions, or other circumstances that one can envisage which might cause tremendous expense to particular county councils. I do not suppose any words we could use would provide for all that, but certainly we ought to make the liabilities on the county councils as small as possible.
I can see the possibilities of the commissioners assuming, even after investigation, that an existing drainage scheme is in a reasonable state of repair. I think some provision should be made that that decision should not be made until there has been consultation, say, with the county engineer or somebody on behalf of the local body and that they, too, should be satisfied that the particular scheme was in a reasonable state of repair and should be maintained in that particular condition. I do not think anybody in the House would object to that. I should like to see some provision that the commissioners will not have the last word in deciding whether or not a scheme is in a reasonable state of repair at a certain date because, like all human beings, they are liable to error. There ought to be a connecting link between the commissioners and the local body, and there should be some provision for agreement between the commissioners and the local body, giving the commissioners power to insist that, subsequently, when the Act is in force, the county councils should be compelled to keep the district to at least that standard of repair. But there will always be controversy on the point as to whether or not on the appointed day the schemes were in a reasonable condition of repair. I am not suggesting that the insertion of the word "reasonable" will provide for all eventualities, if the Parliamentary Secretary has a better way of doing it. I think the obvious thing would be that the Parliamentary Secretary should give an assurance that on Report Stage he will provide some machinery that will make it reasonably probable that there will be no dissension between the commissioners and the local bodies as to whether or not a scheme is in a certain state of repair.
I would agree with the Parliamentary Secretary that a section such as this is necessary in order to ensure that maintenance works will be carried out. The words in the section are "existing drainage works should be properly maintained". The important words are "properly maintained" and it is a question then of defining them. In fairness to the Parliamentary Secretary, I think he would be prepared to insert some safeguard, if he could see the possibility of doing so without interfering with the operation of the section, and if the Parliamentary Secretary gave an undertaking that he would reconsider this section with a view to seeing if it was possible to put in a safeguard, I think the House would be prepared to withdraw opposition to this section.
If the Parliamentary Secretary is not prepared to give such an undertaking, we have a position in which the commissioners will be called upon to decide whether the works are being properly maintained by the local authority or not, and in coming to their decision the commissioners are certain to be influenced by the extent to which a decision on one side might commit the Exchequer to increased expense or, on the other side, might impose an increased burden on the local authority. I think the commissioners, as ordinary human beings, would be inclined to decide in favour of the central authority as against the local authority. By deciding that the local authorities are not carrying out their duties properly and by compelling them to undertake large expenditure, they would be saving themselves the trouble and the expense of undertaking such work.
The section also provides that where a local authority, in the opinion of the commissioners, has failed to carry out a work properly, the commissioners may undertake the work and present the bill to the local authority. Unless there is some safeguard in the section, it will cut across the whole purpose of the Bill, which is that drainage work will be a national charge, because there is a danger that maintenance might be interpreted by the commissioners as meaning something more extensive than maintenance, something in the nature of construction, and thereby impose a portion of the cost which the Exchequer is supposed to undertake upon the local authorities. Without a safeguard of some sort, there is a grave danger to the local ratepayers in the section, and I ask the Parliamentary Secretary sympathetically to consider the case put up by members of the Opposition and to see whether it would be possible to have included in the section on Report Stage some definition of "properly maintained" which would safeguard the interests of local ratepayers.
I agree with the Parliamentary Secretary that in cases where the local authorities failed to carry out their duties in the past in regard to schemes carried out under the 1924, 1925 and some of the earlier Acts, measures must be taken to see that they discharge their duties properly in the future. We on this side are at one with him, so far as his desire in that respect is concerned, but we are still dissatisfied with the form of words in sub-section (1). It says that a notice of disrepair is to be served on defaulting local bodies. I should be anxious to know what that notice will contain. Will it contain particulars of the final award; in other words, will it contain particulars of the amount originally set aside for the purpose of the future maintenance of the drainage work? What information will it contain? Will it be a bare, blunt notice informing local authorities that they have failed, and failed lamentably, to carry out their duties and that if they do not discharge them in future, they will incur all sorts of pains and penalties?
