Local Government Bill, 1945—From the Seanad (Resumed—Amendment No. 6).

Debate resumed on the motion that the Committee agree with the Seanad in the following amendment:—
In page 18, Section 38, sub-section (1), line 36, the words "cannot or" inserted before the word "should".

This amendment has already been discussed but the debate was not concluded on the last day.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 7:—

In page 18, Section 38, after sub-section (1) a new sub-section as follows inserted:—

(2) An Order under sub-section (1) of this section shall not remain in force for a longer period than six months but may be replaced by further Order or Orders if the appropriate Minister is satisfied that the special circumstances continue to exist.

I think the purpose of the amendment is self-evident on the face of it. It is to provide that where a deputy may be appointed, he may not be authorised to perform the duties for more than six months even though the special circumstances which justified the appointment of a Deputy originally may continue to exist. The Minister may, however, make a further Order or Orders which will expire at the end of six months.

Will these Orders be placed on the Table of the House?

They will not but the House can ask for information in the usual way by Parliamentary Question.

Mr. Morrissey

It may not always get it.

Oh, yes, it will.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 8:—

In page 18, Section 38, sub-section (5), lines 55 and 56, the words "statutory or other enactment" deleted and the words "enactment or Order" substituted.

This, like amendment No. 1, is merely a verbal amendment.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 9:—

In page 19, Section 39, lines 1 to 5, deleted and the following section substituted:—

(1) If the Minister is of opinion that on account of the nature or extent of the duties of an office it is inexpedient that the holder of such office should engage in any other gainful occupation without the permission of the local authority by which appointments to such office are made and the consent of the Minister, the Minister may give a direction to that effect and such direction shall have effect according to the terms thereof.

(2) The Minister may revoke any direction given under sub-section (1) of this section.

Although the House accepted the section as it originally stood, there was a fear that it might be interpreted in such a way as to interfere with the position of existing office holders and a fear also that it might perhaps be unreasonably interpreted by the Minister. The House will remember that it gave power to the Minister to make regulations requiring holders to devote the whole of their time to the duties of their offices. This amendment was inserted in the Seanad to meet certain objections which had been raised here, rather tentatively, and there, more strongly, in relation to this matter. It now provides that—

"if the Minister is of opinion that on account of the nature or extent of the duties of an office it is inexpedient that the holder of such office should engage in any other gainful occupation without the permission of the local authority by which appointments to such office are made and with the consent of the Minister, the Minister may give a direction to that effect and such direction shall have effect according to the terms thereof."

It is merely intended to ensure that no person can fill two offices at the same time, particularly if they are full-time offices.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 10:—

Before Section 40, the following new section inserted:—

Section 21 of the Act of 1941 is hereby amended by the addition at the end of the section of the following sub-section:—

(11) Where the appropriate Minister declares under this section qualifications for a specified office in relation to which he is the appropriate Minister, no additional qualifications for that office shall be fixed by the relevant local authority without the consent of the appropriate Minister.

This is a new section which was inserted in the Seanad in order to ensure that once the qualifications for the office have been declared by the Minister they will not be added to in such a way as to perhaps defeat the original purpose which it was sought to secure when the qualifications were originally declared.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 11:—

Section 44: At the end of the section the following new sub-section inserted:—

(5) A harbour authority, within the meaning of the Harbours Act, 1946 (No. 9 of 1946) shall be deemed, for the purposes of this section, to be a road authority.

This amendment will enable a harbour authority to join with the road authorities in establishing a joint committee to consider proposals where an application for a bridge Order may be made by anyone of such harbour authority and to facilitate obtaining the agreement of every party concerned to the making of such an application.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 12:—

Section 55: In sub-section (1), paragraph (a), page 25, line 18, the figures and word "57 and 59" deleted and the figures and word "57, 59 and 60" substituted.

