Committee on Finance. - Local Government Bill, 1945—Committee Stage (Resumed).

Debate resumed on amendment No. 85.

I would like to support the amendment in the name of Deputy Byrne. In principle, there is a good deal to be said for it. It suggests that, before a local authority is abolished, a public inquiry should be held, to be conducted by persons appointed by the Chief Justice. I would go further and suggest that the chairman of such a tribunal should be a qualified barrister or solicitor with a certain number of years' standing. In order to preserve the Minister's rights, I would be prepared to give such a chairman the benefit of expert assessors from his own Department. There is a good deal to be said for the point of view that, where a public inquiry is held which may have very dire consequences for particular officials or may involve the abolition of a local authority, the personnel of that inquiry should not suffer from the suspicion that they are the servants of a particular Department or Minister, and are thereby likely to be influenced by that Minister. The more open and independent inquiries of that kind are, the better it is both from the Ministerial point of view and from the public point of view.

I believe that the powers now sought by the Minister are unnecessary. After the holding of a local inquiry, if the Minister is satisfied that the duties are not being duly and effectually performed or that the local authority neglects or refuses to comply with any judgment, order or decree of a court, or refuses to allow its accounts to be submitted to audit, or that the members are not attending to their business, he may by order abolish that local authority. One would think that Section 44 of the Act of 1941 gave the Minister ample powers. In Section 47 of this Bill, the Minister is seeking to add to those powers, by the addition of a paragraph to the effect that, if a local authority refuses or wilfully neglects to comply with an express requirement imposed on it by or under any statutory enactment, the Minister may remove the members of that local authority. I suggest that where the members of a local authority refuse or wilfully neglect to perform their statutory duties, the Minister can compel them, by takingmandamus proceedings, to perform their functions. It would be better, to my mind, to have resort to the ordinary courts of the land to enforce the Minister's authority, rather than set up a tribunal of the kind envisaged by the Act of 1941 or this Bill.

These inquiries are subject to a certain amount of suspicion that the official holding the inquiry is a subordinate of the Minister, that he must have regard to his position in the Minister's Department and that, in case of a conflict of opinion between himself and the Minister, he has to be very wary as to what advice he may tender to the Minister or even as to what finding he may make as a result of a particular inquiry.

Deputy Byrne quoted, quite properly, from the Sankey Report on Ministerial powers as exercised in Great Britain. That commission went very fully into the whole question of inquiries and found that, where the inquiry involves a judicial or quasi-judicial decision, that decision should normally be entrusted to the ordinary courts of the land and, further, that their assignment by Parliament to a Minister or to a Ministerial tribunal should be regarded as an exceptional thing and should require justification in every case. They went on to say that, where Parliament found it necessary to depart from the normal course, it should entrust the judicial functions involved in the legislation to a Ministerial tribunal rather than to the Minister personally. Whilst they envisaged that the appointment of the personnel of the tribunal might be left to the Minister, they held that the tribunal should be independent of him in the exercise of its functions. They said, further, that in regard to the more important jurisdiction so set up, they thought the Lord Chancellor should be consulted before any appointments were made. So far as I understand it, Deputy Byrne's amendment appears to be on all fours with the recommendations of that very responsible body, which sat in England in 1932 to review the tendency to delegate legislation and Ministerial powers.

Undoubtedly, in all these matters where the Minister and the local authority are in conflict, it is idle to argue that the Minister has not some interest, that he is not impartial, and for that very reason natural justice would demand that the position as between the parties in such an inquiry should be at least equal, that every party before the tribunal should appear there on an equal footing, with equal rights. Now, rightly or wrongly, the impression is abroad, by reason of recent happenings at inquiries, that before an inquiry is even held under the auspices of the Department of Local Government, the dice is already loaded against the particular party before that tribunal. That may be an ill-founded impression, but it is nevertheless there.

I do not want to go into the duties of the inspector or the publication of his report—I have an amendment on that which I will raise at a later stage —but I say in all seriousness to the Minister, that it is high time we realised where we are drifting in these matters. The tendency of all legislation, as I have pointed out here before, is to get outside the courts, to get outside the law, as it were, to vest in the Minister such extraordinary powers as will make his decision in any particular matter final and conclusive, and to deny to any party the right to resort to the courts. I think that, from any point of view, and particularly from a legal point of view, is an intolerable position, a position this House should deprecate on every possible occasion. I think that where, as often may happen, matters of law are involved in these investigations, there should always be a right of appeal to the courts of the land and, furthermore, that this tendency to make Ministerial decisions final, to set up the Minister as the final arbiter in these matters, is to be deplored.

I do not want to say any more on the issue at this stage, but I think there is a good deal of merit in the amendment suggested by Deputy Byrne.

It is difficult to discuss this matter further without knowing whether the Minister is accepting this amendment or not. He probably is.

You may proceed on that assumption if you like; it would be just as logical as the amendment itself.

If he is not accepting it, he is being rather foolish. He indicates in the next section, which we cannot discuss at the moment, that he is inclined to run completely amuck, but before he runs amuck he might consider having some sort of curb or restriction placed upon his assumption of dictatorial powers.

This amendment is a reasonable one. The section which it seeks to amend is Section 44 of the Local Government Act of 1941. That section provides that if the Minister, after holding a local inquiry into the performance by a local authority of its duties, is satisfied that such duties are not being duly or effectively performed, he shall adopt a certain course. This amendment endeavours to ensure that the inquiry envisaged in that section of the 1941 Act shall be an impartial inquiry, not a prejudiced or biased inquiry, not an inquiry dominated, controlled and directed by the Minister. It sets out not only to ensure that the inquiry will be impartial, but that its findings will be published; that the report and the decision will not be shrouded in a cloak of secrecy.

When we consider the important position which the members of a local authority hold, the important functions which they have to perform, their standing in society, and the responsibility placed upon them, we must admit that it is wrong, criminally wrong, to have a local authority, its actions or inactions, inquired into by an unfair and biased tribunal, and to have that local authority abolished without proper investigation. If a county council, an urban council or any other local authority fails to discharge its duties, it should have no reason to fear a public inquiry. If the Minister believes a local authority is failing in its duties, he should have no reason to fear an impartial tribunal and he should have no reason to fear the decision of that tribunal being made public.