If the Parliamentary Secretary could assure me that the notice of disrepair will contain particulars of the amount of the final award, I would perhaps be inclined to modify somewhat my opposition to the sub-section, but we are dealing here with legislation and the Parliamentary Secretary is very definite in his own mind as to the type of case this section is intended to apply to. In an Act of the Oireachtas, the language must be clear and precise, and the language in this sub-section is not by any means clear and is certainly not precise. If the notice of disrepair does not contain any mention of the final award, it appears to me that the commissioners are at liberty to set any standard of maintenance they like, and the standard they may set may bear no relation at all to the standard set in respect of the works which will eventually be completed under this method.
I agree with Deputy Cogan that it should be possible to introduce a simple amendment which would meet the difficulties of members on this side particularly, and, at the same time, make the intention of the Parliamentary Secretary and the commissioners clear as to the types of cases it is intended to refer to. If the Parliamentary Secretary is not prepared to meet us in that respect, I am afraid we cannot withdraw our opposition. I certainly maintain that, as the section is phrased at the moment, it gives the Board of Works indiscriminate power in respect of schemes completed under the 1924 and 1925 Acts which local authorities had failed to maintain properly.
I take it that, after the appointed day, all drainage works in drainage areas will be maintainable by the local authority?
For the time being.
Irrespective of what the conditions before the appointed day were and irrespective of whether they were the liability of the council or not?
Remember that in this section we are dealing with districts which are to-day, and were yesterday, and before the passage of this Bill into law, the responsibility of the county councils in relation to maintenance.
That is what I had in mind. Am I to take it that it includes all drainage areas?
This section deals with the districts to which I have just referred. It deals with districts which are to-day, and were yesterday, the responsibility in the matter of maintenance of the county councils.
That simplifies my case, and it comes down to a question of liability for maintenance. The local authority was bound to maintain them in reasonably good condition and there is no great objection now to a council having to do so under this Bill, as it was their liability before, but where we join issue in this business is on the point of the undefined power of the Board of Works, or its engineers, to assess the liability of a council for works; in other words, that the local authority could be called upon to pay a sum far in excess, under this system of getting the work done, of what it would have to pay if it had operated with its own engineers.
All the House ought to do, considering that the liability is already accepted, is to restrict the power of the engineers in respect of assessing the liability of a local authority as the interests of the case demand. I think it ought to be amended to provide that the Board of Works engineers would notify the county council of the works or repairs necessary, and give their estimate of the cost, and then let the local authority carry out the work with its own engineers. Where you have people, such as the engineers of the Board of Works, not accountable to the local authority for spending the money of that authority, it is a bad principle. The local engineers would be responsible to the local authority for the money expended. What I am against is the very bad principle of committing a local authority to an expenditure over which they would not have any control. Do you follow that?
I do.
We should either devise ways and means to control that expenditure or, as an alternative, allow the local authority itself to put the works into good condition. In many cases where work has been done by the engineers of the central authority there has been a painful experience both in regard to the expenditure and as to the way in which the work was done. I am very hesitant to accept any section in this Bill which would entirely relieve the engineers from responsibility to the local authority in regard to the spending of money. My objection to this is that you are bringing in engineers from the Board of Works to state what improvements are necessary and committing the local authority to an undefined and unlimited expenditure without the knowledge of the local authority. I think some means should be devised on the Report Stage by which the engineers of the Board of Works could report to the local authority as to the repairs necessary and the cost or, as an alternative, that the local authority should have the work done by its own engineers. I am entirely against the principle of handing over to any persons the power of spending money without any responsibility to the local authority whose money they are spending.
There are no grounds for the fears to which expression has been given by Deputies on this section. We had, under the 1925 Act, responsibility for inspecting drainage districts every five years to check up upon the manner in which they were being maintained by the council responsible for maintenance. But we had no power to compel the council to carry out the work when we found that that responsibility was not being discharged. Deputy Cogan makes the case that an issue will arise here as between the finances of the State and the finances of the local authority and attempts to seize upon that to establish that we, as the arbitrators, as it were, between the two would be likely to decide in favour of the Exchequer as against the local authority. The Exchequer is in no way involved in this, not even to the extent of one farthing.
That is our objection to it.
I am dealing now with the argument advanced by Deputy Cogan. There is no ground for his fears. Deputy Roddy says that, if it were clearly stated what the notice to be served on the local authority would contain——
That is not what I said. I asked would the notice contain particulars of the final award, the amount which the councils had to spend for maintenance.
Sub-section (1) says:
"It shall be lawful for the commissioners to serve by post on such council or each of such councils notice (in this section referred to as a notice of disrepair) stating that in the opinion of the commissioners the maintenance or repair work specified in that behalf in such notice is immediately necessary..."
