Section 3 deals with the dates on which shall come into operation Orders and so forth. I take it the Minister will agree that this section is passed subject to what may arise from the large number of amendments to the Bill. There may be some consequential amendment to this section arising out of later amendments and, if that does arise, I take it the Minister will allow us to go back on it, if necessary.
Committee on Finance. - Local Government Bill, 1954— Committee Stage.
Sections 1 and 2 put and agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
I would have no objection at all to that procedure.
The section provides that the Minister may bring the Act or portion of the Act into operation from time to time as he may deem it advisable. I do not know whether this is normal practice or not in such Bills, but it provides that he may bring it in for "any particular purpose or provision." It seems to me that it would be more satisfactory if the section provided that he may bring in any particular part or section of the Bill rather than to use the general description "purpose". I do not know if I am making myself clear to the Minister but it does appear to me that, as the section is drafted, it would be open to the Minister to say: "For a particular purpose I am bringing the Bill into operation, not merely a section of it but the whole Bill." You would have the rather anomalous position that you might have the Bill or portion of it applying to one particular county and not applying to another county. I think the usual phrasing in such sections is that he may bring in any section or part of the Bill. There may be a good reason, but it just occurs to me that it is an unusual way of legislating for the bringing into operation of a Bill or part of a Bill.
It is proposed to bring in the various sections or parts of the Bill for the entire country, not piecemeal for particular areas.
As the section is framed, by the use of the word "purpose" instead of "part" or "section," it does seem to leave it open to bring in the Bill for any particular purpose.
In Section 3 of the 1946 Act the wording is the very same.
The same?
Yes, the very same.
It does not necessarily make it better. I do not think the Minister would do it, but it would leave it open to the Minister to say, "For a particular purpose I am bringing this Bill into operation as regards County Laois," for instance.
But that would not be for a particular purpose but for a particular area.
It could be for a particular purpose.
I do not think so.
Surely the Minister's purpose could be to make it apply to the particular area?
I did not think so. It has never been construed in that way.
Unless the Minister has some strong reason for keeping it that way, he might consider, on Report Stage, altering that to any particular section or part of the Act.
Yes, I will consider the matter.
Section put and agreed to.
SECTION 4.
I move the amendment standing in my name and in the names of Deputies Belton, Briscoe and D. Larkin:—
1. To add to the section a new sub-section as follows:—
(2) Every regulation made under this section shall be laid before each House of the Oireachtas, and if a Resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the Order is laid before it the Order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
My amendment is moved to ensure that any regulations made will be published for examination by the members of the council who are members of An Dáil; that if they are held to be unsatisfactory in any respect the regulations can be opposed and further information sought in the matter and further information given to the Minister.
With regard to the making of regulations, Sections 36, 38 and 51 refer to matters to be prescribed by the Minister. Section 36 refers to the nature of the public notice to be given by a local authority. Section 38 deals with the form of the sign to be exhibited. Section 51 deals with the matter of a rate of 1d. in the £. These are relatively unimportant matters and it would be inappropriate that the Minister should be required to make regulations in regard to them to go to each House of the Oireachtas.
There are other more important matters such as the matters covered by Section 19 of the 1941 Act. The Minister is not required to present such regulations. There has never been any demand that important regulations made under very important sections of the 1941 Act should be published, whereas the regulations which would be made under this particular Act are relatively trivial. Those are the only reasons why I say that the regulations should not be presented.
We representatives of local authorities are in difficulties in regard to this. The section reads:—
"The Minister may make regulations prescribing any matter or thing referred to in this Act as prescribed or to be prescribed."
We feel that we are completely in the dark. If the Minister makes regulations, there is no means of arguing the merits of such regulations or the consequences that will flow from them on a particular local authority. We feel that in the pursuance of democracy if the Minister makes a regulation on any matter or thing, the safeguard should be there and that the regulations should be exposed in the Oireachtas for a period of 21 days during which time the elected representatives can see the regulation, find out what it means, what effect it will have and make representations to the Minister before such regulation comes into force. It does not only concern the three items referred to by the Minister but every single operation he is likely to prescribe under this Act. I do not think the Minister himself or any other Minister would be agreeable to having that authority.
The Deputy will appreciate that I am only prescribing the regulations I have mentioned under these three particular sections.
The Minister may prescribe anything.
There are only three relevant sections.
Would you tell us what they deal with again?
Section 36 deals with the nature of the public notice to be given with regard to the closing of roads. Section 38 deals with the form of the sign to be exhibited and Section 51 deals with the striking of 1d. in the £ in the rates for the purpose of declaration.
They are very minor.
They are very unimportant. I may also mention— perhaps the Deputies have not got a copy—that I am bringing in an amendment—it is being circulated at the moment—providing that regulations made under Section 19 will be presented. It has just been circulated.
Major de Valera
The argument is tending now to centre itself on the specific matters to be prescribed in this Act. I would object to the bald terms rather than on principle in relation to this Act. I object particularly because of a later provision which this Act contains. I think the importance of this amendment does not lie so much in its reference to this Act as in the principle with regard to delegated legislation.
To make my point clear, I better refer straight away to the provision in Section 14 (n) which we will come to later on. Here we have a provision which in effect provides for the implementing of regulations by direction given from time to time by the appropriate Minister, or, in effect, gives statutory force to ordinary regulations made, completely shortcircuiting the legislative machinery here. At least, that would appear to be the case on a first reading.
The memorandum circulated covers that.
Major de Valera
At the same time, the fact that such a provision should have appeared in a Bill which was circulated and passed Second Stage is something that calls for serious comment and note in this Assembly. We have a history in regard to delegated legislation which is a little bit confused. I think I will be completely within the bounds of argument in regard to this amendment if I go back to the circumstances that brought about the necessity for such qualifying clauses and draw attention to them.
During the war, of course, under the stress of emergency conditions, and where you had completely abnormal conditions, legislation by Order was a necessity and had to be freely exploited in practically every domain in the life of the community. The war was hardly over when the then Opposition, the Minister's own Party, and others also launched a very cogent, if you like, campaign against this question of legislation by Order. There was a number of sympathisers with that point of view on the benches of the then Government. In other words, I think the opinion in the House as a whole was that a certain dangerous situation had developed where democracy could be made, in effect, a farce if it became too easy for Departments to legislate by means of Orders. It would in the long run make the functions of this House almost unnecessary.
On the other hand, the exigencies of the organisation in our day demand and necessitate that there must be some regulation by Order and legislation by Order. I am addressing these remarks particularly to the Minister because the Minister will recollect the particular stress laid on this point by their own Party and by the Taoiseach and members of his Government in particular. This principle of safeguarding the power that is in this House has been a cardinal one in our approach some years ago in this House.
I am very glad to hear that the Minister is going to introduce an amendment to cover that dangerous innovation in Section 14 but that such an amendment is necessary makes us, as I said before, feel that at every turn, where powers are given to a Minister to legislate by regulation, those powers should be hedged in as far as possible and only granted to the extent which necessity demands. I can see no possible valid excuse for rejecting an amendment such as the one tendered on the mere ground that it is unnecessary in the particular type of Order contemplated. The trouble is that that can easily be the thin end of the wedge. If it is unnecessary in the case of an Order, say, for blocking a road, it is an easy thing to extend it, say, to an Order only permitting a certain type of traffic on the road—and then it will be easy to extend it to an Order that might control the whole user of the public highway. I realise that that may be a far-fetched statement but I intend it as such. The fact is that such a thing can be the thin end of the wedge.
Having regard to the dangerous provision under Section 14 and to the fact that no harm can be done by adopting the amendment, there can be nothing that will prejudice the operation of an Order; if an Order for blocking a road is urgent then it will be done. The four Deputies who put their names to this amendment included the words "... but without prejudice to the validity of anything previously done thereunder". What objection can there be to the inclusion of such a qualifying clause in respect of the making of a regulation unless it be that somebody does not want the thing to be discussed? After all, it is the right of the Deputies here to discuss any action taken by the Minister of the Department: not only is it their right but it is their duty to do so where they see that the case is one which should be investigated.
In order to enable Deputies to perform these functions, it is very important that the information will be available. One way in which the information can be made available is by putting the onus on the Deputy to inform himself and putting the document on the Table of the House, thus making it available here. Then, any Deputy who is interested enough can find out what he wants to know. However, it is a totally different thing to have Deputies in the position where they cannot find out, or easily find out, what has been done. For these reasons, I think this amendment— particularly on the principle—should be accepted.
I grant the Minister that, in the particular subject-matter to which it relates, there is much to be said for his point of view but, on the general principle of safeguarding the matter of delegated legislation, on the general principle of the responsibility, powers, authority and privileges of this House for the protection of the public, I think the Minister would be well-advised to accept this amendment and, frankly, I cannot see that there is any reason why he should not. If the Minister can tell us some way in which the administration would be embarrassed by accepting this amendment, we will consider it. However, unless he can say that it will hold things up in this way or that way, I can see no reason why the amendment should not be accepted and I strongly urge that it be accepted.
I think the Minister should consider accepting this amendment. I agree that on the facts of this particular case, it is not of very vital importance—but it is dangerous legislative precedent. We have tended too much towards the making of laws by regulations and Orders that are not readily available to members of the public or even to members of the House. I welcome the statements made by Deputy Major de Valera in regard to that matter—particularly when I think of the number of times members of our Parties from time to time objected to exactly similar provisions in Bills introduced by the last Government.
Exactly.
I have here the Local Government Act of 1941 which, as far as I know, was not introduced by the present Minister but was probably introduced by the Minister before him. It contains exactly the same section enabling the Minister to make regulations prescribing any matter or thing referred to in the Act as prescribed or to be prescribed. However, the fact that the last Government inserted provisions in their legislation which infringed on what, in my view, should be the proper constitutional position is no reason why this Government or this Dáil should do it. Therefore, I would ask the Minister, if at all possible, to accept this amendment. It cannot cause very much inconvenience. It only means that a copy of the Order will have to be laid on the Table of the House. There has been a tendency to mill out Orders—not by the Minister's Department but by other Departments —at a terrific rate. Unless they are laid on the Table of the House there is no way in which Deputies can even become aware of the existence of such Orders. This amendment has been put down by four responsible members of the House who are also members of the Dublin Corporation. In deference to their views, I think the Minister should accept this amendment.
The Minister's amendment to Section 14—except, possibly, for a grammatical correction—is almost identical with the amendment to Section 4 which is moved by four Deputies of this House.
It deals with a very important matter.
Yes, but the amendment is almost identical. I agree with the previous speakers. Whether or not what was done in the past was done for good or bad reasons, the fact is that we seem to be in agreement that it would be better not to have the legislation delegated to the matter of Orders. I cannot see why the Minister will not accept this amendment to Section 4—and it will cover Section 14 as well.
Deputy de Valera talked about the three particular references the Minister has made and to which these Orders might be made. These things to-day can be very vital. A local authority might decide to widen a certain street and the Minister might, by Order, overrule the unanimous decision of the local authority. It is not as simple as saying that it refers only to a road. Deputy Major de Valera referred to other aspects of it. We are now vitally concerned with the whole reorganisation, if you like, and rebuilding of the City of Dublin and all of us on the corporation are concerned about certain problems in connection with town planning, and so forth. We give much time in studying these things. We do not want to be faced with a decision which we cannot overrule and say: "This is the better way."
I should like to say to the Minister that all the amendments which were put down in my name and the names of Deputies A. Byrne, J. Belton and D. Larkin are amendments which have no reference whatsoever to Party views. One might say that they represent the unanimous opinion of the representatives of the Dublin Corporation. They have been studied with a view to improving, if we can, the whole method of city government. It is in that sense that we approach this matter—as colleagues on the Dublin Corporation. We feel very strongly on the matter and we would ask the Minister not to force the issue but to agree to accept the amendment to Section 4—and then we shall have overcome that bit of a difficulty.
I would press the Minister to accept the amendment put down in the names of us four Deputies. The Minister indicated that the section would only give him power to make regulations under three rather unimportant sections. If these three sections of the Bill which he cites are unimportant then, for that reason alone, I think the Minister should accept the viewpoint put forward here that regulations in respect of these sections should be placed on the Table of the House.
I think it would be correct to say that, if a regulation is made in respect of a minor matter, no Deputy in this House would, for the purpose of obstructing, seek to have the regulation made by the Minister annulled. On the other hand, I think it is correct to say from the point of view of local authorities that it could be very embarrassing to members of local authorities—and there are many in this House —to find that even in small ways they would be getting indirect information on regulations made affecting them as members of local authorities. I think the case is well made to the Minister and I would ask that the amendment in the names of the four Deputies who happen also to be members of the Dublin Corporation, be accepted.
I can assure the House that there is no person more opposed to legislation by regulation or by ministerial Order than I am, and I appreciate what Deputy de Valera has said, that during the emergency it was necessary to legislate by ministerial Order. In the year 1941, as Deputy MacBride has pointed out, a Local Government Bill was introduced and passed by this House giving the Minister power to make regulations governing very important matters.
We were living in a war atmosphere.
You were legislating for the present and for the future and powers were given, particularly under Section 19 of that Act——
Major de Valera
Maybe those powers were too wide.
The Opposition opposed them at the time and it was argued in the House and accepted. I am prepared in the case of major matters where regulations must be made to lay them before the House and that is the reason I have put in the amendment; but here we are only dealing with minor matters. For instance, supposing we want to close the roadway down at the Curragh for motor racing, we must take our decision fairly fast. Would it not be absurd and ridiculous to ask to lay the regulation before the House governing the closing of the road? These are minor matters. They may affect some organisation, such as those organising motor racing, very seriously. However, as Deputy MacBride has pointed out, this amendment has been put in and signed by four responsible Deputies of this House and by four responsible members of the Dublin Corporation, and if the House presses me to accept it I am prepared to do so.
Might I ask the Minister if he recognises that the powers under Section 19 of the Local Government Act of 1941 that are now being discussed deal exclusively with "major and other offices," matters of employment of local authority officials, but the amendment we are seeking to get through is that where a ministerial decision affects the public. That is what we are concerned about. The heading of Section 19 is "Provisions applicable to both major and other offices." Under this the Minister could make regulations determining remuneration, regulating the payment and amount of travelling expenses, determining hours of duty, providing for records of attendance, and so on. It has nothing whatever to do with what the Minister called "minor matters." I would suggest that Section 19 of the Act of 1941 deals with minor matters and what we are discussing are the major matters.
That is a matter of interpretation. However, if you press the amendment I am prepared to accept it.
May I venture to make a suggestion? I agree with the speakers who have objected to this legislation by regulation but I also agree with the Minister that in the three sections that he has mentioned the matters dealt with are minor. Could the Minister accept this amendment with an amendment to it exempting from its provisions these three sections?
These are the only ones affected.