The type of tribunal envisaged in this Bill is one which will be selected by the Chief Justice, an absolutely impartial person, far removed from the administration, and approaching the problem with a judicial and impartial mind. The Chief Justice would select a tribunal which he would consider competent to try the issues involved. Why should the Minister refuse to accept this amendment? Why should he refuse to allow the highest judicial authority in the land to select a tribunal to decide an issue between himself and democratically elected local bodies? The Minister is not dealing now with subordinate officials; he is dealing with the elected representatives of the people, with persons who have a sense of dignity and self-respect, just as the people who elected them have a sense of dignity and self-respect.

If we allow a prejudiced and partial tribunal to try a local authority and, without justification, decide against that local authority, are we not establishing a position in which men anxious to do justice to those who elected them, to do justice to the views which they hold, may be discredited for all time in the eyes of the community—discredited by this partial and biased tribunal? The Minister has nothing to fear from this amendment or from the type of tribunal which it seeks to set up and he has nothing to fear from the full publication of the report and decision of the tribunal.

In supporting this amendment, I would like to direct attention to the Minister's amendment of Section 44 of the Act of 1941, where it is set out that where a local authority neglects to comply with an expressed requirement, he shall impose upon them under any statutory or other enactment certain penalties. I do not support this amendment of Deputy Byrne's, nor do I oppose the Minister's amendment, simply for the sake, as the saying goes, of being against the Government and the Department. I feel that there is too great a tendency lately on the part of the Department to be suspicious of public bodies. I do not think that is good for the country. As a member of a public body for a great number of years, I feel that there seems to be a very good spirit prevailing throughout the country. There were periods during the past few years, due to acute political differences, when possibly members of public bodies forgot that they were the elected representatives of the people, and thought it a good thing and a brave thing to go against the central authority. Happily, that time has disappeared.

I regret very much that the Minister should introduce this amending section, because I think there is no necessity for it. I believe that when councils have to meet expenditure, they will carry out their duties and endeavour, as far as is humanly possible, to meet the wishes of those who elected them. It is because I feel that elected representatives are disposed to do their duty that I believe it to be very unwise on the part of the Minister always to have the big stick hanging over them. There is no necessity for that. Is it that the Minister is really so suspicious that public bodies will not do their duty that he finds it necessary even to implement the powers he already has?

I am quite aware of the fact—and it is only right to say it—that before a council is dissolved the Minister generally gives notice, setting out certain facts and stating that there will be a local inquiry held. Judging by recent correspondence in the Press, that has not been satisfactory in connection with the dissolution of a certain body in the City of Dublin. The public were more or less in the dark as to who was right or who was wrong. If the findings of the inquiry were published immediately after the inspector came to a decision, possibly there would not be so much confusion or such difference of opinion expressed, both in public or in private, as on that occasion. I suppose it is with a view to preventing a repetition of that occurrence that Deputy Byrne introduced his amendment.

It is unfortunate that the amendment is necessary, or that the Minister considers an amendment of the Principal Act necessary, particularly in view of the fact that a majority of the elected representatives of the people are followers of the Government. One could read into the section that the Minister seems to have a certain lack of confidence even in his own supporters—that they will not do their duty. On the whole, if these powers are to be given to the Minister, and if an inquiry is to be held, I think that it should be as public as possible, and that the person who holds it should have the same powers as those exercised by a judge on the bench. As was pointed out, the Chief Justice is above all reproach or suspicion in regard to the appointment of a person to hold an inquiry. The public would have confidence in the findings of such inquiry. Above all, I regret that we should be discussing these things in 1946. I am not one who indulges in discussions about democracy, bureaucracy or "isms". I am speaking from practical experience of the manner in which members of public bodies in County Louth, who have acute political sympathies, have acted during the past few years. From what I know, all the members are anxious to carry out their duties conscientiously. As far as is humanly possible, they are carrying out the wishes of the central authorities. When that happy state of affairs exists it is unfortunate that the Minister should think it right and proper to increase the powers he already possesses by his proposal to insert an amended section in the Principal Act, and that Deputy Byrne should think it necessary, in the interests of justice and impartiality, to put down an amendment. If an inquiry is held the public at large will have full confidence in it, and when the result is published everybody will be satisfied that the public authority got a fair hearing and that the Minister was impartial in the manner in which it was set up.

Has the Minister any views on this matter?

I have, I suppose. Perhaps it might be as well if I expressed them. It might shorten the debate. I am sorry that some responsible members of the House have been induced to support this amendment, at least verbally, because I can only think they have done so far want of due consideration as to what it implies. The Deputy responsible justified it by long quotations from a committee which was set up by a British Lord Chancellor 12 years after the British writ was supposed to have ceased to run in Ireland. Perhaps, still with tender memories of the Crown, the colonies, and air-minded duchesses filling his mind, he urged on this House that what a member of the House of Lords thought good enough for Great Britain ought to be good enough for us.

I think the Deputy, if he had done any more than try to extemporise a case by reference to a report of Lord Donaghmore's Commission, might have told the House whether in fact the British themselves had seen fit to adopt these recommendations, whether they had proposed to bind their executive power with the shackles which the Deputy proposes to put on the Government of Irish people. We might then have had a case for this presented to us on a more factual basis. He could at least have satisfied us that what was proposed by Lord Donaghmore had been tried and had not been found detrimental to the efficacious exercise of the executive power. The Deputy and, I am sorry to say, Deputy Coogan, who followed and supported him, did not seem to think it was a matter of some moment that these proposals had not been adopted in Great Britain where the need of them might have been thought to be much greater than it is here because there is this distinction between our State and the British State, that our powers and our functions as a Parliament and as a Government derive from a more or less formal compact entered into with the people, that we exercise our functions as Ministers by virtue of the fundamental law of this State, a law which cannot be changed without reference to the people, a law which clearly defines the duties and powers and responsibilities of the Government, a law which, in Article 28, prescribes that the executive power of the State shall subject to the provisions of this Constitution, be exercised by or on the authority of the Government, a law which, in Section 4 of that Article, provides that the Government shall be responsible to Dáil Eireann. In Great Britain there is no such fundamental law that cannot be changed without the direct approval of the people. Any passing majority in the British House of Commons to-day can change the Constitution of Great Britain.