This amendment, as will be seen, proposes to include Section 60 with Sections 57 and 59 as sections to be excepted from the operation of Section 55. Section 60, which it is proposed to except in addition, relates to borrowing by a road authority for bridge construction.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 13:—

In page 27, Section 63, lines 12 and 13, the words "statutory or other enactments" deleted and the words "enactment or Order" substituted.

No. 13 is the same as No. 1 and No. 8.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 14:—

In page 27, before Section 66, line 26, the following new section inserted:—

(1) In this section—

the expression "the principal section" means Section 80 of the Act of 1941;

the expression "the official resi— dence" means, in relation to a member of a local authority, his official residence for the purposes of the principal section.

(2) A local authority to which the principal section applies may by resolution decide that, in lieu of defraying the expenses of locomotion actually incurred by each of their members in travelling to and from the meetings of such local authority, such local authority shall pay to each such member, in respect of every meeting of such local authority which he attends at a place not less than five miles by any route from his official residence, a fixed sum for every mile between such place and such official residence measured along the route by which such member would normally travel.

(3) A resolution passed by a local authority under sub-section (2) of this section may be revoked at any time by another resolution of such local authority.

(4) A resolution under sub-section (2) or sub-section (3) of this section shall not take effect until sanctioned by the Minister.

(5) The passing by a local authority of a resolution under sub-section (2) or sub-section (3) of this section shall be a reserved function.

(6) While a resolution passed by a local authority to which the principal section applies under sub-section (2) of this section is in force such local authority shall not defray under sub-section (3) of the principal section the expenses of locomotion actually incurred by each of their members in travelling to and from meetings of such local authority but, in lieu thereof, shall make payments to members attending such meetings in accordance with the terms of such resolution.

(7) Where a member of a local authority attends a meeting of such local authority at a place not less than five miles by any route from his official residence and is obliged by reason of such attendance to remain away from his home for a continuous period of not less than three hours, the local authority shall, in addition to defraying under the principal section the expenses of locomotion incurred by such member in travelling to and from such meeting or making to such member the payment required by a resolution under sub-section (2) of this section (as the case may be), pay to such member an allowance in respect of such period calculated in accordance with the prescribed rules.

(8) The rules made by the Minister for the purposes of sub-section (7) of this section shall make provision for preventing allowances being paid to a member of more than one local authority, by more than one local authority in respect of the same period.

This section is intended to amend Section 80 of the Act of 1941 which allows travelling expenses to be paid to county councillors and members of certain other local authorities. Section 80 of the Principal Act authorises a refund of the expenses of locomotion incurred in travelling to a meeting held at a place not less than five miles from a member's residence. This new section will allow a fixed mileage allowance to be paid instead of actual expenses and it also provides, as can be seen, for the payment of subsistence allowance for members who have to travel not less than five miles from their homes to their meetings and are away from their homes or place of business for not less than three hours. The first of these provisions is to meet the desire which some county councils have expressed to revert to the former method of contribution to travelling expenses in the form of mileage rates. Such rates may be more economical in certain circumstances, say, where members, instead of having to arrange each for his own conveyance, may join together in hiring a single conveyance. I have agreed to make that amendment. As I have already explained under sub-sections (7) and (8) of the section it will be permissible to pay subsistence allowance in accordance with the rules which the Minister is empowered to make.

Arising out of the Minister's statement, I would like to point out that this system has caused great confusion in the county councils. The previous arrangement was cheaper on the ratepayers. These members live out in isolated parts of the country; some of them are not near a bus or train and they have to hire a car to come to a meeting. The old arrangement of 6d. a mile was cheaper on the ratepayers. I understand that this system will cost nearly £1,000 extra if it is operated. Very few people have their own cars. A person who has to travel less than five miles on a bicycle gets 1½d. a mile. I do not think any member of the county council is going to lose time cycling less than five miles. Deputy Allen, the chairman of the Wexford County Council, is here now and he knows what the position is on the Wexford County Council.