It is a matter of principle that this should not appear to be legislation by regulation.
Do you want me to amend the 1941 Act so far as that is concerned?
That might not be a bad idea. Since the Minister has amended quite a lot of it he might have done that as well. I take it from Deputy Briscoe that the minor matters the Minister refers to are to Deputy Briscoe major matters, so perhaps I had better leave it alone.
Major de Valera
I still will join issue on this question of major and minor matters. That is a very easy phrase to bandy about, but what are major and minor matters? Where do you find a definition of what is major and what is minor? A thing might be major from one point of view and minor from another. They are two words very easy to bandy about here but they can be very easily an excuse for bringing about a situation which we all want to avoid. I think the Minister as a lawyer will agree with me that there are dangers there. He says he will accept this and I think he should. It is a general principle here that we should be very careful, even though it may appear to be a matter of form, to see that our powers—after all the powers of legislation are vested in the Oireachtas—are safeguarded in the public interest.
A minor matter about the closing of a road in the Curragh was mentioned. In the ordinary course of events that may be a minor matter for a motor race. What embarrassment or trouble can be caused by laying that amending regulation on the Table of the House? The action has been taken. That is provided for in the amendment, that there will be no prejudice to the validity of the Order. What possible embarrassment, inconvenience or anything else can accrue from laying the Order there? On the other hand the closing of the road at the Curragh in another set of circumstances might be a matter of considerable public importance. Therefore, I for one, purely on the question of the principle, say that I would be very glad to accept the Minister's offer that he will include the amendment. I think he should on principle.
I am glad the Minister has adopted the attitude which he has, but I would like to express my regret, as did Deputy MacBride and the Minister, that Deputy de Valera did not make the speech he has made here to-day some years ago.
Major de Valera
Look up the records; I think you will find I did.
I apologise to Deputy de Valera if I am wrong and I can only express regret he had not more influence with his Party. It was only during the period of the last Government, I think, that the Undeveloped Areas Bill was introduced. I recall, as a member of the other House of the Oireachtas, protesting against the fact that that Bill reeked and steeped in legislation by Order on matters which certainly appear to be of major importance. Now Deputy de Valera tells us there is no difference; it does not matter whether they are major or minor matters. It is the principle that counts and the principle is that there should not be legislation by Order if it can be avoided. With that principle I agree and, as Deputy de Valera has pointed out, the Party I represent has, for many years, suggested that the principle of legislation by Order, at any rate when it was unnecessary, was bad and undesirable. Therefore, I am glad the Minister is adopting the attitude he is adopting because I believe that Deputy de Valera is right in his 1954 approach to this matter. I am glad to learn from his interruption that it is not a new one and I wish him very much greater success in the future in converting his own Party to his point of view in this matter.
Major de Valera
I must say I am slightly amused at Deputy O'Higgins bringing this right into the realm of politics. If I wanted to play politics with this section I would say to Deputy O'Higgins: "This has been one of your big planks in 1946. Here is your opportunity? You are in power now. Will you carry out all this?"
We are offering to do it.
Major de Valera
I am hoping to see it done on a later section. I hope the Minister will do it on another section later on.
Deputy de Valera will remember, as Deputy Briscoe has already pointed out, that this is your Government's Bill.
Major de Valera
It does not matter; you are putting it through and you have the privilege and the majority to pass it in exactly the form that you wish. Let you face that—that you have the privilege and majority to pass it in any form you wish. It is your Bill now and it will be your Bill when it comes to the pass. However, after Deputy O'Higgins and myself have had these little sallies at one another, let us get back to the substance.
The war situation was dangerous. It necessitated regulation by Order. There was a great need to curb that tendency, and if Deputy O'Higgins wants it I will give him and his associates credit for that point in the past. That need is as much as ever here to-day. Since no one here has given us a concrete reason why the inclusion of such a safeguard would bring about embarrassment or would be objectionable, I think the principle should rule. If there were no strong argument advanced that serious embarrassment to the Executive or serious inhibition in getting work done would result from such a provision, then we would be open to argument, at all events; but since no such points are forthcoming the principle should rule. The Minister has offered us this amendment, and says that he will accept it. I think he has done very wisely, and I congratulate him on accepting it.
I was very pleased to hear the Minister say that if the House so desired he would be prepared to accept the amendment. It gives him an opportunity of doing something that could well have been done since 1941. I do not intend to enter into the passage at arms between Deputy de Valera and Deputy O'Higgins; but the main concern I had as a Deputy here was that these clauses, although minor clauses in the Bill, did in effect maintain in local government the right of the Minister to operate by regulation. I am pleased that the Minister has indicated that he is prepared to accept the amendment suggested.
I might refer to what Deputy Briscoe said. If he would refer to the typescript amendment to Section 14 which had been circulated, he will see it provides for tabling by regulation under Section 19. I think this is what Deputy Briscoe thinks could come under Section 4 of the present Bill. He has made reference to it.
No, I said the wording of the amendment in the Minister's name to Section 14 is almost identical with the amendment which has been proposed for Section 4. That is what I said. I am asking the Minister to accept the amendment in our names to Section 4 and I think the Minister has agreed to do so. I do not want to enter into a political controversy: I want to keep as near as possible to the Bill.
Before the amendment is accepted, it requires slight redrafting. The word "Order" should read "regulation" in each case and the words "as soon as may be after it is made" should be inserted after the word "Oireachtas". Would that be acceptable?
Yes.
Amendment No. 1, as amended, agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
Major de Valera
There are two points on this section that have been brought to my notice. I advance them merely as matters for the Minister to consider and for amendment, possibly, on the Report Stage. Having regard to a later section, I think Section 58 of the Bill, this section in effect provides that where—to safeguard myself, let me say "amongst other things"—a public authority undertakes duties or functions in regard to another local authority—and presumably that relates to the later section I referred to, where such provisions are covered—the officers of the local authority will have the duty of performing those duties. In other words, I conceive this section to have arisen in this way, that the Minister is going to provide in this Bill—and this House when it passes it—that one local authority can undertake functions or duties for another local authority, presumably in the other local authority's area, or for and on behalf of it, and, having provided for that someone raises the question: "Who i going to do it; will our officers and employees do it or could our officer and employees object to doing it?' Presumably, on going into that lega question, the Minister may have been advised that as the law stood th officers and employees of the particular local authority undertaking the functions of the other authority might be in a position to object and that, therefore, the inclusion of the section was necessity; but we are now up against something in the way of pretty broad principles.
From the point of view of the public and the point of view of the community as a whole, I think it would be unreasonable in all cases for officers or employees simply to be able to say: "This is not for our local authority and, therefore, we are not required to do it," and in that way completely nullify or stultify the later provisions of the Act. On the other hand, there is the opposite extreme, where we can conceive of a local authority undertaking functions and duties to such an extent that it would be hardly fair to ask their officers and employees to take it in their stride, so to speak. Now, there is a question there. Quite frankly, that particular objection was only brought to my notice very recently and I have not had time to consider it, but I think it is one that the Minister should consider—whether it is equitable to go the whole way and to say to the medical officer, the engineer or some other employee of the local authority: "Look, we are carrying out some works for a neighbouring local authority or we are administering some scheme for a neighbouring local authority and you have to take on this additional work and it is just part of your ordinary work."
Perhaps I should say it is a question of degree. If it were only a trifling or relatively small, minor matter, I think it would be unreasonable for the employee or officer to object. On the other hand, if it were anything substantial it may very well be that the officer or employee would be taxed beyond his capacity or would be asked —this is equally important—to undertake work and duties far in excess of those for which he contracted, and questions of additional remuneration, facilities, inconveniences — all these things can arise. I do not want to delay the Minister by hypothetical cases, but I think he can see the problem I am dealing with. I must content myself with that at the moment, but the question naturally has been raised and these officers and employees are apprehensive and they would press for deletion of such a section. If that section were to be deleted, however, I think the Minister would have to have, on the other hand, some safeguards so that any unreasonable use would not be made of the present position. All I can say at this stage is that I think the Minister should consider that matter before the Report Stage—I take it representations will have been made to him—and see if there is not some way to reconcile the various conflicting principles which appear to be an issue in this section.
There is one other matter in the section which I think is an accident, but it does appear in the wording of this section where it says: "It shall be the duty of every officer of each such local authority to perform such duties, or refrain from performing such duties, appropriate to the nature of the power, function or duty to which the agreement or arrangment relates, as the local authority under whom he holds office may decide." The wording of that simply boils down to this—that the officer of the undertaking local authority will be bound to perform or refrain from performing such duties as his local authority may prescribe, subject only in this section to the qualification that it is appropriate to the nature of the power or function which is taken over by the undertaking authority. That means that the local authority can tell its officers to perform any duties, or not to perform a duty, in relation to the authority for whom it is acting, subject only to one qualification, namely, that its directions will be appropriate to the arrangement made between the two of them. That might have rather unforeseen consequences. The Minister has limited the application of the section so that it is "appropriate" to the arrangement but surely there should be something there making it "appropriate" to the functions of the officer also? In other words I think there is an omission. Under the working of that section, it is, I think, conceivable, though undoubtedly very far-fetched, that you might detail a doctor to do an engineer's work. I think it is purely an oversight and perhaps it could be met by the addition of the words "appropriate to the nature of the office held by such officer and appropriate to the nature of..." I do not know if I have made the point clear. Two qualifications are necessary: one is there already and the second would provide that the function or duty should be "appropriate" to the office held by such officer. I think that would be desirable, because quite clearly it would be undesirable to order a medical officer to build a bridge or do an engineering job or vice versa. I recommend that as nothing more really than a drafting amendment which the Minister might include on the Report Stage.
Would not the words "such of his duties", instead of "such duties", meet the Deputy's point?
Major de Valera
Any amendment that will cover the point will satisfy me.
I should point out that the purpose of this section is to prevent frustration by officials of the implementation of Section 58 of the Bill, which we will deal with later, and also that there is nothing new in this. Under the Health Act, 1953, contracts may be entered into and agreements made by one local authority with another. Under the Fire Brigades Act of 1940 similar agreements may be made. But it is to prevent the frustration of the completion of these agreements that this section is put in. However, I see the Deputy's point and I will have it examined between this and the Report Stage.
Major de Valera
I appreciate the Minister's point and the principles he has stressed. As he said, the provision is to prevent frustration of the implementation of Section 58. On the other hand, he might be able to give some attention to the claims—or, rather, the fears—of the officers and some equitable arrangement might be worked out on a purely administrative basis with the particular interests concerned rather than by legislation. However, at this stage I will leave it in the Minister's hands.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Question proposed: "That Section 9 stand part of the Bill."
This section is being opposed to enable the Minister to explain in more detail what the section proposes to do. I am rather confused about what is meant where it says "the appropriate Minister" may direct that the remuneration of all offices in relation to which he is the appropriate Minister, or for such of those offices as belong to a specified class, description or grade, or of a specified one of those offices, shall be inclusive remuneration". What I want to ask the Minister is—if our city manager and council of elected representatives decide that the time has arrived to give an official an increase in salary and send it on to the Minister—as the city manager did quite recently in connection with our law agent's department and in which case the Minister held up or rejected the city manager's recommendation—what further power should the city manager or council have? The same thing occurred in the housing department only a couple of weeks ago when some promotion was held up, and about four or five months ago in the public health department.
This section merely deals with fees, not salaries.
When the words used were "inclusive remuneration" I thought it well to get a comment in about the Minister's own Department frustrating the corporation and city manager by refusing or holding up recommendations from the corporation which knows its officials and can recommend them. I think it is unfair that that should happen while the council ought to be the superior authority as it knows the work done by these men and their abilities. I would suggest to the Minister that he should do something about that now.
With regard to the gentlemen to whom the Deputy refers I have not yet given a decision in the case at all. They do not receive fees: they receive salaries. The section refers to fees.
The word "fees" is not mentioned.
It is in sub-section (2).
Question put and agreed to.
SECTION 10.
I would suggest to the House that amendments Nos. 5 and 15 are cognate and could be taken together. The debate on amendments Nos. 24 and 26 could also be taken at this stage. Separate decisions can be given, if necessary.
I move amendment No. 2 in the names of Deputies A. Byrne, Belton, Larkin and myself:—
To add to the section a new sub-section as follows:—
(6) Functions of a local authority under this section shall be reserved functions.
We are not objecting to Section 10 as a whole as it stands, but we do suggest that, in line with all the other amendments which we have and in line with the principle which we think should be established and carried on, there should be added at the end of the section a provision that the functions of a local authority under this section should be reserved functions.
The Minister will remember that, on the Second Stage, I pointed out that in this Bill "local authority" in different sections has different interpretations, that in some sections it meant exclusively the city manager and in other sections the elected representatives. As this section deals with what is of vital importance to elected representatives—the day to day carrying on of the business of the local authorities, of which they are the managers or, if you like, the directors— they should have some cognisance and some control of the appointment of their staffs, promotion, abolition of offices and generally, to be responsible for the remuneration, because, in the final analysis, it is the elected representatives who on a particular day each year have to find out of the rates the money to pay them.
I do not want to go through this section at length. Sub-section (1) refers to the amalgamation of offices. Obviously, local representatives should have some say and they should be consulted, if it is decided by the Minister that certain offices should be amalgamated. After all, it is the elected representatives who know intimately how a local authority operates and what each section of it does, and how, if necessary, an office might be suggested for amalgamation and how it might affect adversely the working of the particular local authority.
Section 2 deals with officials of local authorities who are affected by two Ministers, particularly so in our case, where the Ministry of Health and the Ministry of Local Government dovetail quite a lot in our affairs. Where Health may suggest one thing and Local Government another, and where they get together and find some compromise, we do not want to be faced with an Order incorporating that compromise without at least being drawn into the matter and having a final say. Local government, as some people seem to think, particularly certain officers of the State, does not happen to be purely administration of office affairs. It is well known to members of this House who are public representatives in some form or another, that local administration affects every day almost every citizen of the area represented by those representatives, and that where alterations are made in the administration, they have to have regard to the impact of those alterations or appointments on the people. It is the ratepayers who elect those representatives and we must safeguard their interests as well as safeguarding efficient and economic administration.
Sub-section (3) says that offices shall not be amalgamated under this section "unless each of the offices is vacant or unless each of the offices is held by the same person or unless only one of the offices being not vacant ..." Sub-section (4) deals with something similar, but in respect of appointments again.
We feel—and it is in line with other amendments to other sections—that appointments of officials, amalgamation of offices, the creation of offices or the appointment of additional officials should only be done either by way of a reserved function of the local authority, or at least as the result of consultation and agreement between the city manager and the local representatives.