I presume, Sir, that anybody who chooses to follow on this amendment will be at liberty to discuss the Irish and British Constitutions on this amendment?

If he is in order.

Mr. Morrissey

I presume the same rule of order will hold for other Deputies as now holds for the Minister?

The Chair will deal with that as it arises.

Mr. Morrissey

The Minister is above the law.

I propose to show that this amendment will be inconsistent with and repugnant to——

——the Constitution?

Yes—Article 28 of the Constitution. Therefore that is why I said that I was sorry to see a Deputy who does show in this House a knowledge of law for which people might have a respect, committing himself to supporting this amendment because, as I said, I think he could only have done so from lack of consideration of what it implies. I was saying—and I hope, Sir, that Deputy Morrissey's itch to occupy your Chair will not compel him to rise again to points of order—that in Great Britain a passing majority in the House of Commons, provided that it follows the procedure laid down in a certain historic Act of Parliament, can change the whole Constitution of Great Britain, can give to the Executive of the day wide and far-reaching powers, which cannot be done in this State unless first of all the Oireachtas has passed a Constitution Amendment Bill and a referendum has been taken upon the proposals in that Bill and that, therefore, there was in Great Britain very much greater need to have an investigation of this sort and, perhaps, a very much greater need to tie the hands of the Executive.

We have had that investigation. An investigation took place 13 or 14 years ago, as Deputy Alfred Byrne perhaps gathered on that historic occasion when he was in Westminster and as he told the House here this evening. But let me remind the House again of what I said at the beginning: The recommendations of the Donaghmore Commission have not been adopted by the British Government, to whom they were addressed and for whom they were intended, or by the British people. Why should Deputy Byrne try to enforce upon the Government of this State recommendations of a British commission? Surely to goodness, we are able to conduct our own affairs here as an independent people in the light of what seems good to us. We do not want to be trapesing over to Great Britain to learn from them what they think is good enough for them and, because they like it, compel ourselves to swallow it. That is the sole justification which the proposer of this amendment submitted to the House in his speech.

I think the amendment is fantastic. I think it is grotesque. What is the present position? The Minister for Local Government, whoever he may be, is responsible to this House for the proper functioning of the local authorities in this State. It is his duty to ensure that these local authorities discharge the duties and fulfil the functions for which they were constituted. It is his duty to ensure that if Parliament prescribes that they shall do certain things that those things shall be done. That is his duty. It is not the duty of the local electors, though it is, of course, the duty of the local representatives, but if the local representatives fail in their duty, then he has the responsibility of dealing with the situation which is thereby created. That responsibility has been imposed on him by the statutes of this House. It is not something which he has arrogated to himself. It is a responsibility which he has carried for very many years since the establishment of this State and which was formerly the responsibility of the organisation which was then responsible for the proper administration of local affairs in this country. That is the position. In fulfilling his functions and discharging this primary responsibility, the one which justifies the very existence of this Ministry of State, the Minister is, of course, responsible to Parliament. The local authorities are responsible to him in the first instance for the discharge of their duty and he, in turn, is responsible to Parliament for seeing that the local authorities function as they were intended to function when they were constituted and carry out all those obligations and all those duties which have been imposed on them by Parliament.

I have pointed out that the Constitution places the executive power in the hands of the Government and that it does not place the executive power in the hands of the judiciary. Our Constitution is based upon the principle of the division of functions. We have in the State three principal categories of power: the law-making power which resides in this Assembly; the judicial power which resides in the Bench; and the executive power which resides in the Government. In the exercise of that executive power, the Government is responsible, under Article 28 of the Constitution, to Parliament. I do wish some Deputies would study their own Constitution instead of studying the reports of foreign commissions. They would be much better legislators if they did. I was saying that Article 28 of the Constitution says that the Government should be responsible to Dáil Eireann.

I have pointed out that the Minister has certain responsibilities and, subject to the doctrine of collective responsibility, has full and undivided responsibility, in the first instance, for ensuring that the work of the local authorities and the whole system of local government in this country will be properly carried on. He is the person who, under the Constitution, has to be satisfied as to whether the local authorities are operating with economy and efficiency. It is he who, if any local authority failed to operate in that way, would be accountable to this House if he failed to take steps to deal with that situation. That is the responsibility which every Deputy at one time or another has emphasised reposes on the Minister for Local Government. Take the Order Paper in any one week and you will see questions there addressed to the Minister for Local Government asking him if such-and-such a sewerage scheme has been provided, if such-and-such a housing scheme is being undertaken, and if there has been any failure to maintain the roads on the part of the local authorities.

The other night we had an attempt to force the hand of the Minister in relation to a matter of this sort by two Deputies. With all due respect to the Chair, I think it was a disgraceful attempt, because the Minister, naturally, would have to consider and always has to consider his actions in these matters very carefully. At any rate, there was one thing that the action of Deputies Davin and Flanagan ought to bring home to every member of the House and that is that, ultimately, before Parliament and the people the Minister for Local Government is responsible for the general administration of local affairs in this country. I know this is boring to Deputy Morrissey. I am very sorry that he is unable to follow it.

I was never more interested in anything you said.

Why have any local elections?

The Deputy perhaps lacks that apprehensive power which would enable him to apprehend what is likely to be involved in an amendment of this sort. I was saying that there is one thing that the action of certain Deputies in this House has made clear, and that is that, since the Minister has to carry public responsibility for the conduct of local authorities in relation to these matters which affect the inhabitants of the areas which they administer, it is the Minister who must be satisfied that, in fact, the local authorities are fulfilling those functions for which they were originally established and constituted.

What does this amendment propose? The amendment proposes a number of things, but I will get to what I think is the fundamental of it. This amendment proposes that the members of a local authority shall not be removed from office: (1) until the Minister has furnished a statement of his charges to the local authority; (2) until a public inquiry by a person or persons appointed by the Chief Justice has been held and its report furnished to the Minister, and the said report has been published by the Minister. Take the kernel of this whole business. The amendment proposes to give to the Chief Justice power to appoint a tribunal to decide and to determine matters at issue between the Minister and these organisations and bodies for which the Minister, under the Constitution, is responsible to Parliament.