This section amends the position which existed. It makes the matter right.

This is an amendment.

We are going back to the old arrangement.

Are we going back to the old arrangement?

Yes, if you want to go back.

On sub-section (7), the amendment is to be welcomed and will be welcomed by many local authorities, but I am a little bit worried about the subsistence allowance where members are out for three hours. That is desirable in itself, but the Minister must now take his mind off the city and imagine himself in the country with five miles of a country road and a man coming in on a bicycle; that man could do with a cup of tea just as well as the man who travels 20 miles. If he comes 4¾ miles he will not be allowed anything by way of subsistence. The Minister must get his mind off the 2d. tram in the city, and the men who can get home to their lunch by means of the 2d. tram. I would ask the Minister to amend that now if he has power to do so. I think it would be a pity to spoil a good day's work.

It is a difficult matter and there is something to be said for the minimum distance which we prescribe; this distance of five miles applies also to the travelling allowance and if I were to decrease the minimum distance in the case of the subsistence allowance I should probably be called upon to decrease also the distance in respect of the travelling allowance.

Cut out the five miles altogether.

That is a fundamental condition. After all, we have endeavoured to meet what was perhaps a case of genuine hardship and I am not so satisfied that if a man lives within five miles of the place of meeting he cannot get home and get his meal in the ordinary way.

Not if he has to drive five miles in a horse and cart.

They are only statute miles.

As has been pointed out by Deputy O'Leary, many members combine to take a hackney car or some type of hired conveyance. I do not know that I can do this. I am anxious, if I can, to make it easier for members of local authorities to discharge their duties, but I cannot be pushed too far.

Is there anything wrong in whether they have to travel one, three, or four miles?

There would be. It would be preposterous for a member of the Wexford County Council, living in the town of Wexford, to be able to get a meal at the expense of the ratepayers. There was implied originally in membership of these local authorities the idea of personal sacrifice in order to render public service.

That may have been so 40 years ago.

That is so; but people are very glad to be privileged to represent their neighbours on local authorities. While I should like to do this as it does not appear to be very great, I certainly would not agree that it would be proper that people who can quite easily and conveniently secure refreshments after the proceedings of a meeting should be entitled to do that at the expense of the ratepayers. That was a fundamental principle underlying our local government law, and I do not want to depart from that principle in any very significant way, in such a way as would perhaps overthrow altogether what is an essential element in it.

Change five miles to three miles.

Very well.

If I take my car to a meeting of the Mayo County Council I get something like £1 for the journey, but, if I employ a hackney car, they are willing to pay me £3 for the same journey. If I were allowed 30/- for the use of my own car, I could defray the expenses incurred, but I cannot do it with £1. That I suggest would mean a saving of 30/- to the ratepayers.

You can get it under this section, as amended.

There is no provision made for a working man who goes to a meeting to represent the working classes, say, an agricultural labourer.

That is a completely new principle and I will not accept it.

Is this being amended?

Yes, by inserting three miles instead of five miles.

Then it must go back to the Seanad.

And must come back here again.

A person living 2½ miles away will have a big grievance.

The amendment is in line 2 of sub-section (7). It is not being changed in sub-section (2). If there is to be any further pressure, I shall have to ask the House to stand by the Seanad's amendment.

Seanad amendment, as amended, agreed to.

I move: That the Committee agree with the Seanad in amendment No. 15:—

Section 66: At the end of the section a new sub-section as follows added:—

(8) If, on an application to the High Court under Section 12 of the Local Government (Ireland) Act, 1871, by a person aggrieved by a surcharge made under the said Section 12 or a charge made under Section 20 of the Local Government (Ireland) Act, 1902, the High Court confirms the surcharge or charge, such person may apply to the Minister within the prescribed time to remit the surcharge or charge, and if on such application the Minister is of opinion that the circumstances of the case make it fair and equitable that the surcharge or charge should be remitted, he may direct that the same shall be remitted upon payment of the costs incurred by the auditor or other competent authority in resisting such application and otherwise enforcing the surcharge or charge.