I think that the notice provided for there is the type of notice the Deputy had in mind.
What I want to find out is what particulars that notice will contain. There has been a final award in respect of the scheme, and, according to the terms of the final award, the county councils are responsible for spending an amount for maintenance on the scheme each year.
You want me to accept an amendment tying down the county council to responsibility only to the extent of the estimated amount necessary for maintenance and as shown in the final award. I am not prepared to accept that. While in a general sort of way, I admit that the sums provided for in the final award would be necessary and adequate, there may be cases in which the sum provided for in the final award may be in excess of what is required. There may be cases in which the sum specified in the final award might be inadequate.
That is our objection to this section.
Whether Deputy McMenamin regards this as a dictatorial pronouncement or not, I must accept whatever falls upon me as a result of any opinion I may express in that regard. This section is designed for the purpose of ensuring that the local authorities, who have had the responsibility for the maintenance of certain drainage districts now in their charge, and who have not properly discharged that responsibility, shall be obliged in future to discharge their responsibility and keep these districts in a proper state of repair and no more. I do not think that there can be any objection to that. After all, you are setting up a drainage authority and giving the responsibility of deciding much bigger questions than that one to this drainage authority. To try to make the case now that we, who have in previous sections endeavoured to protect the local authorities, are now seeking in this section to do something that is contrary to what we have been seeking to do in others seems to be a bit absurd. All we are seeking here is the power to ensure that the people who have the responsibility now, and who, in some cases, have not discharged that, will in future discharge it, and that, where they fail to do their duty, we will have power to go in and discharge it for them at their expense.
No question of State funds versus local authorities' funds arises in any shape or form. No question arises of trying to do work that would afterwards relieve the State of work it would have to do on foot of the major scheme when it came to deal with that particular district. There is no substance in any fears to which expression has been given here, that injustice could be done or that the drainage authority would be in any way biased, because they have nothing to be biased about, nobody to be biased against. They have no function other than to see that the works are maintained in a proper fashion.
But if the amount specified in the final award is not to be spent on these schemes, what amount will be spent?
The amount that will be necessary to maintain them properly.
Who is to determine the amount to be spent and how is it to be determined? Is there to be an examination before the notices are sent out?
Yes, by us.
You will determine the amount?
The extent of the repairs that are necessary.
Regardless of the award?
Of course. Would it not be absurd to commit a county council to spend £500 on maintenance if it was established that £250 or £300 would suffice? Would it not be equally foolish to limit a county council to spend only the amount that was provided in the final award if another £100 was necessary to make the job a proper one? Surely that is a reasonable stand to take?
All the difficulty which has arisen in connection with this section would have been avoided if the Parliamentary Secretary had accepted an amendment providing for an appeal tribunal as between the local authorities and the central authority. Since he has not done so, the suggestion has been put forward that some alteration should be made in the section which will give a safeguard to the local authority. The Parliamentary Secretary stated that the funds of the national Exchequer could not possibly come into consideration in regard to this section. I do not quite agree. I think that there are always borderline cases where the commissioners might have to choose between undertaking a new constructional work, a new draining scheme, or compelling the local authority to perfect or extend an existing scheme. That is to say, they could decide that the work to be done was maintenance and not constructional work. I think in that case, by deciding that the work was maintenance work and compelling the local authority to do it, they would be saving themselves and the Exchequer a considerable amount of money, and would be putting an additional burden on the local ratepayers. There I feel the issue as between local and national finance would arise. I may be wrong, but that is the danger which I see in this section, and my fears have not been removed by what the Parliamentary Secretary has said.
On reconsideration, I think the section is even worse than I originally thought it was. We opposed Section 23 because some of us had the view that it did not protect the riparian owners, while others held that it did not protect the county councils. But there was this safeguard for the county councils, that the Parliamentary Secretary was adamant that nobody would have a case against the county councils as long as they kept the existing drainage works in as good a condition as on the appointed day. He has departed from that in this section and he is not satisfied with keeping them in as good a condition as on the appointed day. He is taking away the safeguard that he was so anxious to protect them with in Section 23, and is compelling them to maintain and repair a work in an unspecified way; in other words, in whatever condition the commissioners may decide. I do not think we should give the commissioners that power.