Why not?

I hope I shall be able to show the Deputy why not.

An impartial judge.

There can be only one judge in this matter, so long as our Constitution remains unchanged, and that is the Minister in whom responsibility has been reposed by the Constitution. There cannot be any other. How would it be possible to reconcile a proposal that three outsiders, two outsiders or one outsider should be appointed by the Chief Justice—who has quite a different function under the Constitution from the Government—with the provisions of Article 28 of the Constitution? If you were to accept this amendment, and if, having accepted it, it could ever become valid law, you would take away at once the final responsibility of the Minister.

The Minister could no longer be responsible to Parliament because what would happen would be that the Minister would be, I assume, bound by the findings of these two or three outside persons, and he would have no responsibility whatever for the general administration of local government in this country. Yet the Minister, apparently, could not dissolve a defaulting local authority, no matter how criminally neglectful it might have been of its responsibility, unless he had the concurrence of some persons outside. In short, in relation to these matters the power of the Minister would be put into commission and the Minister who, under the Constitution is responsible to this House, would be responsible to this House, not for his own determination as to whether the administration of the local authority concerned was satisfactory or not but for the determination of three people who, as I have said before, would have no responsibility to Parliament. That position, I think, would be quite inconsistent with the provisions of our Constitution.

Apart altogether from that, the amendment is, in fact—let us face it— a vote of no confidence in the Minister for Local Government, a vote of no confidence in the Minister and in the Government, because the power which the Minister has exercised is not a new power. It is a power which was conferred, I think in 1923, confirmed in 1925, confirmed again by the Oireachtas in 1941. Since 1941 there have been at least two general elections. Prior to these general elections the present Minister for Local Government dissolved a number of local authorities in this country and we did not hear any outcry in the elections against him. On the contrary, I am proud to say he received the endorsement of his constituents at these two elections in a much greater measure than ever before, and the Party administration of which he is a member received a greater vote of confidence from the people than ever before. I think the House would be stultifying itself if, at the instance of the Member for Westminster——

The Minister should refer to the Deputy as the Deputy.

Cheap jibes.

I shall refer to the Deputy as Deputy Byrne. I shall not say any more about Deputy Byrne. I think the people know Deputy Byrne, and it is not necessary to say more.

And they know the Minister too.

They do, indeed. They know the Minister.

Mr. Morrissey

And they are going to know him better.

I hope so. It would be well for Deputy Morrissey that the people do not get to know him better.

It will not be your fault if they do not.

I was saying that at the last two general elections——

Is this relevant?

Yes, it is. At the last two general elections the people had before them several instances, fresh in their minds, of the manner in which this power had been exercised by the Minister for Local Government and I am glad to say that, with the facts before them, the Government was returned in 1943 and again in 1944. The powers of the Minister under the existing legislation have therefore stood the test of time and have received the endorsement of the people. I suggest to the House that haying, so recently as 1941, reaffirmed the provisions of the preceding Acts, and having entrusted this power to the Minister, the House should, as I have suggested, not stultify itself by accepting the amendment proposed by Deputy Byrne.

There were two sentences which the Minister uttered in the course of that long and very irrelevant speech with which I find myself in entire agreement. The Minister, invited by Deputy Coogan to address himself to the amendment, said: "Perhaps it is better I should not." Then he said: "Perhaps it would shorten the debate if I did not." The Minister has the consolation of knowing that he was right on both counts. I think Deputy Byrne is entitled to our thanks for moving this amendment, if it were only to give the Minister an opportunity of disclosing a little more publicly and a little more clearly, the mentality which some of us knew, and many people suspected, lies behind the whole administration of the Department of Local Government.

The Minister, as usual when he is given time enough, blurted it out: "I am the Minister for Local Government; I am local government. Nobody in this country, from the Chief Justice down, dare question anything I say or anything I do and if they do dare to question it, I shall shake the Constitution at them". Then of course when some of us had to smile, he tried a little heel-tapping. He tried to mend his hand immediately. The Minister went on to say: "In the ultimate, I am the person responsible for local government in this country. I am local government". That is what we were trying to show in the earlier part of the debate on this Bill. Certain sections are giving the Minister powers of life and death over local authorities.

The Minister thought it desirable to make some cheap jibes about the mover of the amendment. He thought it fit to tell the House the reason why his vote was increased at the recent General Election and he said he gloried in the fact that his vote was increased because he had abolished local authorities. I wonder if the loud speakers which were used in the Minister's constituency and in others, threatening blood and fire and bombs and thunder on the people of Dublin if they did not return a Fianna Fáil Government, had more to do with his getting extra votes and the Government getting extra votes.

I am afraid the Deputy is wandering from the amendment.

Mr. Morrissey

Surely, Sir? I protest most emphatically. With all respect, may I say that the Minister has been allowed to wander from the General Elections of 1943 and 1944 and the reason he got his votes, to giving us a lecture on the Irish Constitution and the British Constitution and on the powers, not only of the Government but of every Minister of the Government under the Constitution? I submit I am perfectly entitled to reply and perfectly in order, unless there is one rule of order for the Minister for Local Government and another rule of order for the other members of the House.

An Ceann Comhairle resumed the Chair.

Mr. Morrissey

The point I am dealing with at the moment is that the Minister for Local Government, strange as it may appear, on the amendment here moved by Deputy Byrne, in the course of his speech told us that the reason why the Government were returned at the 1943 and 1944 elections, and the reason why he himself was returned to this House with an increased vote, was that people endorsed his action in abolishing local authorities. I was proceeding to contest that and give what I consider to be the reasons, when the Leas-Cheann Comhairle told me he was afraid I was out of order. I am merely claiming from the Chair the same liberty in debate here as is given to the Minister and I am perfectly certain I will get that from the Chair.

Quite, but I would put this point to the Deputy. If a Minister used one sentence to that effect, would the Deputy take it he was justified in basing his intervention on that point only and on nothing else?

Mr. Morrissey

No, Sir.

A slight reference would not justify a lengthy reply going into a whole election.