This is a new sub-section inserted to meet a point raised and argued with some force in the Seanad. As the position stands at present, if a person aggrieved by a surcharge or charge goes to the courts on a question of law, and the legality of the surcharge or charge is confirmed, he cannot subsequently appeal to the Minister to be relieved on the ground that, notwithstanding the surcharge was properly imposed by law, the circumstances would justify relief being given. In consequence of this, a rather undersirable habit has grown up of coming first to the Minister because he may remit the surcharge without deciding the point of law if he feels that the surrounding circumstances justify it. In a number of cases, I think it would be preferable that the courts should first be approached in order that the law may be definitely settled and for that reason it is proposed in this amendment to allow a person who has gone to the courts on appeal from a surcharge on a point of law to go to the Minister subsequently and ask him to consider whether there are such palliating circumstances as would justify relief being given irrespective of whether the surcharge was lawfully made or not.

Does that mean that every surcharge must come before the courts?

Not necessarily, but important issues may be raised on occasions which it would be desirable the courts should decide.

Must the person go to the court at his own expense?

Not necessarily. In general, it will be at the expense of the local authority.

I should like to draw attention to the fact that it is generally public representatives who are mulcted in these surcharges and, from my experience, I can say that very often it is the action of officials that leads to the surcharge and when the public representatives are surcharged the officials go scot-free. The Minister should give some consideration to that aspect of the question. Very often at a meeting of a local authority a document is sent round for members to sign and they do so and are mulcted in a surcharge. The responsible official is not mentioned at all, although the surcharge arises from his action.

It is the manager now.

Yes, but it was not previously.

Even after the passing of this new sub-section, the person surcharged, even though the Minister accedes to his application, is still responsible not only for his own costs in taking the matter to the court, but for the costs of the auditor or other costs determined by the Minister.

That might be so.

Is it not so?

It would depend on the circumstances. In some cases it would not, because in the majority of cases it would be the manager who would be acting for the local authority.

We are concerned as Deputy Walsh said, where it is a member of a local authority. The sub-section says that the Minister must be satisfied that it is fair and equitable to remit the charge or the surcharge. It seems to me that, if members of a local authority were concerned and were prepared to take the matter to court, not only their own costs in trying to prove their point in a court of law, but the costs incurred by the auditor or others in resisting the application will be very heavy.

It is a High Court application.

That is the reason I make the point. The Minister will only remit the surcharge if he is satisfied that it is fair and equitable to do so.

And make him pay up.

Conceivably, the costs incurred may be out of all proportion to the surcharge itself.

In general, I think it can be taken that appeals will be made to the Minister in the first instance and it is only where a question of law of major importance will arise that the case will go to the court. It is almost inevitable, it may not be invariably the case, that it would be the manager, acting for the local authority, who would be concerned in that matter and the local authority would have to pay the costs.

Under this sub-section, even if the Minister wishes to meet the situation so far as costs are concerned, he will not have power to do so. As I say, it is conceivable that the amount of the surcharge may be far less than the amount of the costs. It may be a point of principle.

Supposing we let it stand and see how it works. I think that is the best thing to do.

I should like to point out that, where the manager is acting for a county council or an urban council, it is the local authority will pay, but this legislation will be taken as a headline for committees of agriculture and vocational education committees and there should be an amendment on the same lines where individual members will be affected. I want to point that out.

The argument is this. The individual members need not necessarily go to the High Court; they can go to the Minister. It is only where it is in the public interest that a point of law should be decided that they should go to the High Court. In that event the local authority will bear the costs.

At the moment there are members of the Wexford County Council who are members of the vocational committee and, including myself, they signed the book and were surcharged. Are we to be taken to court?

I could not say.