Deputy Roddy referred to the final award. I am not sure the final award makes absolute provision for the sums to be spent on maintenance. I agree with the Parliamentary Secretary that it would be impossible to state the exact sum of the yearly maintenance cost. There would be the question of rising wages to consider, and one could not say that it would cost the same amount every year. The same type of work one year and another would cost a different sum. The principle involved here is that they should not be asked to keep it in a condition beyond reasonable repair. If they were handed over an undertaking in a certain condition, every Deputy will agree that they should be bound to maintain it in that condition and should not allow it to go beyond that condition.
I think the Parliamentary Secretary ought to put in some provision which will safeguard the county council to that extent as between them and the commissioners. Let there be some provision for a consultation and an agreement between the local engineer and the commissioners that on the appointed day an existing scheme is in a reasonable state of repair and it must be kept in that condition. There would be no objection by the House to that. I do not think it is fair to ask the House to give the powers the Parliamentary Secretary expects in this section.
My principal difficulty with this section is that it confers on bureaucracy, national and local, powers of imposing taxation on the local community without at the same time giving the local community any voice whatsoever in the expenditure of that money. When this section comes to be operated, what will happen is this: the engineers of the Board of Works will simply issue their ukase to the county manager, who in turn will tell the county surveyor to do the job. Whether the county manager acts or not is immaterial. I take it that will be the position. You will then have the position that the local community will be mulcted in sums of which the local authority disapprove and I think that is a very vicious principle to introduce into any administration, national or local — that you have money being expended, charged to the local people without the representatives of those people having any voice in the matter.
It is because of that principle I oppose this section, and I seriously suggest that the Parliamentary Secretary should introduce some formula by which at least consultation should take place with the local authority — the county council — before any expenditure is embarked upon. There is no appeal from the decision of the commissioners and I think it is only reasonable to ask that some such provision as was contained in Section 23 (f) would be embodied in this section; that is, that the commissioners should not embark on any expenditure unless in a case where the council had failed to keep the drainage works in a state of repair at least as good as they were in on the date of the previous inspection or on the appointed day and, secondly, no expenditure should take place until the local authority would have a full and ample opportunity of going into the matter with the local surveyors. These are reasonable requests, and I think that the Parliamentary Secretary should consider them in the light of what has been said, and make suitable amendments on the Report Stage.
Could the Parliamentary Secretary say if there is any difference between maintenance and repair?
No.
Would repair mean new work?
Repairs do not come into this section at all.
Of course they do.
It is maintenance.
Of course, it is the same thing.
If the bank falls in it must be repaired.
What Deputy Allen means is extensions.
Yes — reconstruction.
Not in that sense.
It could be defined in that way.
There is the tendency right out through this Bill to give the commissioners power to do almost anything. Under sub-section (3) of this section the commissioners are being given power to enter on any land to do all such things as shall, in their opinion, be necessary. They can take soil and other materials from the land, and are being given power to throw their weight about and do almost anything they like. They can take soil and other materials from the land, irrespective of whether the land is close to an embankment or not. They can, without any restriction, dig the top soil off the land to build a bank. I think that is most objectionable. I put it to the Parliamentary Secretary that the powers of the commissioners should be more closely defined. Under the section as it stands, the door is being opened wide so that they may do almost anything. Individuals or local authorities who may feel that they have a grievance are being denied the right to go before an appeal board or to any court with it. The Drainage Commission recommended that an appeal board should be set up for certain purposes. It may, and can, be said that the commissioners should be given wide facilities under certain conditions. While that is so, the fundamental rights of the individual should be preserved. His freedom and liberty are at stake here. If an individual feels that he has a grievance either against his fellowman or against the State he should be able to exercise a fundamental right in any democracy of bringing that grievance into court in order that he may get an impartial decision on it.
Elaborate precautions are being taken by the State to ensure that justice is done in all cases, but in this instance a bureaucratic institution is being endowed with very wide powers to do almost anything. No matter what injustice is done, the individual concerned is to have no redress. I think it would be unwise and undesirable for Parliament to give to any body power of that kind. Some safeguard should be put in for the protection of the individual.
This set of words has been used in the 1923 Land Act. There is nothing new or unreasonable about it. If any body is to have the responsibility of repairing, improving or reconditioning embankments it must have the right to enter on land, to dig and remove sods and to do all and any such things that it may find necessary. As I said on a previous occasion, there is, behind all that, provision for the payment of compensation where injury is done. There would be no use in trying to define those powers more closely. That was not attempted in the past. If it were attempted now it would not be successful. It could only succeed in making the work that we are undertaking in this Bill impossible.