Mr. Morrissey

This was not a slight reference. The Minister liked it so well that he rolled it over on his tongue and stated it a second, if not a third, time. He certainly gave it in full twice.

The Deputy is entitled to reply, but not at great length.

Mr. Morrissey

Even if it were desirable, it would be utterly impossible to follow the Minister into all the byways he travelled, from the Irish Constitution to the British Constitution, from Westminster to Leinster House. The Minister had a glorious time of it, having taken up all that time and having told us about his constitutional rights, his constitutional powers and his constitutional privileges and, incidentally, Sir, having told us that if we read more carefully our own Constitution we would be better legislators. On that point, I would suggest that the Minister should practise what be preaches, since if anybody is more in need of reading and understanding the Constitution, if it has that effect, than the Minister, I would like to know who he is in this House.

The Minister ignored the whole point. He talked all round it, he talked on everything under the sun, including the elections and the reasons why he was returned, and gloried in his abolition of local authorities. He told us nothing about the amendment or about the present position. The present position is that the Minister orders an inquiry and sends down his inspector, evidence is given and the inspector reports, but nobody but the Minister is allowed to see or to know what is contained in that report. Nobody but the Minister knows whether the report of the person who presided over the inquiry is favourable or unfavourable to the local authority. If his interpretation of inspectors' reports is as good as his interpretation of the Constitution in relation to this amendment—which, incidentally, he told us was repugnant to the Constitution—then I think that, in itself, makes a good case for Deputy Byrne's amendment.

If the Minister has no better case against the amendment than he sought to make here in the last 40 minutes, then he has no case at all. He certainly disclosed to the House that he considers himself a full-blooded dictator, so far as local government is concerned, that no person or body, from the Chief Justice down to the town commissioner, can have any view on local administration or on the interpretation of any Acts or Orders made by this House, that comes into conflict with the Minister's personal view on the matter.

The Minister talked about local authorities carrying out their functions. As I said on a previous section, I know of few local authorities which have refused to carry out the ordinary normal functions for which they were elected. It is only when an attempt is made to shove on to them some abnormal load never intended for them, it is only when an attempt is made—as has been made and as will be made to an increasing degree in the future—to make them shoulder financial responsibility which should and hitherto was borne by the central authority, that there is a dispute with local authorities. We see such attempts being made every day and, of course, by virtue of the Minister's power, they are made successfully, to put upon local authorities burdens they were never meant to carry. If only for that reason, it is necessary to see that local inquiries are held in the open, that everything transpiring at or arising out of an inquiry shall be clear and above board and that the findings, or charges, so to speak, of the inspector to the Minister will be open to those who are charged as well as to the Minister himself. That is really what the amendment is seeking, and that is the aspect of the situation to which the Minister did not address himself.

I suggest to the House again that this cannot be taken by itself, but must be taken in conjunction with all the other sections and amendments we have been discussing in the five or six days' debate we have had on this Bill. So long as the Minister chooses to ignore the sections and amendments put before the House, and talks about things which have no relation in the world to them, so long will this be not only a long discussion but an unsatisfactory discussion, from the point of view of the future of local government, as well as being a waste of the time of this House.

What the Minister's speech has clearly revealed is that he completely misunderstands his functions as a Minister, and the functions of local authorities. Local authorities are elected by the people of their counties or urban areas. They have certain statutory powers, and those powers are defined. If a local authority fails deliberately to carry out its statutory obligations, there is another way of dealing with it besides giving the Minister absolute power to dissolve that local authority. Surely, a local authority, being a democratically elected body, should have the right of an impartial trial as to whether it has or has not failed to carry out its statutory functions? But there is no impartial trial at the moment. The late Mr. E.T. Keane, of Kilkenny, once gave a local authority, addressing the Minister, as using the words of one of the gladiators of ancient Rome: "We, who are about to die, salute you." That represents the minds of the members of any local authority when this Minister proposes to have a sworn inquiry into its activities: "We, who are about to die, salute you."

This amendment seeks to ensure that the local authorities will get justice and fair play. But the Minister says they are not entitled to justice or fair play; they are responsible to the Minister and to the Minister alone. He seems to forget that local authorities are elected by the people and have some responsibility to the people who elected them. If local authorities are responsible to the Minister alone, surely there is no need for local elections? Surely, the Minister should appoint the representatives on the local authorities and then regard them as appointees, just as he did with the Most Rev. Dr. Dignan, formerly chairman of the National Health Insurance Society.

That does not arise.

I am arguing a point which follows logically upon the philosophy expounded by the Minister, that local authorities elected by the people are responsible to the Minister alone. I am a member of a local authority and I hold I have a definite responsibility to the people who elected me. Again, the Minister says that there is only one judge as to whether local authorities are discharging their functions or not, and that judge is the Minister. I consider that a local authority has a right to appeal to the judgment of the people who elected it. If the Minister feels that a local authority is exceeding its statutory duties or is not carrying out its duties properly, he should not have the same power over that locally elected body as he has over the officials of his Department. No one will dispute the Minister's right to dispense with the services of one of the officers of his Department or to direct him to do whatever he thinks fit. No one will dispute that responsibility and that power, but I think this House must dispute the right of the Minister to deal with locally elected bodies as he deals with ordinary officials of his Department. He is seeking deliberately, not only in this Bill but in other legislation, to relegate locally-elected representatives to the position of junior officials of his Department, and that cannot be tolerated.

To show how illogical the position is, the Minister mentioned that he is frequently questioned here in regard to the functions of local authorities, whether or not they have carried out their duties; but the Minister should not only have referred to the questions but to the answers, and he should bear in mind that he, as Minister, has frequently stated in this House that the questions which have been raised should be directed to the local authorities and not to him. The local authorities should have certain discretionary powers. I believe they have certain powers of discretion which are outside the control of the Minister. It is only when they violate their statutory duties and obligations that action should be taken and I hold, and I think the majority of Deputies will hold, that when the Minister has reason to believe that a local authority is failing to carry out its statutory duties, he should refer the matter to some tribunal outside his control.