I do not know whether the Minister will resist this amendment or not, but I want to say to him that we are very serious about it. The Chair has requested that in debating this amendment to Section 10, we should also debate amendments to Sections 12, 20, 26 and 28. Reading all these sections, it is quite clear that the same principle runs through them. Section 10 is the one I have referred to. The same applies to Section 12, which again deals with officials, offices and so forth. Section 20 deals with remuneration and in this connection I would like to say to the Minister—and I am sure he will understand our position—that in present circumstances the manager has the power, with the consent of the Minister, to add a number of additional officials; he may appoint a number of engineers or other officials. The local authority representatives know nothing about it, but when the estimates are presented to the representatives and when they see there is an increase arising from additional salaries, it is then for the first time that they are confronted with this situation, never having been consulted before. They have either to accept the position and pass the necessary additional rating amount to pay for these salaries or create chaos by not passing the rate and affecting the running of the local authority.
We want the manager, with all the control that is necessary over him by local government, to come along to the local representatives and to say: "I propose promoting this man" or "I propose appointing additional officials; it will cost you so much, and this is the reason for it." He should make his case for the necessity for these appointments to the local representatives, as he has to make it to the Minister, because I am satisfied that the Minister does not say: "Go ahead; appoint 12 people". He makes him make his case to him. He could just as easily make the same case to us, and the Minister would be much more safeguarded if he found that not only did the manager think such appointments necessary, but that it was fortified by the views of the representatives after they had examined it on the spot, knowing the situation first hand from their day to day contact with the operations of the local authority.
I do not know whether in this difficulty—the Minister himself is in a difficulty—we have been discussing the principle of the County and City Management Bill to be introduced shortly to amend certain legislation and to transfer back to local representatives certain functions which would be reserved functions and which now are not. The Minister has mentioned, I cannot say exactly when, that such a Bill would be introduced. With that in mind, I think the Minister ought to accept——
I can assure the Deputy the Bill will be introduced this session.
I did not say it would not; I said the Minister had said it would and I am quite satisfied. If the Bill is to be introduced this session, and if it contains what most of us hope it will contain, a proposal to give back to local representatives certain controls which they have not now—surely in the short interim period these amendments to the various sections can be accepted because they are in line with what I believe most representatives understand will be contained in the new Managerial Bill. I think the Parliamentary Secretary, Deputy Davin, has already on a number of occasions outside this House indicated his expectancy that there will be further restoration of powers to local representatives.
Is it Deputy Davern you mean?
No, the Deputy opposite to me, Deputy Davin.
The Parliamentary Secretary.
I could not gather for the moment whether he was Parliamentary Secretary to the Minister for Local Government or to the Minister for Social Welfare. The Parliamentary Secretary has also in this House on a number of occasions, in the very recent past, been a very strong advocate for what I now ask and I do not think he is hostile to the views I am expressing. I do not think the Minister is hostile either, so therefore, subject to what other supporters of the amendment may say, I shall just reiterate that we want a right to have some say, some knowledge, some control over appointments, dismissals, promotions and salaries payable to the officials of our local authorities.
This amendment applies to Section 10 and, it is suggested, also, to Sections 15 and 20. It in effect asks the Minister, even under this Bill, to take some functions away from the city manager and to give them to the local authority, to the elected representatives. Deputy Briscoe referred in particular to the desirability of the elected representatives, the local authorities throughout the country and here in Dublin, having some say in the appointment, promotion and dismissal of employees and he raised the matter, to some extent, of the responsibility of the members of local authorities to the ratepayers. There is another responsibility which we, in Dublin, have come up against in recent years. That is, that because of the fact that the elected representatives did not have the authority suggested in the amendment, services to the citizens were liable to be prejudiced very severely. The elected representatives were aware of the fact that, in certain sections of the local authority, services were being prejudiced through lack of technical administrative staff. All they could do under the present system was to ask questions in the council chamber or to make representations to the manager. I think it is important here and now to get from the Minister an indication as to whether he will be prepared to consider that the term "local authority" for the purpose of this Bill should mean the elected representatives. I think it well to make it clear that none of the Deputies who have put their names to this amendment was thinking in terms of the question of the appointment, or dismissal of any individual or of any alteration in the office of any individual; but we feel that the power should be vested in the local authority itself just as power, in a national way, is vested in this House and in the person of the Minister.
The control of the offices of this Government is vested in the Dáil through the appropriate Minister and it is a negation of democracy, in my opinion, that in the case of the other form of government we have in this country, local government, control is vested in a manager who is not responsible for the purposes of the Act to the local authority and in effect can, if he so desires, inform the elected representative of the people in a particular area, that the question of administration is a matter outside their province and one on which they not only can exert no decision but in effect can have no opinion. This amendment simply asks that the people who go for election before the citizens whether in cities, towns or rural areas, on their being elected to a particular local authority shall be the governing authority and the local authority, and that they shall have the right to see that the local authority is run in a proper manner and that the officers and servants of the local authority are treated in a proper manner. At the present moment the elected representatives have no jurisdiction whatsoever in this matter and I would therefore suggest to the Minister that he might favourably consider incorporating the amendment standing in the names of the four Deputies.
With regard to this amendment and the various other amendments referred to, all these deal with the relations of staff and county managers and local authorities. Prior to the introduction of the original Cork City Management Act, 1929, and the County Management Acts the elected representatives had control over staff, over their dismissal and otherwise; but that control was abolished by the County Management and City Management Acts and I would respectfully suggest to the House that the arguments now being put forward would be more appropriate when we come to discuss the amending of the County Management Bill.
Ever since the introducing of these Acts it has been accepted down through the years and right through legislation introduced and passed in this House that the executive officer or county manager shall have control of staff. That was accepted in the original Cork City Management Act and in the County Management Act, 1940. No later than last year the County Management Bill, 1953, was introduced here and the same principle was accepted with, of course, certain reservations.
And amendments.
And amendments. I am not making any political point or argument out of this, but that has been the accepted practice. I hope the amendment we are now discussing will be discussed when we introduce the amending Bill of 1954; I think it is inappropriate to discuss these amendments now. All these sections are intended to generalise and consolidate the existing law; they do not, however, consolidate the whole of the law relating to officers. There is no more justification for writing in these amendments into this Bill than there would be for trying to amend the Housing Bill which was introduced last March to rearrange reserved and executive functions in relation to housing.
Let us discuss these amendments on the appropriate occasion, namely, when we are discussing the amendments to the County Management Act. I cannot accept these amendments now. I am not prepared to say what I shall do when we come to discuss amending the Act, or whether they will be written into it.
That is worse.
I do not think it would be fair to ask me to discuss them. Let us discuss them on the appropriate occasion, if they are taken.
What the Minister is asking the four Deputies who have tabled this amendment to do is to get into a ring and each indulge in shadow boxing, because he says he does not know what his own attitude will be.
Why should I discuss it at this stage?
In view of the fact that we do not know what will happen or what the Minister's view will be, and because of our experience over a long number of years of unfairness to public representatives, we are asking the Minister to accept this amendment until such time as the new Bill is introduced when we can discuss the matter with a certain amount of experience behind us. I am sure the Minister will understand our position.
Now, since the death of our housing director during a period when housing had become a priority service of the Dublin Corporation's activities and, as everybody will admit, we have advanced from year to year to what might be called a maximum housing programme, we have not been able to appoint a housing director because the Local Government Department will not permit us to pay a housing director under present circumstances a salary in excess of a certain figure. I think the figure is £1,400.
A housing architect.
I should have said a housing architect. What is the position? Because we are not allowed to pay a housing architect £1,800 a year —the Minister says he will not allow us to engage one at a higher figure than £1,400—we are actually paying in fees to outside architects every year a sum of money in excess of £10,000.
I would like to know what that has got to do with reserved functions under this Bill.
We could meet and say to the city manager: "You must get a housing architect; to get a proper housing architect to meet our present needs we may have to pay him £1,800, but we are agreeable to do that and we are prepared to stand over it and justify it to the public; put this up to the Minister and get it sanctioned"—that is what it has got to do with it.
How long has this been going on?
For years.
That is what I thought.
The Minister referred to a previous Administration introducing a Managerial (Amendment) Act. I was on that side of the House at the time and, if the Minister looks up the debates, he will see that my amendments then were similar to the amendments tabled to-day.
Put them in again when I introduce the appropriate Bill.
I am sure the Minister intends, as he says, to introduce the Managerial (Amendment) Bill this session. How long will it take before we reach the final stages? It might bring us into the next session and, possibly, the session after that. A period of time will elapse. We are now dealing with a Bill under which it should be possible to correct a situation which is not fair to public representatives. If the Minister does that he will have an opportunity then of judging what happens in the interregnum between now and the time he introduces his other legislation. The House will then be in a position to discuss the matter on the basis of experience.
I think it is only fair to say that we are all in agreement, all 44 members of the Dublin Corporation—I cannot speak for one who rarely attends—in relation to this matter. We have all seriously considered the position, not to-day or yesterday but over a very long period of time. We know what the attitude of our members is, including our Lord Mayor. The position is a most invidious one. An unhappy situation is being created. We want local government carried out by public representatives but if the Minister puts this Bill through without giving consideration to the requests and pleas of those of us who have some experience in this matter, when the next election comes the Minister will find himself faced with a possible insufficiency of candidates to fill the seats available on local authorities.
I hope to make the amending Bill law before then.
It will not be in time before next June.
It will unless the Deputy obstructs it.
Major de Valera
Is that a promise?
It is.
I have experience of Governments making promises.
The Deputy has no right to state that the Bill will not become law before the next election.
I am saying that now. If it is law, I will apologise to this House.
That is your wish.
That is my prophecy. I made prophecies when the Coalition Government was in office on another occasion, and I was offered bets. They were going to have a Social Welfare Act before Christmas.
Let us get back to the amendment now.
Deputy Briscoe lost some of his bets.
Not all of them. I am wondering when we will have this other legislation that is promised very soon. If it is the intention to put a County Management (Amendment) Bill through this House before June, what is the sense in putting this through now with the objectionable clauses it contains? I am of the opinion—I make this prophecy—that the City Management and County Management Amending Bills will not be law before June if this Bill goes through in its present form.
Are you looking for bets on that?
I do not propose to discuss with the Deputy certain things in which he does not indulge, to my knowledge anyhow. I am not approaching this in any Party fashion. I do not know whether I am disclosing a Party secret when I say that I am in complete disagreement with my colleague, Deputy Smith, in relation to certain matters in which he has a lot of sympathy with the Minister. He is sympathetic in relation to some of the things the Minister is proposing, things to which I strenuously object. I am approaching this purely on the basis of consultations with my colleagues in the Dublin Corporation and what we believe to be in the best interests of the running of the Dublin Corporation. It is in that spirit, as I mentioned before, that we sat down together as a committee selected by the corporation and decided to go through this Bill section by section and to make amendments in our joint names.
The Minister says he cannot see the sense in accepting an amendment of this nature when we will have the County Management Bill to deal with this matter, but we are getting no promise; the Minister is not saying to us that these amendments will be embodied in the Bill he proposes to introduce. If he stated that, I, for one, would be quite prepared to accept his undertaking without question, without reservation and to ask my colleagues to withdraw these amendments because we would be prepared to wait for six or nine months if the Minister gave us his undertaking that that will be the position. I am sure the Minister will not give that undertaking.
We are dealing with amendments to a number of these sections, each one of which is vital in itself and I am afraid if the Minister cannot give us something better than just the vague undertaking he has given that there will be a County Management Bill, without saying what will be in it, we will have to press these amendments.
I would put the point to the Minister that a Local Government Bill should contain the fundamental basis of local government in all its aspects. A Managerial Bill is really only an administrative Bill setting out what certain officials ought to do and their functions. The functions that the elected public representatives should have should be enshrined in a Local Government Bill and a Managerial Bill should give the manager certain functions and should be confined to that.
I think amendments of this kind are vital to this Bill and should be considered and dealt with now.
Major de Valera
Deputy MacCarthy has expressed the point very well.
There is just one particular matter on which I should like to hear from the Minister. The Minister indicated that possibly the amendments would be more appropriate to and could be argued on a sounder basis on the City and County Management Bill. On that particular point I would be inclined to go some part of the way with him. What I would be concerned with is, not the question of the date when the Minister brings the Act into operation, but that the absence of an amendment such as proposed to Section 10 and other sections of the present Bill would not prejudice our discussion of the City and County Management Bill. I should like to have an assurance from the Minister—he has indicated that he intends to bring in such a Bill—that, if this amendment is not accepted, we would not be told when the City and County Management Bill is under discussion: "I am afraid I cannot accept the amendment now because there was an amendment of this nature to the Local Government Bill, 1954, which was withdrawn, and now it would not be right for me to accept it in this newer Bill."
There is another point that the Minister might bear in mind—the difference between the functions of a city or county manager and an executive officer. Neither a city manager nor a county manager at present is an executive officer as such because an executive officer carries out functions laid down by somebody in authority, whether it is a local authority, a Minister, a board of directors or somebody else. He is not in the particular area the last word.
I say, without any question of personalities, that in Dublin we have been facing the position that the effective power is not vested in the elected representatives; it is vested in an appointed official. Practically 99 per cent. of the authority that is supposed to be vested in the Dublin Corporation in one case is actually vested in the city manager.
If I can have an assurance from the Minister that if I am prepared, as one Deputy concerned, to withdraw this amendment, he will not say, when the City and County Management Bill comes before the House: "You accepted it in 1954 on another Bill; you should accept it on this occasion," and in view of the indication that the Bill referred to by the Minister will come before the House within a fairly reasonable period, I am prepared to withdraw my objection.
In doing so I want to mention that in this particular section we were not holding the section objectionable. Our view is purely and simply that there should be a definition of the term "local authority" and that the definition in this case and for the purpose of the section should be "the elected representatives".
It may be well to mention that, while we are anxious that the situation should be rectified as soon as possible, the main Act has been the law of this land since 1941, and if we have been able to tolerate the position for 14 or 15 years, I think it reasonable that we might manage to struggle on for I hope not more than a few months under the present position, again on the clear understanding that what we do here will not be used against us at a later time.
Major de Valera
Will the Parliamentary Secretary give the Deputy the assurance?
I would have some sympathy for the point of view expressed here by the Minister on these amendments if the general setting were different. Before Parliament dissolved certain proposals were being discussed here dealing with the managerial system and the making of certain amendments in the law in regard to the segregation of functions as between the elected body and the manager.
I cannot say myself from memory whether or not the present Minister gave the House and the country any idea of what his attitude was on the Act itself and towards the amendments which were proposed then. Again, from my recollection, I can say that the amendments proposed here provided, maybe not entirely, what is sought in these amendments and went a considerable distance to meet the point of view expressed here.