If these phrases have been used in previous legislation I certainly do not think that the word "embankment" has ever before been defined in this way. It is said to mean "drains, sluices, pumps, water courses, etc.". That means that an embankment can be almost anything.
These things can be situated on an embankment.
Will the Parliamentary Secretary say if it would be possible for the Drainage Commissioners to take over an embankment in a case where there are no trustees in charge of it?
Yes.
I am afraid not. Sub-section (1) says that the Minister, on the application of the commissioners, may transfer to them the control and management "of any existing embankment and, where such existing embankment is, immediately before the date of such order, vested in trustees". It is only that type of embankment that, I think, can be taken over. I think that, on this section, it is appropriate for me to refer to an aspect of the Barrow drainage which has been so much under discussion to-day. Deputies seem to forget what the effects of drainage the upper reaches of the Barrow were on the lower reaches where the drainage enters the bounds of the County Carlow and on into the County Wexford. It is time somebody said a word about that.
The County Wexford and the people who own land along part of the Barrow in Wexford, around the town of New Ross, suffer very considerably as a result of the expenditure of moneys provided by this House for the drainage of the upper Barrow. There is no power taken in this section to take over those embankments. The upper reaches of the Barrow were drained and the flood-water was let down very swiftly into the lower reaches around New Ross and along that district, with the result that the embankments there burst and hundreds of acres of land have been flooded for some years. These embankments must be taken over by some central authority. That is definite. As far as I read this Bill, there is no provision whatever to enable the commissioners to take over these embankments on the lower reaches of the Barrow. The town of New Ross, which has a population of 6,000, and where there is a good deal of public and private property, is in danger of being wiped out unless some provision is made — I think this would be the appropriate section — to enable the Drainage Commissioners in future to take over these embankments and to repair them. On the Barrow, between New Ross and Campile, a very serious position exists at the moment. There has been a malarial swamp there of about 300 or 400 acres for a number of years. No central authority or local authority or anyone else is prepared to undertake the necessary repairs to the embankments. The embankments have burst as a result of the floods that come down from the Counties Kildare, Carlow, Laoighis and Offaly. I would ask the Parliamentary Secretary to make provision in this or some other section, on the Report Stage, for the taking over and repair of these embankments on the lower reaches of the Barrow. It is a very serious matter, and I hope it will be dealt with in this Bill. I want to ensure that the Bill will enable the drainage authority, when the time comes, to take over the embankments and put them into repair.
I can assure the Deputy that power to take over any embankment is contained in Section 31.
Sub-section (1) of Section 31 does not empower anybody.
It does. If the Deputy reads the whole section carefully he will find we have power to take over any embankment.
In this case it would be to take control, because you are not taking over from anyone.
No one.
Even in that case, we can take over any embankment, whether it is an embankment in relation to which there is a trust or not. The Deputy need have no fear on that score. There is nothing in the section to make it obligatory to deal with embankments in any particular way. It merely gives the drainage authority power to decide when and where and how embankments of this particular type are to be dealt with.
I am satisfied so long as they have power to take over.
The discussion on amendment No. 94 might cover also amendments Nos. 100, 102, 105 and 115. They all deal with certain trust funds which it is suggested should be paid into a special trust fund to maintain embankments.
The principal amendment would appear to be No. 100.
Yes. We could take a decision on No. 94 as you suggest.
I move amendment No. 94:—
In sub-section (2), line 59, page 21, after the word "expenses" to insert the following words:—"over and above the income available from any trust fund which exists for the maintenance of the said existing embankment".
In this legislation dealing with embankments, the commissioners will be responsible for reconstruction and the local authority will pay the maintenance cost when the bill is presented.
We have already provided in a number of cases, especially under the Land Commission, substantial trust funds for this particular purpose, and it is proposed to confiscate such funds and to rake them into the Exchequer. The tendency in recent years has been for the Minister for Finance to rake into his coffers any fund that is available. Some years ago there was a fund known as the Land Registration Fund. Substantial capital sums of money of that sort have been quietly raked in. I think it is very injudicious and unwise, particularly in a case like this dealing with drainage, that capital sums that are available and which yield a yearly revenue to perform certain works should be destroyed. Once that capital asset is destroyed it means that the sums necessary for maintenance must be provided by the Exchequer out of the national income and it means that someone has to sweat a bit more to produce the annual sum necessary for the repair work. I think it is a very short-sighted policy to permit a substantial capital sum of money that is set aside for a particular purpose of drainage to be destroyed. It will mean that we will have to work harder in future to provide, in addition to our normal income, an annual sum for this purpose.