We have to consider in this amendment whether we will regard locally elected representatives as people with some sense of responsibility and dignity. If we are to accept the view that, because the Minister is responsible for local government, county councils and county councillors have no responsibility whatever except to obey the Minister, to carry out his instructions in all things, then we ought to dispense with local elections; we ought not to proceed further with the farce of electing representatives on our local authorities. I believe the mentality of the Minister and the power which he is seeking under this and other legislation are having a very bad and injurious effect on local government.

We are not discussing this and other legislation at present; we are discussing an amendment.

This amendment sets out to project, to some extent, local authorities from the Minister, from this tyrannical dictator who regards local councils as junior servants of his Department. I hold that the amendment is necessary because some protection for local authorities is overdue. Eventually, if this protection is not afforded, we shall have on local authorities not independent men, not men of dignity and self-respect, but men who will simply crawl on to local authorities to be the slaves and servants of the local officials, men who will cringe and fawn at the feet of the local officials to get favours from them in order, by getting these favours, that they may secure election. That is the effect of the Minister's administration and it is the thing we are seeking to remove by this amendment. I think the House ought to have some regard for the rights, the authority as well as the dignity of local bodies and local administration. In seeking to divert attention from this amendment the Minister referred to the election successes of his Party. We are entitled to ask if these election successes were an endorsement of his policy of abolition in regard to local government? Were they not achieved by threatening the electors with the American Army, and holding out the plea that the Minister and his Government had saved this country from an invasion by the American Army when the American Note was presented to our Government?

I have heard Ministers and Deputies refer during this debate to the terms "local government" and "local authority". I consider that there has been no such thing for several years as local government, except by the authority of the Minister. Local government has ceased to exist. A few days ago I put a question to the Minister during the debate on this Bill and he replied that I was the first Deputy who stated that the Minister already had the power that he wanted, but in order to remove all doubts he was now taking the last item of authority from local authorities. The Minister agreed with that.

No. The Deputy stated that I already have the power to dissolve a local authority after a sworn inquiry, and I affirmed that he was right.

The Minister agreed that I was right. I argue that every vestige of authority has been taken gradually from local bodies.

Does the Deputy want the same argument and discussion on this amendment?

No, I am on a different question. I am trying to argue on the lines on which the Minister argued before you, Sir, were in the Chair, about the fundamental rights of local bodies. I do not intend to argue what the fundamental rights of Ministers in Great Britain are. I wish to say a few words about the fundamental rights of Ministers in this country. I stated that all rights of local bodies had passed away, but that there was a misconceived idea in the minds of some people that they still had certain rights, to one of which the Minister had alluded— financial rights. I said that impression had been removed beyond any doubt before the Minister's amendment was introduced and that this Bill did not need such an amendment. The Minister agreed that he had the right already. In his own words, he has eliminated every possible power in local government. I pay Deputy Corry the compliment of saying that he was the only Deputy who pointed that out. I think that Deputy Corry agreed with me that the term "local government" was non-existent. I was glad to see that one Deputy agreed with me that the term is a misnomer, and that it was ridiculous to refer to it as "local government".

The Deputy is repeating the debate.

I ask the Minister to answer now. He refused to answer on a previous occasion. Will he give his conception of what the fundamental aims of local government are?

He cannot do so now.

I believe he could.

He will not be allowed by me.

The Minister has a happy knack of talking round a question. He can even wander to Westminster. It would be rather difficult to prevail on the Minister when he comes to reply to keep as close to order as I am kept.

That is for me. I have not heard the Deputy yet on this amendment.

The Minister stated that the section referred to local bodies that did not perform the functions for which they were constituted. I want to know what functions local bodies were constituted for. The House will then be able to make up its mind. I want the Minister to name one or two of the functions for which local bodies were constituted.

That does not arise. The whole function of local government may not be discussed on this amendment by the Deputy or the Minister.

The Minister argued further from the amendment than I have done. I leave it for Deputies to judge.

It is for me to judge that.

If the Deputy has anything to say about the amendment let us hear him.

The arguments generally were that local bodies, to put it mildly—perhaps this would appeal more to the chair—have very little power. To my mind, none is left them. Even if there is a shadow of doubt we ought to preserve it. Deputy Byrne is trying to preserve the rights local government bodies still have. I do not think they have any. Nevertheless, I am prepared to add my voice to that of Deputy Byrne's in order to preserve such powers. The Minister stated that local bodies have in the last resort an inquiry before being dissolved. I believe he can dissolve them. The belief is there that they have some little chance of existing under some formal name, and that the Minister in certain circumstances, if they do not do what he wants, is to hold an inquiry. The Minister went to great lengths to convince the House that he was primarily and solely responsible for the carrying on of local government, and that he was going to see that they performed the functions for which they were appointed. If they did not do so he would see that they did so, and that one of the ways was to hold a local inquiry. It would be held by his own nominee and, as Deputy Morrissey stated, without publication of the findings. The Minister stated that that was the proper form of inquiry. He repeated again that he was absolutely responsible and that he was going to see that his responsibility was upheld. In other words, that he would see, whatever inquiry was held, that it gave a decision with which he agreed. Deputy Byrne tried to retain some right of appeal by local bodies, in which they would have some confidence, such as an inquiry held by a person appointed perhaps by the Chief Justice. The Minister argued that the Chief Justice was not a fit person to nominate anybody for such an inquiry, and that a nominee appointed by him should appeal to the House. I suggest that the appointment of a nominee by the Chief Justice would have the confidence of most Deputies. I cannot see what objection the Minister has to the amendment except the argument that, whatever anybody says, the Minister is convinced that he is going to be the sole arbiter when it comes to making a final decision. To my mind, the amendment is useless because I am quite convinced that local government, as we know it, is ended. It is only a farce to be arguing about the terms "local government" or "local authority", because there are no such things.

I had no idea when I rose to support Deputy Byrne's amendment that we were going to have such a long discussion about it but I am afraid that is inevitable now. To my mind, the Minister's reply to the arguments put forward in favour of the amendment is no answer at all. He treated us first to a dissertation on constitutional law and he emphasised the separation of powers under our Constitution. He forgot to inform the House that the object of separating the judicial, legislative and executive power under our Constitution was to preserve a system of checks and balances as between these powers, to prevent the Executive encroaching upon either the legislative or judicial power and, of course, to put the judicial power in its proper place. Nobody is questioning that. Nobody is questioning the right of the Minister to decide issues of this kind. Nobody is questioning the right of the Minister to come to a decision, even a decision that is not in accordance with the findings of the tribunal. I do not question that. I do not question the Minister's ultimate responsibility in all these matters. All I am challenging— and I am sure all Deputy Byrne seeks to challenge—in this amendment is the manner in which the Minister seeks to inform himself of the facts—an entirely different proposition from challenging the right of the Minister as the Executive Minister responsible to this House for any decision he may reach on these facts.