For example, one of the amendments proposed sought to ensure that a county or city manager would not have the power or right to create a new office without the approval of his local body. Again, speaking from memory, I think the amendments also proposed that the local authority, the elected body, would have the right of determining questions of remuneration but would not have the ordinary control that is exercised over staff. They would have a right to say what the rate of remuneration should be
I take it that it was because the Dáil was dissolved these proposals were dropped and a tour was made of the local bodies seeking information as to what exactly these local bodies were anxious to secure in the way of amendments to the law as it stands, and that amendments such as the ones we are now discussing were proposed by Deputies who felt that in the Bill, as it was before the House, they at least had something.
When the Parliament reassembled, a new Government was elected and they proceeded to drop the proposals that were there for reasons unknown to me—I am not questioning them in any sense—and they proceeded along these lines. Nothing aggravates me more than the line of argument which was advanced here since we proceeded to discuss this Bill.
We have put up with this for ten or 12 years. The provisions of the Act of 1941 which it is proposed to amend, have been there all these years. Those of you who are now seeking amendments of them had all that time in which to amend them. Surely that line of argument is childish? It is childish inasmuch as Governments are elected, I take it, to make changes. There is surely no obligation on a Government such as the one we have to-day. It was not brought into existence for the purpose of implementing the policy of its predecessor. In this House, in the course of this short discussion, in the country, and, indeed, in correspondence that I notice from time to time passing to local bodies all over the country, you would think that the present Government and some of the present Ministers were really elected to implement Fianna Fáil policy. I do not expect them to and, therefore, irrespective of what the Minister's predecessor did, the Government should have a view on these matters.
If it were a matter that no proposals to amend the existing managerial laws were being discussed; if he had not gone to the country to meet local bodies and if the amendments had not been publicly discussed, I would agree entirely that the Minister would be entitled to say: "I will undertake to introduce an amending Bill but it is not my intention at this stage to tell you what the proposals will contain." If the circumstances were different, that would be an understandable attitude but because of the present setting, the fact that proposals were here which went a considerable distance to meet the amendments we are now discussing, that members of the Opposition, now members of the Government, expressed their opinions as to the inadequacy of these—they have had the added advantage of public discussion as to what the elected representatives wanted—then if the Minister said he approved in general of the principle which it is sought to establish in these amendments, my general attitude would be to ask the House to give effect to them.
Major de Valera
Will the Minister give us the assurance Deputy Larkin sought?
I was going to mention that point. Deputies opposite appear to forget the fact that this Government was formed on a 12-point programme. Point No. 12 was:
"To restore democratic rights in respect of local government by amending the County Management Acts and give to local authorities greater autonomy and effective power in local affairs. To provide for employees of local authorities a scheme of conciliation and arbitration."
That is one of the 12 points in the inter-Party programme and they intend to implement every one of the 12 points.
There was a very interesting discussion and Deputy Briscoe brought up very many good points. It is quite clear that the difficulty at the present time is that members of local authorities are faced with the problem of reading in the newspapers that so many more officials were appointed. This leads to great dissatisfaction in various local authorities. Many have expressed that view over a long period. Deputy Briscoe made his point very clear in that respect. Against that, I think we must of necessity get direct control. Deputy MacCarthy mentioned that he considered it would be more appropriate to deal with the matter under this Bill.
I wonder would Deputy Briscoe admit that all these difficulties and problems in regard to reading in the newspapers about the appointment of new officials—information that members of local authorities in their wisdom believe they should get—have arisen not out of a Local Government Act as such but out of the County Management Act? Deputy Briscoe considers it fantastic to adopt the attitude of saying that we have got to have this now. I agree with Deputy Smith in regard to one point in respect of the attitude of those in Opposition with those in Government. We will get nowhere by adopting the attitude of asking, "Why did you not do it?" The Minister for Local Government tells us that a Bill is ready to deal with a problem directly related to all the problems that Deputy Briscoe spent all his time telling us about this evening. Deputy Briscoe may not have these problems in Dublin. If he speaks about the difficulties in regard to the appointment of an architect or some such matter, I do not know what happens in Dublin but we have been able to appoint outside architects in Cork. No doubt, this problem exists in Dublin with the corporation. It must be directly related to the overriding factor—and that is the County Management Act. I consider that, in itself, this Bill is of tremendous importance. It is true that we may have to make amendments to it. However, we are more than anxious to get at the kernel of all this trouble in local authorities, that is, the County Management Act. There, and there alone, in my opinion, lies the root of the trouble. We come here and openly ask the Minister to realise the implications of the problems that beset us under the County Management Act. If that fact is fully understood, then perhaps we may know where we are— rather than getting something now and then hearing talk afterwards to the effect that an amendment of the County Management Act is coming in.
I should like to see that government by the people, for the people is just as fundamental in local government as it is in national affairs. That should be the fundamental basis of legislation. I should like to see that any departure from it would be only a kind of amending Act, setting up an executive, giving perhaps to somebody called the county manager certain functions either in cooperation with the elected representatives or acting in some affairs, perhaps, on his own responsibility as chief executive. That is the way it appeals to me and that is the way the matter should be approached. The fundamental basis of local government is the Local Government Act. If we have any faith or confidence in democracy, that should be the fundamental basis of the laws we make here. Then, let us amend them afterwards when we are considering the executive or administrative side which would be dealt with in the Managerial Act.
The first Managerial Act was put into force in 1929 for the city that I have, for a time, represented. We are not satisfied—that is the plain fact of the matter—with the way things have worked out in that regard. Though the elected representatives of the people may, from time to time, be criticised for the manner of their administration or for their decisions, taking all in all. I think the work they have done in the past to various generations has fewer defects than we have experienced under the managerial system. That is my personal opinion on the matter. I am very definite in the belief that we should get down to it and get a good Local Government Act, putting in it government by the people for the people—that this question of talking about a Managerial Act afterwards would be only a side issue and that it should not be made the main Act. Somebody is talking about giving more power to the public representatives. That is not the fundamental thing. The fundamental thing is to give less power to the managers and more power to the people. I think we are approaching the whole thing from the wrong basis, fundamentally. I would suggest to the Minister that he ought to reconsider the whole matter and deal in this Bill with the fundamental things applying to local government.
Major de Valera
The Minister has already given us an assurance that a County Management (Amending) Act will be law by June next.
We hope so, unless there is obstruction.
Major de Valera
Will the Minister give Deputy D. Larkin the assurance which he seeks?
I have already done so.
Major de Valera
That these amendments will be included in the County Management Bill?
That is not the assurance for which he asked.
I read out point No. 12 of the inter-Party programme. I give the assurance that we will implement every one of the 12 points.
Major de Valera
Is Deputy Larkin getting the assurance which he sought, or not? He asked for a particular assurance. He is entitled to an answer. Can the Minister give him a straight answer?
I have given him a straight answer.
Major de Valera
We might quarrel about the word "straight."
I want to say that, for a long period as a member of this House, I have had great personal respect for Deputy MacCarthy and many, but not all, of the many things he advocated in this House both when he was on the Government side and when he was in opposition. However, Deputy MacCarthy was not in the House when Deputy Briscoe claimed, rightly or wrongly, that if his Government had remained in office it would have brought in this Bill.
Which Bill?
If that is so, I wonder what Deputy MacCarthy would have said under such circumstances. Deputy D. Larkin asked for a certain assurance — and it is not the assurance as interpreted by Deputy Major de Valera. The Minister gave him that assurance. The Minister has already, both outside the House and inside it, to-day included, given a positive assurance that a County Management (Amending) Bill, as provided in the inter-Party programme, would be introduced during this session and, unless it meets with the deliberate obstruction of the Opposition of to-day, it will be the law of this land before the next local elections.
Like the Health Act? Will it be treated the same way as the Health Act was treated?
So that there will be no misunderstanding, I want to say that this is what I asked. I asked if I, as a Deputy, agree to withdraw or not to press the particular amendment on Section 10, will the Minister give me an assurance that, as and when the County Management and City Management Bills are being brought before this House, the House will not be told at that juncture, in relation to a similar type of amendment, that he cannot accept it because of the fact that the amendment was not pressed when it was being dealt with?
I give the Deputy that assurance.
Very well.
For the second time in this House to-day, a gross misstatement has been indulged in by two Deputies. I did not wish to take notice of it when Deputy O'Higgins first mentioned the matter, but now Deputy Davin comes along and says that I stated in this House that if Fianna Fáil had come back as a Government this Bill would have been introduced by that Government.
You did not use those words.
I said no such thing. What I said to the Minister was that I was satisfied he was not introducing this Bill as Government policy — that he was introducing the Bill on behalf of the Custom House and that it had been a long time in preparation.
I think I can speak for my predecessor and myself when I say that we use opinions of our own.
I did not say it would be introduced by the Fianna Fáil Government because my attitude at this minute would be the very same as it was before, when the County Management Bill was going through. I am not satisfied, as one of the signatories to this amendment, with Deputy D. Larkin's assurance. It is no assurance to the City of Dublin or to any local authority that the principle will be accepted. Deputy D. Larkin asked the Minister for an assurance that, if these amendments are now withdrawn, it will not preclude us from reintroducing them on the County Management (Amendment) Bill, probably with the same fate as they appear to be going to get to-day. I am very strong on this point. I do not know what the rules of the House are and whether, if four Deputies sign an amendment jointly, any one of them can get up and withdraw without the consent of the other three.
The Iron Curtain.
I intend to stick to the amendment.
You are doing that for the purpose of political propaganda.
I think it must be clear that I avoided, as far as I could, any political approach to this matter. I stressed that my only concern was that of a local representative. I pointed out that I believed in association with my colleagues and in agreement with them. Deputy Desmond agrees with some of the points I have made. He says: "We have lived so long under this, we can live a little bit longer."
I did not. You are a topper at misrepresenting facts.
Deputy Desmond said we were going to get in the near future a Management Act. I do not know what we will get in it. The Minister is giving no undertaking and I do not blame him for not giving an undertaking. But I cannot be blamed if I am not prepared to accept in the dark something which might have me committed in the future and with which I am not in agreement.
Deputy Smith referred to No. 12 of the points of the political programme of the inter-Party Government, that of restoring to local representatives control over their local affairs. It says quite definitely that that will be implemented. If that is so, surely the Minister can now say: "This limited bit of restoration can be accepted in principle but I would like you to wait until we have put the other thing through, and I assure you that part is accepted in principle." I do not intend to go as far as Deputy Larkin. I do not intend to go as far as accepting permission to reintroduce an amendment. That is all Deputy Larking is asking for.
No, it is not.
That is the assurance the Deputy is asking for. I am not satisfied with that assurance. When we come to the other amendments I take it that we can refer specifically to them. I only dealt with them in a general way.
I understood all these amendments were being discussed together.
Yes, I agree that was so but when we come to the specific amendments there may be some particular point.
The Deputy had better make the point now. They are all interrelated and we would have the whole argument over again.
There is one amendment which I do not agree is quite interrelated.
The greater includes the lesser and amendments Nos. 24 and 26——
Surely amendment No. 26 to Section 28 is not going to be taken in as part of this.
Amendments Nos. 24 and 26.
I do not think it is fair to say that amendment No. 26 can be argued in the same way as the rest.
I am prepared to allow the Deputy to make any particular point he wishes to make in respect of amendment No. 26 on this.
Now?
Yes, because otherwise you would open the debate again. The Deputy may make the point now.
I wonder what Deputy Larkin's attitude will be to this. Amendment No. 26 to Section 28 asks the Minister to accept a provision which will enable the local authorities to have the right of preparing the terms and conditions of a proposed appointment. After that, it goes to the Local Appointments Commission, and so on. The local authority representatives want to get a certain official to perform certain special duties and having reached agreement that such a person is necessary they want to have his appointment. They are debarred from having any say whatever at the present moment in the terms and conditions of such appointment. Will the Minister agree that that is a very serious request and that the non-existence of that right for the local representatives is, in fact, a very serious situation.
Why did you tolerate it so long?
I do not understand the mentality of some of the Deputies. Something is either right or it is wrong. If, in the past, something has been carried out which some of us to-day agree is wrong, we will not remedy that wrong because it was carried out in the past? Is that the attitude of mind we are to take in this House? We learn by experience and we have learned from experience that the position is not as we would like it to be in the Dublin Corporation under the Managerial and Local Government Acts. Deputy Desmond said this was a Local Government Act and had nothing to do with management. The whole thing is interwoven. May be the Minister will say at this stage what he thinks about amendment No. 26 to Section 28.
I think it is more appropriate to the County Management Bill.
And Deputy Larkin is going to be satisfied with that situation, that we can carry on. We have a commission now to reintroduce this amendment on the County Management Bill and the Deputy is satisfied with that?
And it will not be treated as trivial. I think that is part of the undertaking I gave.
What I am looking for — and I was hoping Deputy Larkin would support me on it; I do not know what the other Deputies who are signatories to this amendment will do — is some elaboration of political platform point No. 12.
You will get it all on the Bill.
Political platform point No. 12 as read out by the Minister, I take it, is a promise now to this House and not to the electorate——
It was a promise made to the country.
——that full powers would be restored to the local authorities and it would not be like a lot of the other promises that were made.
Let the Deputy not misquote me. I did not say any such thing.
The Minister read it out. Perhaps he would read it again.
I will, if you allow me.
I think we should not go beyond the terms of the amendment.
If the Deputy wishes me, with your permission, I will read it out.
So far as point No. 12 impinges on Section 28 or amendment No. 26 it may be relevant, but travelling widely is not permissible.
I would be satisfied with reading it out.
I have been misquoted. I propose to read this out to clarify the position:
"To restore democratic rights in respect of local government by amending the County Management Acts and giving to local authorities greater autonomy and effective power in local affairs."
We shall see what that will be.
Question put.
The Committee divided: Tá, 44; Níl, 66.
Tá
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neil T.
- Brennan, Paudge.
- Breslin, Cormac.
- Briscoe, Robert.
- Burke, Patrick J.
- Butler, Bernard.
- Carter, Frank.
- Colley, Harry.
- Collins, James J.
- Corry, Martin J.
- Crowley, Honor M.
- Crowley, Tadhg.
- Cunningham, Liam.
- Davern, Michael J.
- Derrig, Thomas.
- de Valera, Vivion.
- Egan, Nicholas.
- Flynn, John.
- Flynn, Stephen.
- Geoghegan, John.
- Gilbride, Eugene.
- Gogan, Richard.
- Harris, Thomas.
- Hilliard, Michael.
- Kelly, Edward.
- Kenneally, William.
- Killilea, Mark.
- Lahiffe, Robert.
- Lemass, Seán.
- Lynch, Celia.
- MacCarthy, Seán.
- McEllistrim, Thomas.
- Moher, John W.
- Mooney, Patrick.
- Moylan, Seán.
- Ó Briain, Donnchadh.
- O'Malley, Donough.
- Ormonde, John.
- Ryan, Mary B.
- Sheridan, Michael.