I am vigorously opposed to a provision of this sort where you are going to destroy a useful capital sum and impose the obligation on the people in a particular county of stepping up their income in order to maintain their present standards in their homes and meet a higher rate. The series of amendments covering this point is intended to preserve existing capital in a fund known as the Embankments Fund.
Why should we agree to the destruction of a capital sum like that merely to help to ease the problem which the Minister for Finance has to face in these difficult times? Why should we look at it merely from the point of view of a particular year on the basis of helping the Minister in his Budget and wipe out capital of that sort? When we have to meet possibly with more difficult times in the post-war period, we may regret that this House agreed to a policy of destroying useful capital sums which in the past gave a yearly revenue for very useful purposes. We are all against the destruction of capital of that sort and we believe that it is sound policy to preserve such capital which will provide a regular yearly sum for maintenance.
The Deputy, I am sure, has heard the expression which is sometimes used in the country, "trying to have the hide and the price of it." It seems to me that the opposition to this proposal is in keeping with such an attitude. Many of these embankments, even those in respect of which there are trust funds in existence, are admittedly in a bad condition, which would seem to establish the insufficiency of the amount set aside for proper maintenance purposes. There are also embankments in respect of which no funds are set aside, and we are making it possible to take over as we go along any embankment which we think is capable of being reconstructed and afterwards maintained. The fact that an embankment is found to be in a bad condition is a proof that the provision made was insufficient, and where no provision at all was made, the position is still more lamentable.
Deputy Hughes talks of the tendency to rake in funds of this nature into the Exchequer in order to ease the position of the Minister for Finance in the preparation of his Budget, but is it not reasonable that funds of this nature should be taken in by the Minister for Finance when the Minister is undertaking, in the name of the taxpayer, a much greater burden? I do not see how such an action will have the effect of helping to remove the anxieties of the Minister in relation to his Budget. I contend, and I think it will be generally accepted, that what is suggested here is that the State should take these embankments and recondition them at the expense of the taxpayer, and that whatever funds are in existence should be left there for the purpose of relieving the local authority in whose area the embankment is situated of the cost of maintenance or of contributing to the cost of maintenance. I do not think that is a fair or equitable proposal at all.
These embankments are situated largely in one particular part of the country, and what would happen is that while the taxpayer is given responsibility for their reconditioning, just as he is taking on responsibility for the reconditioning or constitution, as the case may be, of a drainage district, and while responsibility for maintenance, both in a drainage district and in the case of an embankment, is being transferred to the local authority, the position would be, if these amendments were accepted, that the counties in which embankments only exist, and in respect of some of which there were trust funds, would not only be relieved of the construction cost but of the maintenance cost, while counties in which drainage districts had been reconditioned and constituted would have to pay the full cost of maintenance. No reasonable case can be made for the amendments, and I do not think that even the mover has shown any great enthusiasm for them. I shall have to oppose them all.
I am enthusiastic about them, although the Parliamentary Secretary may not think so. We give the impression to the country — and we as a Party have supported it — that this whole problem of national drainage will have to be a national charge. Our experience of drainage and the operation of Drainage Acts in the past was that work became impossible. The work was not done and drains became choked, with the result that land was being inundated. It represented a national blot, as well as a national loss, and if it were to be tackled in a systematic and effective way, it would have to be a national charge. That is where we started off and we had common ground there, but as we examine this in detail we discover that funds set aside for maintenance are now to be confiscated to execute the work.
The Parliamentary Secretary argues that that is right and proper. These funds were definitely set aside for maintenance, and why should they not be applied to the purposes for which they were originally set aside? We are now asked to confiscate these funds and to put them into the Exchequer, to be devoted — they may or may not be so devoted — to reconstruction of works. We have no assurance that they will be devoted to that purpose. However, it may require possibly more than the capital sum involved, but what I do not like about it is the destruction of capital sums which give an annual income and serve a useful purpose. The argument which the Parliamentary Secretary advances is that special financial advantages or facilities are being given to counties where these trust funds have been created over other counties. In the particular constituency I represent there are no such funds involved, and I do not think there is very much in the contention of the Parliamentary Secretary when we bear in mind the basis upon which we started off. These are parts of the country at high altitudes where the people are short of water.
I move to report progress.