The Minister should be aware that old corporate towns stand in a different position from county councils. Old corporate towns make decisions of their own, apart from the manager's authority, and sometimes they are advised and directed by officials, and wrongly so. It is with such cases as those that I am concerned. This matter is worthy of consideration. Throw the responsibility on the officials as well as on the public representatives.

So far as members of the elected body are concerned in relation to corporate towns, to which Deputy Walsh refers, they discharge only their reserved functions. They have certain functions in relation to their corporate estate which might involve surcharges, but unless they were to behave in a grossly improper way I have no reason to think they would be compelled to go to the High Court, or that they would want to go there, in the first instance. They would probably come to the Minister.

The responsibilities should be shared by the officials as well as by the elected public representatives.

The responsibility of the elected members relates only to their exercise of their reserved functions. We cannot have the manager sharing responsibility with them for functions which are solely theirs, unless we bring the manager in and give him a share in the exercise of the reserved functions, which is what Deputies have been endeavouring to prevent.

The members of the local authority have to be responsible for the manager.

Not in the exercise of his functions.

In what flows from it.

If he does not exercise them properly, it is up to them to have him suspended.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 16:

In page 28, Section 67, sub-section (2), line 49, after the word "provided" the words "by a road authority" inserted.

I think amendments Nos. 16 to 20 could be taken together.

What are they all about?

Section 67 relates to the erection of traffic signs on roads, and amendment No. 16 to sub-section (2) will confine the application of the regulations to be made under the section to traffic signs provided by road authorities. That is to say, the regulations will not apply to signs provided by a person other than the road authority under sub-section (10). The signs to be provided by private individuals under sub-section (10) can only be provided with the consent of the Gárda Commissioner and he will exercise general control over them.

Amendments Nos. 17, 18 and 19 to sub-sections (6), (7) and (8), respectively, provide that notice of intention to erect a sign on private land is to be given to the occupant and to any other person interested, so far as that can be ascertained by reasonable inquiries, and they also make provision for an appeal by all such persons. Amendment No. 20 is to sub-section (12) and it is required to provide against obstruction when a road authority decides to exercise its powers to provide signs on private land.

Question put and agreed to.
The following Seanad amendments were agreed to:—
In page 29, Section 67, sub-section (6), line 11, deleted and the words "notice, given by registered post to the occupier (if any) of the land and to every (if any) person interested in the land whose existence, name and address can be ascertained by such road authority by reasonable enquiries, enter" substituted.
In page 29, Section 67, sub-section (7), lines 14 and 15, the words "the owner or occupier of" deleted and the words "any person interested in" substituted.
In page 29, Section 67, sub-section (8) (c), line 27, the words "to the owner or occupier of the land" deleted.
In page 29, Section 67, sub-section (12), line 42, after the word "person" the words "wilfully obstructs or interferes with the exercise by a road authority of the powers conferred by sub-section (6) of this section or" inserted.

I move that the Committee agree with the Seanad in amendment No. 21:—

Section 69: Before sub-section (6), a new sub-section as follows inserted:—

(6) Section 57 of this Act shall apply to the expenses incurred by a road authority under this section as if such expenses were expenses incurred by such road authority under Part IV of this Act.

This amendment is to Section 69. The section relates to the undertaking of works by road authorities jointly with a harbour authority. Section 57, which is here applied to works undertaken jointly with the harbour authority, provides for the classificaof expenses incurred under Part IV with regard to bridges, and these expenses should be regarded as expenses incurred in the construction and maintenance of main roads.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 22:—

In page 31, Section 73, line 46, after the word "such" the word "council" inserted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 23:—

Before Section 77 a new section as follows inserted:—

(1) The appropriate authority may, with the consent of not less than four-sevenths of the ratepayers in a locality, change the name of the locality.

(2) The power conferred by sub-section (1) of this section shall be a reserved function.