- Traynor, Oscar.
Níl
- Barry, Anthony.
- Barry, Richard.
- Beirne, John.
- Belton, Jack.
- Blowick, Joseph.
- Burke, James J.
- Byrne, Alfred.
- Byrne, Thomas.
- Carew, John.
- Casey, Seán.
- Coburn, George.
- Connor, Johnny.
- Coogan, Fintan.
- Corish, Brendan.
- Crotty, Patrick J.
- Crowe, Patrick.
- Davin, William.
- Deering, Mark.
- Desmond, Daniel.
- Dillon, James M.
- Dockrell, Maurice E.
- Donegan, Patrick S.
- Donnellan, Michael.
- Doyle, Peadar S.
- Dunne, Seán.
- Esmonde, Anthony C.
- Fagan, Charles.
- Finucane, Patrick.
- Giles, Patrick.
- Glynn, Brendan M.
- Hughes, Joseph.
- Kenny, Henry.
- Keyes, Michael.
- Kyne, Thomas A.
- Larkin, Denis.
- Larkin, James.
- Lynch, Thaddeus.
- MacBride, Seán.
- MacEoin, Seán.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Madden, David J.
- Manley, Timothy.
- Morrissey, Dan.
- Mulcahy, Richard.
- Murphy, Michael P.
- Murphy, William.
- Norton, William.
- O'Carroll, Maureen.
- O'Donnell, Patrick.
- O'Donovan, John.
- O'Hara, Thomas.
- O'Higgins, Michael J.
- O'Higgins, Thomas F.
- O'Reilly, Patrick.
- O'Sullivan, Denis J.
- Palmer, Patrick W.
- Pattison, James P.
- Reynolds, Mary.
- Roddy, Joseph.
- Rooney, Eamonn.
- Sheldon, William A.W.
- Spring, Dan.
- Sweetman, Gerard.
- Tully, James.
- Tully, John.
Tellers:—Tá: Deputies Briscoe and Corry; Níl; Deputies Doyle and Spring.
Amendment declared lost.
That decision governs amendments Nos. 5, 15, 24 and 26.
Section 10 agreed to.
Section 11 agreed to.
SECTION 12.
I move amendment No. 3:—
In sub-section (1), page 7, line 16, to delete "made" and substitute "communicated to the officer".
I am very much indebted to the Minister for accepting my suggestion in the way in which he has accepted it in this amendment and I withdraw amendment No. 4, standing in my name.
Amendment No. 3 agreed to.
Amendments Nos. 4 and 5 not moved.
I move amendment No. 6, standing in the names of Deputies James Tully, J. O'Connor, and myself:—
To add to the section a new sub-section as follows:—
(3) Section 10 (2) of the Act of 1941 is hereby amended by the insertion of the words "or by a decision of any local authority under which he previously held office in relation to his remuneration in that office" before "may appeal".
It is intended to cover the position of an official who was formerly employed by one local authority and transferred to another local authority. I think it is an amendment which the Minister might well accept. Its purpose is to enable an officer to appeal even if transferred from the service of one local authority to another. I do not know if the Minister appreciates the point it is intended to cover.
I do.
I imagine it would come up only in very rare cases. It is really an extension of the principle which the Acts make applicable to officers of a local authority to cover those cases where an officer is transferred from one local authority to another.
The provision is intended to cover a very narrow type of case and I am not aware that this matter has given any kind of trouble. If the Deputy would subsequently communicate with me and give me some evidence of the need for this provision the matter could be further considered on the Report Stage. I am not aware that there is any demand for it.
It would be very rarely that a case would occur. It is just intended to cover the odd case that may arise and it is an extension of principle the Minister is already embodying in the Bill to cover cases of officers transferred from one local authority to another.
I will consider it between this and the Report Stage.
I would say the number of officials affected would be negligible, maybe three or four in the year. It is merely extending the principle which the Minister himself recognises, to those officials who are transferred from one local authority to another.
I have discussed it with union officials and many other organisations, but no person pressed for it.
Actually, it is union officials who are very anxious to have that inserted to cover the exceptional case where it may arise.
The Deputy will appreciate that it will be governed by the six months' time limit within which he may appeal, under another section.
I am not making myself clear at all. He can only appeal against his own local authority, not against another local authority. If he is transferred during that period, he loses his right of appeal. That is a point I want to cover.
The point now made by the Deputy did not really strike me before and it has never been made to me before.
Possibly if I could have a word with the Minister between now and Report Stage, we could go into detail on it.
I would suggest that.
Amendment, by leave, withdrawn.
I move amendment No. 7:—
To add to the section a new sub-section as follows:—
(3) Any regulations made by the Minister under Section 4 of the Act of 1941 prescribing the manner of appeal by an officer to the Minister shall, if they require the officer to give or send a copy of his appeal to the local authority, also provide that copies of any statements in relation to the said appeal submitted to the Minister by the local authority shall be given or sent to the officer.
This amendment is to ensure that, where an appeal is made to a Minister by an official, the reply to the allegations, made by the county manager probably in most cases, will be communicated to the official so that he will know the case which is being made against him and which he has to meet. As a matter of course at the moment, I understand, the county manager is supplied with the full particulars which the official concerned may forward to the Minister and this amendment is intended to ensure that, likewise, the official will be made aware of the answer to his complaint. I think that, in ordinary fairness, this is an amendment which the Minister might accept.
I will give the Deputy an undertaking that a provision will be inserted in the regulations which will be made when this Bill is an Act governing this point. The undertaking which I now give in substitution for the amendment is that it will be written into the regulations.
I accept the Minister's undertaking at once. The only difficulty I see about that is that a subsequent Minister might alter that regulation and it would therefore be more satisfactory to have it embodied in the Bill.
I understand that it is the practice never to alter regulations, but possibly it might be. I understand that the purpose of the amendment is already covered by practice in the Department. We are now going to embody it in the regulations. It is an unwritten practice which we will embody in the regulations.
I do not want to challenge the Minister's statement in that regard, but it has been represented to me that the practice is just the opposite and that no official is ever told what the county manager says about him, while the county manager is told what the official says to the Minister about him.
Not always.
I can assure the Deputy that other Ministers with whom I have been in consultation have agreed to adopt the suggestion we have made of embodying it in the regulations.
I have that undertaking from the Minister? It will be embodied in the regulations and not taken out of the regulations?
I understand that, in the past, it may not have been the practice of other Ministers to follow in the footsteps of local government, but they have given an undertaking to do it from now on. The different Ministries will be in agreement on the regulations and on having this practice incorporated in them.
Does the Minister not see the difficulty that Governments do change?
I do. I also see the difficulty in submitting to county managers the replying statements of some of the appellants, that it might prejudice them in the future, but when it comes to a clear-cut issue, I think there should be discovery, all cards being put on the table. In the preliminary stages, however, it would not be sufficient, unless there was a prima facie case established against the particular officer, so that it would be much better to provide for it by regulations than by legislation.
The Minister has accepted the first amendment, subject to his own alteration to which we agreed. Would this section not now be covered by that? If the Minister makes a regulation and if it is to be altered by somebody afterwards, will it not appear on the Table of the House, according to the amendment which the Minister has accepted?
It certainly will.
That answers the point then.
No. These are regulations made under Section 4 of the 1941 Act. These regulations are not laid on the Table of the House.
It will be tabled — you can rest assured of that.
The Minister would not be bound to table it even under the amendment he accepted earlier, because these regulations are made under the 1941 Act, which does not require the Minister to table the regulations.
I propose to move an amendment to Section 14 later. It appears on the typewritten sheet and provides that every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made.
That is under Section 14?
Yes.
The Minister accepted the first amendment in relation to Section 4, which gives the same kind of undertaking for the whole Bill.
Major de Valera
I am in the unique position, for once, of agreeing with Deputy MacBride, who, I am afraid, is right. The position is that under Section 4 the regulations are limited to such regulations "as are referred to in this Act as prescribed or to be prescribed". It is not very clear that these would be "prescribed or to be prescribed"—that it is a function of that nature. The amendment accepted by the Minister refers to regulations under that section and it may be — I do not know; it would depend on whether the regulations in the particular case have to be laid on the Table of the House — that there may be a drafting loophole to be covered there, as Deputy MacBride suggests. On the other hand, the Minister has told us that it is his intention to cover it and I think we can leave it to him. He has been very frank in saying that he intends to cover it and no doubt he will have regard to that possible drafting difficulty.
I have given the undertaking.
Amendment, by leave, withdrawn.
Question proposed: "That Section 12, as amended, stand part of the Bill."
Major de Valera
There is one small matter which arises on the section. In sub-section (1) (6), there is a right of appeal within a period of six months. It sets out:—
"An appeal under sub-section (2) of this section shall not be brought after the expiration of six months after the decision is made."
We all know that the six months' period in regard to local authorities in another connection has been a bone of contention and was recently disposed of here. I suggest to the Minister for Report Stage that a very simple amendment would give him elasticity here — the insertion of the words "save with the consent of the Minister." That would provide a safeguard against the law working harshly and mechanically against an appellant who might have missed a very short period. I know that it is giving the Minister unwanted jurisdiction, if you like, and I can see his objections to taking it on, but nevertheless I ask him to consider it.
You mean the permission of the Minister obtained before the expiration of six months?
No — after.
Major de Valera
If the Minister thought that it was a proper case, he would allow the appeal, even though the six months' period had elapsed.
We shall consider it.
Section 12, as amended, agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."
I should like a further statement from the Minister to clear up what this section means. The section states:
"The references in Sections 13 and 16 of the Act of 1941 to Part II of that Act shall be construed as including references to Part III of the Act of 1946 and this Chapter of this Part of this Act."
It is very confusing and I should like to hear the Minister if he could clear up the matter.
I find that the more I get into this Bill the more impossible it is to see what it means. On the previous section, we discussed an amendment by Deputy MacBride in which Deputy MacBride wanted to make sure that regulations made by a particular Minister might not be altered adversely to officials by a succeeding Minister. We have got an assurance from the Minister that that will not happen but this section proposes to bring into the Bill a power which does not exist in it, but which exists in other Acts, namely, that notwithstanding any regulations you make you have power under the 1946 Act to revoke the whole of these regulations. Under the previous section we have talked in one way; now we are going to talk the other way. I frankly do not understand it. That is why we want an elucidation of the section and that is why the section is put down on the list of amendments as being opposed. The Minister has already stated that when regulations are made they are not usually altered. If that is so, why do you want power to alter them?
Certainly the section is a monstrosity because nobody could find out what it is intended to mean.
Section 13 of the 1941 Act gives the appropriate Minister power to revoke or amend any Order, regulation, direction or declaration made under the Act. That is an essential power. Regulations have been adopted from time to time in changing circumstances or needs. The reference to Section 16 of the Act of 1941 is purely a drafting one. Obviously, all this law must apply to existing officers if it is to be of any use at all. The section is purely a drafting one.
What is it intended to cover?
It is intended to cover existing officers as well as other officers.
Does it give power to alter the regulations?
It does; they must be altered to suit changed circumstances.
The regulations under the 1941 Act should not be altered.
In regard to existing officers?
The hidden meaning of this section is to enable the Department to alter the regulations in regard to existing officers, in other words, to repeal the effect of one of the safeguards they had under the Act of 1941. Is that not right?
Possibly that is so. It is merely to bring existing officers into line with the changing times and to make regulations governing them.
Major de Valera
I know the Minister does not like it and I sympathise with him. We know from the Minister's own utterances in the past what his feelings are. The Minister is a lawyer and he appreciates the dangerous implications of this as other lawyers do. I have every sympathy with the Minister but I object to the section on the grounds of its drafting. In the past I know — and I can go back to 1946 — there were people on all sides who would agree that his type of legislation by reference was bad; it is dangerous. It is very difficult for Deputies to find the full content of its meaning. There is absolutely no reason why trouble should not be taken to redraft the whole provision properly so that it would be intelligible, because every lawyer, anyway, knows that it is by the concatenation of a multiplicity of sections, that you can make it impossble to achieve things that were clearly the intention of the Legislature when the legislation was put through. Anybody who has been in court knows how it can work. I remember personally raising this in connection with regulations under the Defence Forces Bill, where the thing became an abuse. I would strongly urge the Minister that the redrafting of the section should be considered.
Let us read Section 13 of the Act of 1941. It says:—
"Every power conferred by any section of this Part of this Act to make any Order, regulation, direction or declaration shall be construed as including a power to revoke or amend any Order, regulation, direction or declaration made under such section."
First of all, there is a very serious extension of legislation by Order or delegated powers of legislation in this. It is a big departure and a big step to enable the Minister to legislate at all by Order. It is a further, a greater, and perhaps a more dangerous thing to give him the flexibility of repeal, and to mend his hand, by regulation. Naturally, when I say "the Minister", there is no reference to the present holder of the office. The power given by that section is limited to Part II, because it refers to "this Part". If I am reading the Act correctly that Section 13 contains no Part II, but as this power is related to Part II, that extension of the power of legislation given to the Minister is restricted.
Now, this section is extending this power to Part III of the Act of 1946 and all that is in the Act of 1946 —"this Chapter of this Part of this Act". It may be necessary to do it. I am not arguing that point at the moment. I leave it to people of experience to argue when it is necessary to do it, but let us be quite clear on what we are doing. We are taking another step in giving power to the Minister, who is an executive, and through the Minister, in practice, to the officers of his Department, to county managers who are rapidly being integrated in accordance with the scheme, as the general government of the State. There is a further tendency there to centralisation. We are giving them further powers of legislation and flexibility in legislation by giving them power to repeal their own legislation and, therefore, to substitute therefor new legislation. That may be argued; for my part, in raising this I merely want to stress that we are doing this, that we should not do it to any greater extent than is absolutely necessary and that we should understand what we are doing.
I think we should ask the Minister to specify particularly what is involved in these sections. This type of legislation by reference is really objectionable from our point of view, from his point of view, and from the point of view of the convenience of the House.
As I said on the Second Reading of the Bill no person deplores legislation by reference more than I do, but the Minister is in the hands of the parliamentary draftsman. This section is a legal safeguard to ensure that the provisions of this Part of the Bill will apply to existing officers. It also gives the appropriate Minister power to revoke or amend any regulation made by him in the past. As the Deputy is aware, we are endeavouring to consolidate local government law in the very near future and I am advised that this Bill is essential, particularly sections like this one, for the consolidation of that law, and that is one of the reasons why this has been put into the Bill.
Major de Valera
Essential in what way? We can consider a thing as essential in two ways. It may be essential from the legal point of view, but frankly I cannot understand that; it may also be essential from an administrative point of view on the ground that if one does not get these things in now one will never get them in. We are not prepared to agree that all the things that are thought essential from an executive angle are desirable and that is testified to by the fact that so many Deputies have spoken on behalf of the public and their representatives. I hardly think the second unworldly construction I have put on the Minister's statement would be sufficient reason for the passing of this Bill.