The position I take up is this: Because of recent legislation in local government, particularly the 1941 Act, we are getting to a position in which local authorities have no functions whatever. Boiled down, in law, as Deputy Bennett sought to find out a moment ago, a local authority to-day has 22 functions left to it. Eight of these are under town planning, the rest are trivial functions such as conferring the freedom of the borough on some distinguished stranger, and a few unimportant things like that. The most important, the sole function to my mind, that a local authority has to-day is to strike the rate and once it strikes the rate the local authority is functus officio. The detailed administration and expenditure of that money is handed over to the manager and his staff and you get the position, therefore, that all executive functions are vested in the manager and a few trivial reserved functions are vested in the local authority. Why, therefore, seeing that the powers of the local authority are trimmed to such an extent, does the Minister seek further powers? I fail to see a case for the Minister's amendment of Section 44 of the 1941 Act.

We are not discussing it.

We are discussing an amendment to the section.

Of course it relates to it, but the section is not under discussion.

I thought I might cut it short because it would be pertinent to the section.

Quite. If all those who have spoken did the same, it might be satisfactory, but I have no guarantee to that effect.

If I am not in order, I will raise it on the section. I want to get back to the Minister's argument. He set out by telling us that this amendment of Deputy Byrne's was to his mind unconstitutional and he proceeded there and then to set himself up as the Supreme Court of this country and told us how it was unconstitutional but, to my mind, in the course of his entire speech, he never related his argument to the amendment. The amendment simply asks that, before the Minister comes to a decision as to the removal of a local authority, certain things shall be done —(1), that a statement of the charges shall be made to the local authority, (2), that a public inquiry shall be set up and that inquiry should be conducted by a person or persons appointed by the Chief Justice—there is nothing novel in that; that is the normal procedure in other Departments—and the third is that the report furnished to the Minister should be published.

Will the Deputy give an instance of that procedure being used in other Departments?

I cannot recall at the moment but I do know that the Chief Justice in certain cases does set up a panel of barristers who may be appointed as assessors or that kind of thing.

You mean a committee of reference for the purpose of arbitration?

Yes. The Minister gave his whole case away when he said he could not accept this at all because he could not put himself in the position of being bound by the findings of what he described as "outsiders". We got the whole kernel there—"outsiders". But what position are you in at the moment? Are not you deciding the whole matter to-day by insiders? To my mind, speaking broadly, from the public point of view, I would prefer that the decision should come from a rank outsider rather than from a subordinate insider.

The Deputy is making an interesting point but he is labouring under a complete misapprehension. The person who makes the findings, who studies the evidence, is the Minister—no insider but the Minister. The Minister is not an insider——

He is an outsider.

The Minister is not an insider except to the extent that he is a member of this House. It is the Minister who makes the findings.

I am coming to that. As Deputy Morrissey has pointed out, the present position is that an official of the Department of Local Government and Public Health is appointed or selected by the Minister to hold an inquiry, that inquiry is held in due course and the report of the inspector is furnished to the Minister and is treated as a confidential document, and on that report, presumably, or, presumably not——

On the evidence.

On the evidence or on the report——

No, on the evidence.

——the Minister comes to a decision.

On the evidence.

I do not want to put the Minister in the position that he should be bound by the findings of any tribunal, whether it is held by an outsider or by an insider. The final decision is his and it is conceivable that there could be cases where even the Minister could not accept the findings, even on the evidence, of the inspector or any tribunal for reasons of public policy or for any other reasons. There could conceivably be cases where that could happen. I do not want to bind the Minister to that extent at all. All I want to get is this, that the Minister would, in satisfying himself as to the facts, adopt a procedure which is from a legal point of view fairest to all parties, and I think that procedure is one which would ensure that any investigation would be conducted entirely by an independent investigator. But, I will qualify it, as I have said already, that in certain cases it would be essential that that independent investigator should have the assistance of officials or assessors——shall we call them—from the Minister's Department. I do not see that there is anything contrary to principle or public policy in that, and if a system of that kind were evolved it would be the fairest system of all. The Minister's decision is his decision. He has the personal responsibility to the House, and the Government have the collective responsibility for his decision. We are not questioning that. All we are challenging in this is the method by which the Minister enables himself to come to that decision, and we are suggesting to him that the fairest way is some form of public inquiry which would be conducted by impartial investigators, fully qualified in law or in technical matters, if it is a technical inquiry, and, then, that when that inspector makes his report, the report will be published.

I am not asking the Minister to accept the report. But I would go so far as to suggest that, when he gives his decision, whether it is in accordance with the findings of the tribunal or the inspector, or whether it is not in accordance with the findings, his decision on the report should be published. In a case where his decision is not in accordance with the findings of the tribunal or the inspector, he will, I am sure, be able to give very solid reasons why he saw fit to depart from those findings. In other words, I am advocating that the most open methods should be adopted in investigating matters of this kind. After all, the duties of a public body do not involve any great matters of confidence. As I have said, they have certain limited statutory functions to perform to-day. Very few of them amount to anything, except the one they exercise annually of striking the rate. What is there to be afraid of in a matter of that kind in making the matter as public and as open as possible? On the other hand, it may be a matter affecting a responsible official or a subordinate official. Again, I see no reason, unless matters of public policy dictate otherwise, why all matters connected with that investigation should not be as open as possible, as open as the hearings and the findings of a court of justice are to-day.

The Minister may say that the inspector's report is a confidential document, and that, to a certain extent, he would be exposing the particular inspector who conducted the investigation if he were to publish his report. That cuts both ways. There are cases where it might be hard on the particular individual if his report were published. There are other cases where it would be entirely in favour of the particular inspector if his report were published. In the case where it might be undesirable to publish the report, where he might leave himself open, perhaps, to an action at law, the Minister should have sufficient power in his Department to protect that individual against the consequences of any legal action which might arise.