(3) The proper officer of a body, which is in relation to a particular locality the appropriate authority, shall, if and when so directed by the said body, prepare and submit to the said body a list of the ratepayers in the said locality, and such list when adopted, with or without alteration, by the said body shall, for the purposes of this section, be the list of ratepayers in the said locality.

(4) The Minister may make regulations prescribing the procedure to be followed by the appropriate authority in ascertaining whether not less than four-sevenths of the ratepayers in a locality consent to the name of the locality being changed.

(5) In this section—

the word `locality' means any area (not being a street within the meaning of Section 76 of this Act) which is—

(a) a portion of a county or other borough, urban district or town for which a separate name is in common use, or

(b) a portion (other than an urban area, a town, a townland or a non-municipal town, within the meaning of Section 75 of this Act) of a county for which a separate name is in common use;

the expression `the appropriate authority' means—

(a) as respects a locality in a county or other borough, the corporation of the borough,

(b) as respects a locality in an urban district, the council of the urban district,

(c) as respects a locality in a town, the commissioners of the town,

(d) as respects a locality in a county, the council of the county; the expression `the proper officer' means—

(a) as respects the corporation of a county or other borough, the town clerk of the borough,

(b) as respects the council of an urban district, the clerk of the council,

(c) as respects the commissioners of a town, the clerk of the commissioners,

(d) as respects the council of a county, the secretary of the council.

The House is familiar with the provisions relating to the changing of names; they are set out in Sections 74, 75 and 76. Section 77 is a section on almost identical lines, dealing with what might be described as something which is neither a street, a town nor a townland, but might be described as a locality or a district. The purpose of the section is to provide a procedure on lines similar to what has been adopted already in relation to streets and towns for the changing of the name of a whole district.

Question put and agreed to.
The following Seanad amendments were agreed to:
24. In page 35, Section 80, sub-section (1), to insert a new clause immediately after clause (a) therein as follows:—
(b) the name of the person from whom such land was acquired if the same can be ascertained by reasonable inquiries.
25. In page 37, before Section 85, line 46, the following new section inserted:—
For the purpose of removing doubts it is hereby declared that any reference, in the Local Government Acts, 1925 to 1941, to holding a local inquiry shall be construed as meaning and as having always meant causing a local inquiry to be held by an inspector of the Minister.
26. Before Section 91 the following new section inserted:—
(1) Any office to which this section applies shall be deemed, for the purposes of Section 2 of the Local Authorities (Officers and Employees) Act, 1926 (No. 39 of 1926), not to be a chief executive office under a local authority.
(2) This section applies to—
(a) the office of clerk to a local pension committee under Section 8 of the Old Age Pensions Act, 1908;
(b) the office of clerk of the commissioners of a town which is not an urban district.
Section 91. The section deleted.

I move that the Committee agree with the Seanad in amendment No. 28:—

First Schedule: In page 40 the word "Section" in the third column opposite the words "Towns Improvement Clauses Act, 1847" in the second column deleted and in lieu thereof the word "Sections" inserted.

This is a drafting amendment which substitutes the plural "sections" for the singular "section" as it stood in the schedule as originally considered by the House.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 29:—

In page 40, immediately after the words and figures "35 and 36 Vic. c. 69", "Local Government Board (Ireland) Act, 1872", and "Section 6" in the first, second and third columns respectively, the words and figures "38 and 39 Vic. c. 46", "Bridges (Ireland) Act, 1875" and the words "The whole Act" in the first, second and third columns respectively inserted.

This provides for the repeal of the Bridges (Ireland) Act, 1875. This Act has been obsolete since 1898, but it is still on the Statute Book and it is thought advisable to repeal it specifically.

Is there something to take its place?

Part IV of the Bill takes its place.

Question put and agreed to.
Agreement with Seanad amendments Nos. 1 to 13, with amendment No. 14, as amended, and with amendments Nos. 15 to 29, reported and agreed to.
Ordered: That the Seanad be notified accordingly.