I do not know if the Minister has fully adverted to the position. As I understand it, the purpose of Section 13 is to extend the provisions of Sections 13 and 16 of the 1941 Act and Part III of the Act of 1946.
And this Part of this particular Bill.
What does Part III of the 1946 Act deal with?
I understand it deals with officers and servants.
Question put and agreed to.
SECTION 14.
I move amendment No. 8:—
To delete lines 32 and 33.
I must join in the protest that has already been made in relation to this type of legislation. It is really appalling to have legislation by reference introduced in this manner. It means that nobody, be he a lawyer or anything else, can ever find out the full effect of legislation. If it is necessary to amend a section or sub-section of an earlier Act why not enact the whole section comprehensively. This is an appalling way in which to legislate. I know the Minister is not responsible for it, but it is a bad, slipshod habit into which the draftsman has fallen. It is deplorable that we should be faced in this House with Bills amending earlier legislation by reference indirectly, making it practically impossible for anybody to discover what the effect of the law is.
Surely it should be our aim to simplify the law and not to make it more difficult for either legislators or the public. Here at least members of the Oireachtas have the earlier statutes available to them. Members of the public have not, and they cannot afford either the time or the money to buy perhaps ten different volumes of statutes in order to find out what the law is, but nevertheless, we expect them to keep the law. I know this is not the Minister's fault and it is not fair to blame him, but I appeal to him and to the other members of the Government to set their faces firmly against their officials and the draftsman producing legislation of this type.
The purpose of this amendment is to delete paragraph (k) of this new sub-section which is to be introduced into Section 19 of the 1941 Act. Paragraph (k) provides a number of restrictions on holders of offices engaging in any other gainful occupations. Possibly there is a very good case to be made against officials engaging in other occupations in addition to their official duties. I am not sufficiently familiar with the type of case which occurs, but I know that in many areas officials have to pursue other occupations. It may be that such a practice is open to abuse and should be stopped. I do not know. I would like to hear the case made against it. I am not sufficiently familiar with conditions to know whether it is an objectionable practice or whether there are certain merits in it. I imagine a case can be made both for and against it.
I put down this amendment because I found the Minister already had ample power to deal with the position under Section 39 of the 1946 Act. That seems to me to give the Minister all the powers he requires.
The Deputy will appreciate that we are repealing that section of the 1946 Act. He will find it in the Schedule.
I had not adverted to that. Why is it repealed?
The section in the 1946 Act deals merely with an officer. This proposed amendment will deal with a class of officers; regulations may be made governing a class of officers and not individual cases. As a matter of fact, Section 39 was very, very rarely invoked but it has been suggested to us that if regulations are made governing a complete class that will be more beneficial than the old Section 39, under which individuals were dealt with.
The intention is to make this applicable to classes.
Yes.
Has the Minister any views for or against, or can he give any indication of the type of class he visualises?
It could refer to town surveyors, some of whom in former years were paid very small salaries. It could apply to county engineers and housing inspectors. These are a few of the classes in relation to which regulations could be made.
Are there not some merits in a number of cases, say, in a small urban area, for paying a small annual fee to a local engineer or architect to do the work rather than to employ a whole-time official? Is there not a case to be made in favour, in certain cases, of employing local engineers at a small nominal annual fee as against the employment of a whole-time engineer?
There will be no regulations made prohibiting such an arrangement. I am merely giving an idea or suggestion as to the class of people. It would not be suggested that a whole-time engineer would be employed for small towns, say, of 2,000 or 3,000 population.
Major de Valera
What is the advantage of breaking up into classes?
Because we found it was very difficult indeed to deal with individual cases — most difficult.
Amendment, by leave, withdrawn.
I move amendment No. 9:—
To delete lines 39 to 48, inclusive.
This is an amendment to delete paragraph (m) of Section 14. Again it occurred to me that both the Minister, county manager or managers have already adequate powers of suspension and that this provision was really unnecessary, and in some cases might operate unfairly on the official concerned. Has the Minister not already got adequate powers of suspension?
I take the opposite view to Deputy MacBride on that. We studied this particular thing and, as far as the Dublin Corporation are concerned, we welcome sub-section (m) because what we read into it is this: under the present law, if a manager suspends an official he must send on the suspension to the Minister and it may take six months before the Minister's decision comes back. During that time the person is suspended, possibly for what might be a comparatively trivial offence. This part of the section, as I understand it, will enable a manager to say to a man in respect of some trivial offence: "I am suspending you," and he may be able to recall him within a week because the circumstances of the offence might not warrant anything more serious than that. The Minister can correct me if I am wrong but, as we read this, it is to enable a manager to deal with a case expeditiously and avoid undue hardship to a person whom the manager may, without proper consideration, suspend and cannot recall when he realises that the offence is not so serious.
That is correct.
Major de Valera
I think Deputy Briscoe has made the strongest case possible for deleting the sub-section. Is Deputy Briscoe serious when he suggests that the manager may have made a mistake and that this is to enable the manager to mend his hand? I am doing Deputy Briscoe an injustice when I make that suggestion. I, for one, am convinced that there is very great need for deleting this particular sub-section.
Just consider the case. Are we to put into the hands of a county manager — I ask all these people who are talking about the powers of the local authorities — the right summarily to suspend a man for seven days and deduct pay for seven days, to use Deputy Briscoe's words, for a trivial offence? There may be grounds for amending the law as it is in the case which Deputy Briscoe has pointed out where a suspension might go on for six months. That is another matter. That position may well want to be amended but, as I conceive it, not by this provision giving summary powers of this nature without any protection that I can see for the employee concerned.
County managers, like their employees, are human. In the case of the Army, why did we pass, and why have Parliaments found it necessary to pass in the case of defence forces and similar bodies, very stringent codes of discipline and why, when putting through the Defence Bill in the previous Parliament, did we devote so much time to the protection of the individual against constituted legal authority?
Remember, the county manager is in a somewhat similar position. He has all the authority of the State and the law behind him. He is in such a strong position that certain safeguards are necessary.
I do not want to go to the extent of saying that in appropriate circumstances there should not be power for short time suspension of an offending or a remiss employee or officer but what I do think is that to put it in a form that is capable of being an arbitrary and summary decision on the part of one human being in authority, giving him credit for the best will in the world, is to say the least of it, sloppy legislation on our part.
If the Minister considers, for, say, the reason Deputy Briscoe first advanced, that something supplementary to the present law is necessary because of the length of time, then by all means let the Minister furnish his provision but let the Minister furnish some provision that will ensure that there is some safeguard for the person who is the subject of the action that is here.
At this point I might make a suggestion, perhaps, to the Minister. Might not this be a case where the Minister could easily decentralise his own authority as presently existing to the elected body? Might this not be a case for reference to the elected body or to a committee of the elected body which could be speedy and efficient and give the safeguard of another decision in the matter? Would this not be an appropriate case for providing a power in the elected body?
You must remember that they only meet about once a quarter in some places.
Major de Valera
All right. I was just going to come to that. I believe that in some previous Bills—I forget whether they were made law or not — we provided for some committees or groups who would function just to meet that argument. I forget the exact Bill but it was one of the Local Government Bills.
And pay them travelling expenses — some of them travelling 60 miles.
Major de Valera
One of these, the chairman or somebody else like that will be available pretty quickly, as quickly as the Minister, and there should be some method of having some check. Frankly, I think this section as it is, baldly, is objectionable, that Deputy Briscoe has given us a really powerful condemnation of it and that some safeguard for the person who would be the subject of such disciplinary action is necessary.
I disagree entirely with the approach of my colleague, Deputy de Valera, to this.
I would like to say that there is some case to be made for deleting this sub-section. The strongest thing one might say about it is that it is difficult to understand why a trivial offence should take six months to investigate in the Department. Why it should be necessary to have to wait six months for a decision on a trivial matter is something that I cannot understand. But I do think that there is a danger, as Deputy de Valera has pointed out — it is a complete break from precedent — in giving the manager powers to punish an officer without any redress whatever by that officer. It is a section, one could easily conceive, in which the powers which the county manager might get might on occasions be abused. I do not imagine that they would be generally abused but, nevertheless, there is a danger of occasional abuse and the temptation is there. County managers are human beings. It is putting great power into their hands. I suggest that the remedy might lie in the suggestion that the Department set aside special officers for minor offences. That would help to expedite a decision. If the employee or the officer is suspended for a week, there is really no reason why the decision could not be given within a short period. I think the section should not be necessary. I suggest that the Minister might consider these few remarks.
As one who has a practical knowledge of a local authority, I would advise the Minister to stand firm on this whole thing. Where an officer is suspended for a mis-demeanour it is ridiculous to suggest that you give authority to the local councillors to sit in judgment as to his restoration or the continuance of his suspension. Is it not quite obvious to anybody who has sat in a local authority that it is pull — often political pull — which will make them give their decision irrespective of the merits of the case?
One has to approach this matter in a very general fashion and not particularise on it. Those of us who have knowledge of local authority administration know that it would end local government in the country if we left it to the decision of the local authority to suspend, restore or otherwise deal with the offender. If a particular job has to be done in an emergency and the manager orders it to be done; if the people are in peril and a particular officer decides that he will not do it or let anyone under him do it or defies the manager, are we to quote the power of the manager then? Are we to hold up the whole services for him? If we give him the authority suggested here, the officer can go to the councillors and get absolution for every offence he commits irrespective of the damage it does to the general control. As one who has 25 years' service on a local authority and who has studied this matter inside out, I say to the Minister: "Stand adamant on this section."
Major de Valera
In reply to a colleague, Deputy Kennedy, firstly, he may be perfectly right about the local authority. I do not intend to press that, but still there should be some safeguard. It should not be beyond the wit of man or the Minister to hedge this with some particular safeguard of the nature I spoke about. With regard to Deputy Kennedy's second point, the Deputy instanced a very serious case. If the situation was such as painted by Deputy Kennedy, then by all means the present existing system is adequate and there can be absolutely no objection to straight away suspending the man even if there would be a six months' delay. Again, the present system is perfectly adequate to deal with the serious case mentioned by Deputy Kennedy.
What we are thinking about is this. The present section is designed, in the words of Deputy Briscoe, to meet the trivial case. It is the trivial case that causes great injustice to an individual. Although it may be trivial from the point of view of the local authority or any other point of view, it can be anything but trivial to the individual concerned. It is because of these considerations that I would ask the Minister to meet the trivial case and to hedge it with some safeguard even if there is only to be a provision for appealing against the suspension or, if the suspension is subsequently found to be unwarranted, a provision for paying the man the difference of what he lost or make it up to him. Even if there is only a provision of that kind, it would do. Something should be included rather than leave the thing naked as it is. I do not think the remarks of Deputy Kennedy change the position. I freely concede that the suggestion I made at random of going to the local authority may be a bad one. Some safeguard is necessary. On Deputy Kennedy's second point, he has cited major matters and they are adequately covered by the present law. It is the trivial case we should consider. I would strongly urge on the Minister to consider that matter.
I am afraid that it was my own and Deputy Briscoe's fault that led to the discussion on this particular matter and led the House completely astray. The sub-section does not deal with suspension at all. It is really the parliamentary draftsman's fault. I think it is necessary to bring the House back to the actual amendment. Section 14 proposes to amend Section 19 of the Act of 1941 by substituting these five paragraphs for (j) of sub-section (1) of Section 19 of the Act of 1941. The House will probably be somewhat surprised to learn that paragraph (j) deals only with the provisions in the case of holders of office being ill, absent or incapacitated and provides for the performance by deputies of their duties. Paragraph (m) in this new Bill deals only, apparently, with the question of depriving somebody of the pay to which they would otherwise be entitled. The description used by the draftsman is "holders of suspensions from performance of duties." In other words, that is the name of the person involved, "holder of suspensions from performance of duties."
It provides that apparently the county manager may deprive them of their remuneration during the continuance of their suspension, the termination thereof and the forfeiture of any salary to which they might be entitled. I think that is what it means. It is one of the drawbacks of this legislation that practically nobody except the parliamentary draftsman really knows what it means. I think that even he does not. It merely empowers the Minister to make regulations which would debar the county manager from forfeiting any salary which an official might otherwise receive. It does not alter the principle.
Major de Valera
Is not that the whole point?
There is the danger that a manager might act hastily and deprive a man of his salary. He should have some right to be heard.
I should explain the position.
I am sorry if I have led the House astray.
I am asking the Minister to stand by this section. I am only making an ordinary layman's approach to this matter in the light of practical experience. A manager may want to punish an officer for an offence under existing regulations and the only way he can punish him is by suspending him. Under existing regulations and law, the only way he can punish him is by suspending him and that suspension cannot be removed until the Minister says that it may be removed. It may take six months. The result is that the manager will not suspend a person for what might be called an offence not justifying such a punishment. If he does not do something about the matter, the official concerned can become very slovenly and he can get worse and worse and worse. The purpose of this is to keep a certain amount of discipline so that the manager can say to an official: "You are worthy of being laid off for a week and I am going to lay you off for a week." He can do it himself and he can bring him back himself, without sanction from the Minister. That is as I understand it. It would improve discipline rather than disimprove it. For the serious offences, the present position still continues.
This section does not affect suspension at all.
I think that if the Minister would tell us where the power to suspend is, it might clarify the matter.
The Minister has endeavoured to do so but, so far, he has not got an opportunity.
I am quite willing to give way to the Minister.
I would refer the Deputy to Section 26 of the 1941 Act, which reads as follows:—
"(1) The appropriate Minister may empower the relevant local authority to remove from office with the consent of the Minister the holder of any office and may define the procedure to be adopted and the conditions to be fulfilled in relation to the exercise of the power so conferred.
(2) The powers conferred by this section on the appropriate Minister shall be exercised by means of regulations applying to all the offices in relation to which he is the appropriate Minister or to such of those offices as belong to a specified class, description, or grade.
(3) Every local authority to which any regulations under this section apply shall, subject to the terms of such regulations, have the powers of removal from office specified therein."
Major de Valera
Section 27 refers to suspension.
Does the Deputy wish me to read it? Section 27 of the Local Government Act of 1941 relates to suspensions and sets out the procedure. Section 10 of the 1941 Act will still give any official whose salary has been forfeited the right of appeal to the Minister, even on a short-term suspension. The Deputies appear to be perturbed about this forfeiture clause. However, the officer will have the right of appeal under Section 10 of the 1941 Act and, actually, what is embodied now in all these various sub-paragraphs (j), (k), (l), (m) and (n), could have been made by regulation under Section 26 of the 1941 Act.
Would it not have been clearer if the Minister had brought in this provision as an amendment to that section rather than bringing it in apparently altogether out of place? That is what is causing the confusion.