I do not want to go much further on the matter except to say that the whole tendency is to treat local authorities as if they were recalcitrant and, if not recalcitrant, as if they were criminally inclined or evilly disposed towards the Minister, or people not fully conscious of their public duties. I think it would be a far better system if the public authorities were left to the electorate. There is an election every three years and, if public authorities are failing in their functions, the electors will quickly deal with that matter.

We had all that on amendment No. 31A.

We had the Minister on the 1943 and 1944 elections.

No, Sir. I must protest. There is some limit to the extent to which misrepresentation can go in this Dáil. I said that a Local Government Act was passed in 1941 and that the action of the Government and the Oireachtas in passing that Act had been endorsed at two general elections. That is the extent to which I went.

The 1944 election certainly was not fought on the Local Government Act of 1941. I do not think the 1943 election was fought on it either. I do not want to go into these extraneous matters. I want to get back to the Minister's argument. His argument is that this amendment is unconstitutional. I am trying to explain that it is not unconstitutional, that all it seeks to do is to give the Minister an independent way of ascertaining the facts in any given case he may wish inquired into. The Minister says that he cannot accept that, because that would be handing himself over to outsiders. I say that it is far worse if he places himself in the hands of insiders, because the local authority and the public are in the position that they feel the matter has been prejudged, that a subordinate of the Minister's is specially selected for the job, that perhaps the man most likely to coincide with the Minister's views on a particular problem will be selected. There is that suspicion abroad and it would remove all that atmosphere of doubt and suspicion if the Minister would take upon himself to appoint properly qualified people to conduct inquiries.

As I have said, I would condition that by allowing, say, the chairman of the tribunal to have officials of the Minister's Department to act as assessors. But I cannot see where the unconstitutionality lies in seeking to do that. We are not challenging the Minister's right to give his decision. I am not challenging his right to give a decision in conflict with the findings of the tribunal. I think he is perfectly entitled to do that, if he so thinks fit.

In view of the Minister's interjection a moment ago, I should like to ascertain whether, in fact, it is correct to state that his decision following a local inquiry is solely based on the evidence and not influenced in any way by the inspector's report.

I am not going to answer that in that restricted and categorical fashion. I said it was based on the evidence and that the evidence at the inquiry is the foundation of the whole procedure. There can be only one foundation.

Then the inspector's report is not taken cognisance of at all?

This amendment is a very fair one. Does the Minister want to scrap and take away any power left to local authorities? The majority of Deputies are members of a county council or urban council. The Minister told us here when the local elections were coming on that local authorities had certain powers. He went to the country on that, and the people elected the local authorities. As Deputy Coogan has said, the only power a local authority has is in connection with the striking of the rate. After that, they have no power. The county manager exercises executive functions. If the Minister wants to take away all the powers of local authorities, would it not be better and be a saving to the ratepayers for him to dissolve every county council and every urban council?

Will the Deputy tell us about the amendment?

I am telling you.

The Chair and the House want to hear about the amendment.

If the Minister takes any more power from the local authorities, it would be better to scrap every council, because the members of local authorities are only stool pigeons.

The Deputy must speak to the amendment.

I am speaking to the amendment.

Did the Deputy read the amendment?

I did. Does not the Minister want to take away any powers we have?

This amendment has been tabled by Deputy Byrne and not by the Minister.

It is to that I am speaking Will the Minister say how many inquiries he has held that the public never knew anything about?

Amendment put.
The Committee divided: Tá, 28; Níl, 57.

  • Anthony, Richard S.
  • Beirne, John.
  • Blowick, Joseph.
  • Byrne, Alfred.
  • Coburn, James.
  • Cogan, Patrick.
  • Commons, Bernard.
  • Coogan, Eamonn.
  • Corish, Brendan.
  • Costello, John A.
  • Dockrell, Henry M.
  • Dockrell, Maurice E.
  • Donnellan, Michael.
  • Finucane, Patrick.
  • Flanagan, Oliver J.
  • Giles, Patrick.
  • Heskin, Denis.
  • Keyes, Michael.
  • Mongan, Joseph W.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • Norton, William.
  • O'Donnell, William F.
  • O'Higgins, Thomas F.
  • O'Leary, John.
  • O'Reilly, Thomas.
  • O'Sullivan, Martin
  • Rogers, Patrick J.

Níl

  • Aiken, Frank.
  • Allen, Denis.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Blaney, Neal.
  • Bourke, Dan.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Brennan, Thomas.
  • Briscoe, Robert.
  • Buckley, Seán.
  • Burke, Patrick (Co. Dublin).
  • Butler, Bernard.
  • Carter, Thomas.
  • Childers, Erskine H.
  • Colbert, Michael.
  • Colley, Harry.
  • Crowley, Honor Mary.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • De Valera, Vivion.
  • Flynn, Stephen.
  • Fogarty, Patrick J.
  • Furlong, Walter.
  • Gorry, Patrick J.
  • Harris, Thomas.
  • Healy, John B.
  • Hillard, Michael.
  • Humphreys, Francis.
  • Kilroy, James.
  • Kissane, Eamon.
  • Loughman, Frank.
  • Lydon, Michael F.
  • Lynch, James B.
  • McCann, John.
  • McCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Moran, Michael.
  • Moylan, Seán.
  • O Briain, Donnchadh.
  • O'Connor, John S.
  • O'Grady, Seán.
  • O'Loghlen, Peter J.
  • O'Rourke, Daniel.
  • Rice, Bridget M.
  • Ruttledge, Patrick J.
  • Ryan, James.
  • Ryan, Mary B.
  • Ryan, Robert.
  • Shanahan, Patric.
  • Sheridan, Michae
  • Smith, Patrick.
  • Traynor, Oscar.
  • Ua Donnchadha, Dómhnall.
  • Walsh, Richard.
  • Ward, Conn.
Tellers:—Tá: Deputies Byrne and Cogan; Níl: Deputies Kissane and Ó Briain.
Amendment declared lost
Progress reported, Committee to sit again to-morrow.