I think some safeguard is necessary in this section. One can understand and I quite agree with giving the manager power to make short suspensions. I think it would be good in every way—but it could be abused. We have to take human nature into account in the case of managers as well as in the case of the ordinary official. As I see it, there is nothing in this to prevent a manager from suspending an official on, say, a Friday, and, on the following Friday, when he resumes, to suspend him again and keep it going for as long as he likes. I cannot see anything in that section to stop him from doing that, without any reference to the Minister or any appeal. In my view, it is vitally necessary that some safeguard should be put there against such an action— some provision whereby a manager could not suspend a man for a continuing period without giving him a right of appeal or without letting him resume duty and dealing with him in the ordinary way, as is the case at the moment. Certainly, some safeguard is necessary to provide for such a case.
Major de Valera
As Deputy MacBride has said, it looks like being a fairly complicated bit of legislation now. As I see it, there is to be a new provision in relation to suspension, even though it acts through remuneration. I do not think Deputy MacBride's distinction makes a lot of difference to the basic argument. Under Section 27 of the Local Government Act of 1941, powers of suspension are given. I would ask the Minister if any other powers of suspension are given.
No.
Major de Valera
This is important in relation to this drafted section. Sub-section (1) of Section 27 of the Local Government Act, 1941, reads:—
"Whenever in respect of the holder of an office under a local authority there is, in the opinion of such local authority or of the appropriate Minister, reason to believe that such holder has failed to perform satisfactorily the duties of such office or has misconducted himself in relation to such office or is otherwise unfit to hold such office, such local authority or the appropriate Minister (as the case may be) may suspend such holder from the performance of the duties of such office while such alleged failure, misconduct or unfitness is being inquired into and the disciplinary action (if any) to be taken in regard thereto is being determined."
There, that section gives a simple power of suspension, pending investigation, as I read it—a power of suspension pending investigation, for stated causes. Only the Minister can, apparently, terminate the suspension, according to that section.
Sub-section (4) of Section 27 of the 1941 Act says, in effect, that the question of the holder's remuneration is to be at the discretion of the Minister: whether or not he is to be paid during suspension is a matter at the discretion of the Minister. There are other sub-sections also which I do not think are material to our argument here. Am I right in that interpretation of the first half of that section? It gives a general power of suspension in a certain case, pending investigation, removable by the Minister. Is that the position? I have to ask the Minister for the answer.
It is, yes.
Major de Valera
Therefore, the duration of the suspension is from the moment of suspension to the time of the Minister's decision. Would the Minister then please tell me the meaning of the phrase—where is it related to that or any other section—"including short-term disciplinary suspension not exceeding seven days"? Where do we find "short-term disciplinary suspension"?
That is a new one.
Major de Valera
Then there is something new in this section?
It is about time——
Major de Valera
There was a suggestion that there was not anything new in this. There is. Now, admittedly, coming back to Section 19 of the Act of 1941—the section referred to—that is simply a section that gives powers of making regulations and there are a whole string of things and powers given to the Minister making regulations. Then, in Section 14, there are additions to those powers. What we are seeking to do is to give powers to the Minister to make regulations which can provide in any way the Minister likes for remuneration in respect of suspensions to introduce a new type of suspension, you might say, which is not in Section 27, a new animal altogether, so to speak, which is even slipped in in brackets "...(including short-term disciplinary suspension not exceeding seven days.)"
Short-term.
Major de Valera
I note it. Therefore, I think I am quite justified in my earlier remarks. I do not intend to repeat them now but consider them as made again. This, therefore, is a most objectionable provision. Here, you are giving blank powers to the Minister to make any regulation he likes touching suspension and payment in respect of suspension where, mark you, before, it seems to me on my reading of it to have been restricted to cases of suspension pending inquiry and where the Minister had, admittedly, discretion to determine these things.
I would not be too worried if the Minister had this power. I quite agree we must be realists but what I am afraid of is that the Minister will blandly, by regulation, pass on this power to a county manager without further ado. I am particularly anxious about it in that sense having regard to the fact that the reason given here is that it will not have the Minister to deal with it. I would be satisfied if the Minister would ensure that he would not pass on that power without safeguard.
For short term?
Major de Valera
Even for short term. Would the Minister not provide some safeguard—just as we had in the Defence Forces Bill for a soldier—for the suspended employee? As the Minister knows, these trivial things can be more tyrannical than the big things.
Will the Deputy look at Section 10 (2) of the 1941 Act?
Major de Valera
That does not answer it.
It does.
Major de Valera
It gives general right of appeal. There are general provisions——
In respect of three particular instances.
Major de Valera
The danger is that the Minister or his advisers may say: "This is a trivial matter. The county manager will deal with it." The buck is passed completely to the county manager and the Minister shields behind the county manager.
He has the right of appeal.
Major de Valera
Yes, but that is not going to be a great deal of good if there is a regulation there saying that during suspension he has to forfeit his remuneration. He can appeal away but we know the answer he will get.
That is very unfair to a Minister.
Major de Valera
The law would be there and the regulation would be law. He would get the regulation answer. I do not think that is unfair.
I think we issue more than the regulation answer.
Major de Valera
The regulation answer is given: "The matter is covered by regulation and the Minister cannot interfere." That is a document well known to most members of this House.
Do you want the Minister to retain jurisdiction in this matter?
Major de Valera
It would be a very good thing. What I am asking for is a safeguard.
He has got it under Section 10.
Major De Valera
There is not sufficient safeguard under Section 10. It is too broad, too general. Again, I do not like the particular amendment by which it is done. Without meaning offence, I think it is almost slid into the Bill; it is an additional power. I far prefer to see it out in a more straightforward manner. This new animal called "short term disciplinary suspension," what is it in plain language? It is summary punishment where you had not summary punishment before. Whether you have an appeal or not, where before suspension related only to suspension pending an inquiry, now you are bringing in short term disciplinary suspension simpliciter which, however you take it, is simply summary punishment, whatever about the right of appeal.
However, I have delayed the House enough making the point. I strongly urge the Minister as a legal practitioner who appreciates the difficulties to put in the necessary safeguard. I have no objection, with appropriate safeguards, to giving the county manager or the Minister the powers necessary to maintain discipline but I think we should put in the necessary safeguard, realising that it is not enough to give blanket, autocratic, authority in matters like this.
I am satisfied the necessary safeguards are contained in Section 10 of the Local Government Act, 1941. One would imagine to hear Deputy De Valera speak that this was something new. Deputies in this House who are members of mental hospital committees know it is something in practice for years. Every one of you who are members of mental hospital committees know that and there has never been a word about it. It is a practice which in my opinion was questionable but a practice which we are now going to legitimise. All of you know how essential it is that our R.M.S.s should have this power of suspension. Where it comes down to the question raised by Deputy Colley that an employee may be suspended on Friday, taken on again the following Saturday and suspended, Section 10 even provides for that. An officer of a local authority who is aggrieved by a decision of such local authority in relation to remuneration, duties, or conditions of service—conditions of service will cover such a case—he has the right of appeal to the Minister. I can assure Deputy de Valera that Ministers do not treat appeals in the same manner in which he suspects they are treated. This in my opinion is a very essential sub-section. It will legitimise a practice which has been going on for years.
Major de Valera
That is almost a more shocking statement but, on the section, I am not satisfied that Section 10 of the 1941 Act gives the safeguard that the Minister thinks it does. It will not be a question in relation to his remuneration because it will be suspension and the remuneration will have been made incidental to this section. Will it be a matter in connection with his duties? It is certainly not a condition of service. I am not satisfied but the Minister will continue to say "No", and there is no use in prolonging the debate. Nevertheless I would seriously ask him to consider a safeguard.
I think the Deputy is under a misapprehension as to the actual effect of this paragraph. It relates to the question of remuneration after suspension.
Major de Valera
During suspension.
After suspension it enables the local authority to withhold payment. I think it is covered by sub-section (2) of Section 10. The only thing the Minister might consider— inasmuch as the whole of the section is to enable the Minister to make regulations—is that in making the regulations he should provide a modification giving the right of appeal against any forfeiture of salary.
Major de Valera
How does Deputy MacBride get around including short-term disciplinary suspension? That seems to hang in the air if what the Deputy says is accepted.
It deals only with remuneration.
There is one point I wish to make. In the development of local government there are divisions and subdivisions. It is a very complex machine. If you take Health itself, there are a great many services to be considered. Unless you have local discipline on the grounds, you are not going to get anywhere.
I quite agree.
Amendment No. 9 withdrawn.
I move amendment No. 10:—
To delete lines 49 to 51.
A good deal of discussion has taken place on this clause, a very serious one, "providing for the removal from office by local authorities of holders who hold in a permanent capacity and prescribing the procedure to be adopted and the conditions to be fulfilled in relation to such removals." My committee have asked us to request the removal of the last three lines in the clause which says:—
"Providing for the supplementing of the regulations by directions given from time to time by the appropriate Minister."
I would object to these words myself. I do not think any Minister should have the right, if a case comes before him, of supplementing regulations even though I am satisfied that the present Minister—and I should say 99 per cent. of the Ministers of State—would favour the victim, the official who was being superseded, suspended or transferred. Supposing that official felt he had a grievance, that he went and got legal advice and found that he was right, is it proper that a county manager who still wanted to get rid of the man, could ask a Minister to supplement the regulations for that purpose?
We all know of a case against the E.S.B. some ten or 15 years ago in which a man was suspended, lost his money and was out for a long time. Eventually he went to law and got a verdict in the High Court, I think. I cannot see anything like that happening, because of my belief in human nature, that Ministers in Government Departments would be 90 per cent. in favour of assisting that type of victim. But supposing a county manager wanted to get rid of an official and that the regulations then did not permit him to do so, is it right that the Minister should have this terribly drastic power of supplementing the regulations by directions given from time to time by the appropriate Minister? I do not think the Minister ought to seek those powers, I do not think he would be a happy man to have them. If some day a county manager can come to him and prove, according to his outlook, that the man should be removed and yet the regulations then did not give permission to remove him, would it be right for any Minister to have power to supplement the regulations?
Deputies ask for the removal of those lines. Some Deputies—I think there are ten or 12 names—have asked for the removal of three lines, and other Deputies ask for the removal of more lines. My three ask for three lines. There are three separate resolutions asking for these lines to be removed— by men, nearly every one of whom served on local boards. I would ask the Minister to consider the matter and make clear what the intention is in asking for the supplementing of regulations from time to time.
I cannot accept this amendment. The Deputy sits here as the Lord Mayor, representative of the Dublin Corporation. He knows very well that from time to time the corporation and other local authorities seek advice from the Department. There is very great doubt indeed as to the legality of advice given by way of circular.
Since the original statutory regulations were made in 1943—that book contained regulations made for one section of my Department alone and there is a number of sections in the Department—there has been very great doubt as to the legality of these regulations. They govern many things— for instance, promotions to certain classes of office, which may be made from time to time; the appointment of rate collectors, the compilation of examination papers, the remuneration of branch librarians, the approval of deputies and substitutes, the payment of overtime, travelling and subsistence allowances. All these are governed by regulations issued from time to time— and varied, of course, from time to time—apart altogether from the statutory regulations introduced in 1943. Once we question the validity of these regulations it is time that we legalise them, and that is what we are trying to do by this paragraph.
Major de Valera
I would like very soberly and quietly to ask the Minister a question. I would like the answer, as I am not aware of it. Is there any other case where this House has given statutory sanction and power to a Minister to supplement statutory regulations by directions? If not, have we not here the most extraordinary innovation and extension of the power of legislation by Order? That is a question which I ask the Minister very soberly and I think that we and the public should take particular cognisance of the answer. We must face the fact as it is. There is need in local government, as in any other sphere of State activity, for enabling legislation, in the first instance, and thereafter for executive authority in order to get work done.
In the working out of the local government code, the enabling legislation was supplied in the first instance by Acts of Parliament. That proving not flexible enough to meet all contingencies, we have had to meet the situation by enabling Ministers to prescribe regulations—but statutory regulations, which are in the nature of delegated legislation and have legislative authority. We have seen in the course of this discussion even to-day that it was found necessary in certain cases to attach to the Minister the power of repeal. Gradually that developed, and we have delegated our power and right to legislate, to the particular Minister for the time being, almost an omnibus power. In fact, the only safeguard we have been able to retain, and sometimes we had to fight for it, is that these regulations would be disclosed to us through the machinery of laying them on the Table of the House. That has been sufficient heretofore— there were the ordinary directives in the course of administration down the line, between the Minister, the county manager, the officer and so on—and I presume that is to go on, and that all that was necessary, and they acquired the character of regulation. Now by this section we are bringing in something new.
It is very naïve to say that the Minister may, by regulation, "provide for the supplementing of the regulations by directions given from time to time by the appropriate Minister." Now, whatever the intention is there, it means in fact that we are now to give the Minister power to take to himself power to make what will be in effect regulations——
Which he has been doing down through the years.
Major de Valera
Yes, but they have been in a different category. They had not the statutory character——
We are going to legalise them. They have been acted upon.
Major de Valera
They have been acted upon, but nevertheless, from the point of view of legal right and status in legislation, there has been nothing carrying the force of law here as regulation, save and except such regulations as were duly made by the Minister in direct pursuance of statutory authority. This naïve supplementation by direction means simply saying to the Minister: "Do what you like." Let us face it. I can see people arguing that this may be necessary, but this is the thin end of the wedge, if it is the first time it has been used.
I can assure the Deputy this is not the first time.
Major de Valera
I do not know; I have asked the Minister. Even if it were not the first time, it is still a highly objectionable practice; and it is the first time I can think of that it has come to my notice. Here is a provision that simply says to the Minister "Make your regulations and then make any directions you like after that and it is no concern of anyone else." In fact, all he has to do is to get enabling legislation. We might as well pass an Act here and now and save ourselves time and trouble by saying in it: "The Minister for Local Government can do what he likes." This is the beginning of it. You may think I am an alarmist but I want to put this on record and I hope that all thinking members of the community, all thinking bodies, public authorities, educational and all other authorities will take note of this fact that the Dáil has the authority to legislate and that we have already gone far in giving power to Ministers to legislate by Order even with power of appeal attached, but that now the Minister proposes in a Bill here——
And to which the Deputy put down no amendment.
Major de Valera
That is not the point. The Deputy is perfectly entitled to make his case and that is a very weak answer. The Deputy is making his case now, and tells the Minister that there is plenty of time on Report if the Minister wants to take it that way. I want this in black and white and if I am wrong I can be contradicted: The Minister is now providing that he may make regulations, and providing for the supplementing of the regulations by directions given from time to time by the "appropriate Minister". In other words, he can legislate by direction without any hedge about him in this regard. I know perfectly well that is not the Minister's intention. I am being forceful about this because I see in it a danger, another safeguard gone. I see in it the thin end of the wedge. I see something that makes me apprehensive. I believe when the Minister talks about this Bill being a prerequisite to the codification of local government law that if you get this into it, your codification does not matter a damn. It is so much eye-wash because the hand can be mended at every turn. To my mind this is the most serious and objectionable provision in the Bill. The Minister has moved an amendment that every regulation made under the Bill must be tabled in each House, but let me point out that there is no provision that the supplemental regulation by direction must be laid before the House. These could be hidden. The supplementing of that regulation by direction could be such that although the regulation might have been—and would be prescribed to be — on the Table of this House, the supplement thereto would perhaps never come to our notice at all because there is nothing to compel it to be put on the Table of the House.
The thing is so serious that I am not going to say: Provide for them to go on the Table of the House. I think this type of provision should not be there at all. I think it is highly dangerous and objectionable and a step which if expanded at all would make a complete farce out of legislation here.
What is the interpretation of this supplemental direction? A direction could go very far even so far as to contradict the regulation. The thing is so wide that anything could happen. I find it necessary to say again, as the Minister would be careful to do as a Deputy of the Dáil, that I am not impugning the particular holder of ministerial office at the moment nor the particular officers who advised him but there is in this a real danger to the constitutional safeguards in our system of legislation, in the publicity, in the fact that it is legislation of this State in theory to be enacted by this House and that even in the last stage the Minister has the power to delegate. All that is seriously attacked here. I see in this the first step towards breaking up the authority of our system of legislation if this were spread. That is why I said I would like to invite the attention not only of the Minister and of the House but of the public, local authorities and all other bodies of a thinking sort in this State to a provision of this nature, and I think an outcry against it is called for.
I should like to set the Deputy's mind at ease by informing him that this is not the first time that there has been legislation introduced in this House enabling a Minister to issue directions and giving these directions the full force of law. It has been done not infrequently, unfortunately, in a number of different measures, some extremely important ones and in other cases I think it was a favourite device of the Department of Industry and Commerce on a number of occasions. That does not make it any less objectionable. It is an objectionable practice. But I do not think that this is the occasion to launch a constitutional battle on it. I think if we could turn our back on this type of legislation it would be a step forward. I think the discussion on this Bill has been useful from that point of view because it has made the members of this House appreciate that the time has come when Deputies should dig their heels in against the practice of delegated legislation and also against the type of draftsmanship used in this Bill.
I would like to ask the Minister this question on the use of the word "direction." What is a direction supplementing a regulation? What is the status of a direction as against a regulation? Is it a law?
Personally, I do not think it is.
But will it be after this?
I think it should.
I wonder is that right? There is no definition that I know of "direction" as distinct from "regulation." We have statutes, orders, regulations, but so far I do not know of any status that can be given to a direction, and I do not see the distinction between a regulation and a direction. It seems to me that if this is to be something to supplement a regulation there should be an amendment of the regulation — is that what it is?
I suppose it is.
Major de Valera
Why can it not be done in a regulation?
A direction would only supplement a regulation; it would not alter it.
It would amend it by extending its scope, and surely that would be an amending regulation, and that is a different type of animal.
Major de Valera
I am afraid so.
I think that is something the Minister would agree——
Take for example the case of assistance allowances. These are provided by regulation, but are amended from time to time by direction.
I do not think you can amend a regulation by something else — only by a regulation.
In regard to assistance allowances, the regulation says that the sum fixed shall be such sum as the Minister may direct from time to time.
Major de Valera
Oh, that is all right.
But is not that supplementary?
Major de Valera
Yes, but the way this is phrased it would extend the idea very much further. It is the thin end of the wedge.
I do not think the Minister has any evil intention at all and it is more the idea of introducing some new form of animal into our already overloaded system for delegating powers, that is objectionable.
Major de Valera
I would be very interested to get some examples of where it has been done before. Quite frankly, I do not know of any. It is a different thing to say the Minister may prescribe the rate of remuneration or something like that. That is definitely hedged, but here is an omnibus provision and it is not from the point of view of scoring against the Minister that I am raising this but because the provision is so wide in providing for supplementing of regulations by direction given by the "appropriate Minister." The fact that it is provided in this Bill puts a supplemental direction on all fours with regard to statutory effect with a regulation. It does that. You cannot escape it. The effect of this provision would be to put such supplemental directions — whatever they are — on all fours with regard to cognisance in court and so on with statutory regulations.
In the case of statutory regulations, in the main, there would be the safeguard that we would have them on the Table of the House. Even the Minister's subsequent amendment will not cover these directions, and secondly, there is nothing to limit the nature of these directions. It is one thing to say that remuneration shall be at the rate which the Minister directs — and there is usually the safeguard "in conjunction with the Minister for Finance"— and another to say generally that you can supplement the regulations without qualification. There is a very wide field opened here, opened, I admit, with a very thin little breach, but a breach which can be widened. One could not foresee the length to which this type of direction could go. It is almost conceivable that, under this, the Minister could give a direction that something should be done secretly without the knowledge of Parliament or anybody else — it could almost get to that point — and that such a direction would be legal and binding until it came to the notice of somebody who brought it under review in this House.
How could you find it out, if it was secret?
Major de Valera
Exactly — how would you find it out? You have proved my point.
Do you believe that?
Major de Valera
It could happen under this wording and that is what we are concerned with here. I am not alone amongst the people who have said these things here, because Deputies from all sides of the House at different times have expressed the same views and the same anxieties. In fairness to all the Governments here to date, all these Governments have been alert in some degree to these dangers and I know that various Governments have checked tendencies in that direction, and particularly tendencies which grew up during the war. I urge the Minister very strongly to delete this and to substitute specifically whatever it is he wants to aim at.
Deputy de Valera has expressed concern at what he describes as this innovation. It is not new. I refer the Deputy to Section 11 of the Electoral Act, 1923, a section which has never been amended.
Major de Valera
Would the Minister mind reading it?
Section 11 sets out:
"It shall be the duty of the registration officer to compile the annual register and to place or cause to be placed on the register in accordance with the rules contained in the First Schedule to this Act the names of those entitled to vote as Dáil electors, or Seanad electors in his registration area and to comply with any general or special directions which may be given by the Minister for Local Government with respect to the arrangements to be made by the registration officer for carrying out his duties as to registration."
There power is given by that section to issue directions.
Major de Valera
Is the Minister serious?
I am quite serious.
Major de Valera
That is a very confined matter.
It is the only one I have had time to look up. Deputy MacBride has assured the House that there are others. I have had time to find only that one.
Major de Valera
I know that the Minister is professionally very able, but I am afraid he has a very bad case when he has to fall back on that. Does the Minister not see the difference between a specific thing like that and the omnibus power given here? I do not want to make it a point against the Minister or the Government. Even if that type of thing were growing up in any other dispensation, it is not a good thing and I would still make the arguments I am making now. I strongly urge the Minister to consider the view I have expressed here and to delete that objectionable provision. There may be specific things, but, if there are, let them be dealt with specifically. There is not even the safeguard of having these supplemental directions with the force of regulations laid on the Table.
There are thousands of them. I have shown you a number in one section alone.
Major de Valera
Have things not been working quite all right up to this?
In some cases. We found that some local authorities are prepared to accept our directions and others will not.
Major de Valera
Can the Minister give any other examples of the type of supplemental directions he has in mind? He has given one relating to remuneration.
I can give you several.
Major de Valera
They can be dealt with by a much less dangerous method than you have here.
The Minister, to my mind, has just given the game away. He has mentioned that up to now some local authorities might accept the directions and some might not. From now on, if this is passed, every local authority must accept the direction.
Exactly — that is the reason we put it in.
Therefore, the directions have the force of law.
Certainly
And therefore they must at least be equal to regulations?
Certainly.
And therefore must be laid on the Table of the House?
They are supplemental to the regulations.
The words "supplemental" and "direction" are, neither of them, defined in any of the Local Government Acts. If they had been, the Minister would already have trotted out the definition, but they are not there.
Look at subparagraph (n) providing for the supplementing of the regulations by direction.
Would the Minister say, if a direction has the effect of amending a regulation, what advantage it would then be to have the regulation laid on the Table of the House?
It will not amend a regulation. It may supplement it, but will not amend it.
If it has the effect of altering a regulation?
Major de Valera
Deputy Sheldon wants to know what the word means and so do we.
It would not alter a regulation, but supplement it.
Would it extend a regulation?
It could possibly.
And would an extension of the regulation not be an amendment of the regulation?
No. You may make regulations governing the compilation of examination panels — I am sure the Deputy will agree that they must be altered from time to time; remuneration of branch librarians; the employment of deputies and substitutes; the payment of rate collectors and the procedure governing such matters; the payment of overtime — a very simple one; travelling and subsistence allowances; and various other matters of detail.
Is not a direction such as is envisaged here an amendment of the regulation to which it refers?
It is supplemental to the regulation.
I do not see why there should be any difficulty about the Minister making his mind clear on this. I have been listening to the discussion and I must say that I cannot get my mind clear. The Minister himself cited the case of the subsistence allowance of certain officers being so-and-so and a regulation is made by his Department covering that and, by direction, the Minister alters the subsistence allowances. Is that not an amendment of the regulation?
No.
Of course it is.
Let me read paragraph 16 (e) of the Local Government (Officers) Regulation, 1943, which sets out:
"The cost of the conveyance of an officer from place to place by a private motor-car, motor-cycle, horse-drawn vehicle or pedal cycle, in his possession, shall be determined by reference to scales issued by the Minister from time to time."
He has power there to issue directions. They are not in contravention of the regulation; they are supplemental to the regulation.
The Minister cited a case as an example and now he seems to prove that it is unnecessary that he should have the power sought here.
Because the legality of this is doubtful.
Major de Valera
We have to make a distinction between the workings of the local government machine internally, and its relations outside. It is quite obvious, as I said at the outset, that in working local government, you must have enabling legislation. You must have legislation, broadly, and regulation as part of legislation, determining the relations of the Local Government Department to the citizen and so forth. Then you give directives for the working of it, particularly within the machine. That is administration. That has been given but it does not need extension. Here is one aspect of it which might be fundamental. Nobody will deny the right of the Minister to make regulations touching his own machine, such as the remuneration or the travelling allowances of any employed officer or any matter of that nature. These are quite obviously administrative details just as in the Civil Service these matters are determined——
Quite so.
Major de Valera
Yes, but here is a power of making legislation which can affect the rights of citizens.
Which citizens?
Major de Valera
Citizens apart from the machine.
Oh, no.
Section 19 deals only with officers.
Major de Valera
The section states that "the appropriate Minister may for all or any of the following purposes make regulations applying to all the offices in relation to which he is the appropriate Minister and their holders, or to such of those offices as belong to a specified class, description or grade." Offices as well as holders — mark that. There are certain things I was coming to in regard to holders themselves. There are certain rights just as there are in the case of the Army which I mentioned earlier, that need to be safeguarded with regard to the holders and in regard to the offices. Regulations can be made under this section covering practically anything that is involved in regard to the offices as well as in regard to the holders. That is quite wide enough to be objectionable but apart from that — I am back to the original point I made — it is the generality of the provision, the opening-up — and I think I said earlier a small opening could lead to a big breach — that I object to. Even if Deputy MacBride and the Minister relate the proposal to the same type of powers in previous legislation, I still think it is objectionable to extend it and that it is unnecessary in this case, that what the Minister wants to do can be done in another way that there can be no doubt of the legality of what he has done heretofore. I still think this sub-section is in principle objectionable and I would ask the Minister to remove it. Again I am back to the question of principle.
Is not the real effect of this to keep the idea of principle but to alter the conditions or extend the application of some order or regulation? Does it not look very much like altering the rules in the middle of the game? Could it not be so applied?
Would the Minister be prepared to agree that this directive, in regard to supplemental regulations, should pass, on the understanding that the regulations would be included under his amendment providing that they should be laid on the Table of the House? Would the Minister agree, in view of the variety of expressions of opinion about this matter, to regard these supplementary directives as being of a standard which would qualify them to be laid on the Table of the House in accordance with the amendment which the Minister proposes to make in this section?
To keep them in the Library of the House?
On the same terms laid down in his own amendment, that they will be regarded in the same way as other regulations.
I should like to look up the matter between now and the Report Stage, but I shall give a guarantee that we shall make them available in the Library.
There is one difficulty against which we should guard. That is, that if we once clutter up the papers that are laid on the Table of the House into a huge pile, nobody will see them or read them. I think the number of directives that will flow from the Department will be tremendous and will be likely to clutter up the papers laid on the Table of the House. The only thing that should worry us is whether these directives have any status and I doubt very much if they have.
That is my own opinion.
It seems to me that inasmuch as they apply only to local authorities the enforcement of the Minister's wishes as regards the local authority——
Often given at the request of the local authority.
Yes. Has not the Minister always got the upper hand of the local authority? Actually does he need legal powers to compel them?
I am advised that he does.
It is open to all kinds of trouble in future.
There is also the trouble about the supplemental provisions. The Minister gave a good case. Could it not be equally held that a regulation, which affected the city manager in Dublin, could be laid on the Table of the House and could then be supplemented by a direction of the Minister, making it apply to county managers?
The regulation was made for the City of Dublin.
The Minister's intentions are pure but can he not foresee that a successor in office might argue that it could apply to other managers?
You are then making a new regulation for the counties.
Some other Minister might equally argue that "supplemental" covered it. There is no definition of "supplemental".
I do not accept the view of Deputy MacBride that there might be a cluttering up in the Library because if such a directive came along to supplement a regulation, it would come immediately to the notice of the local authorities and then, in a matter of days, if it were something to which there was objection or something in regard to which there should be further consideration, some member of the House would go into the Library and read it. You might have other regulations once every week and nobody would bother about them because there would be no objection to them but the moment one of these supplemental directives came along, which nobody would like, it would be brought to the notice of the local authority and if a member of the local authority were not a member of this House he would present it to a member of the House. That is why I say that as far as I am concerned — I am not prepared to enter into these legal problems — if the Minister will agree that because of the suspicions expressed, he is prepared to place these directives on the Table of the House, he can say "All right, there is nothing to hide about supplemental directives. We will insert this amendment providing that they should be placed on the Table of the House".
We will put them on the Table of the Library.
The Table of the House is supposed to be the Library. I want the same rights attached to them as attach to ordinary regulations.
Major de Valera
What is the difference mechanically? We have to read the document anyway. There is the danger that this may be wide enough to have somebody in the Department make an Order by direction of the Minister but the Minister may never see it. I hope the Minister is aware of the danger.
I take it that this sub-section has been inserted because of experience which the Minister's Department has had down the years. I move to report progress.
Progress reported, the Committee to sit again.