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Dáil Éireann debate -
Wednesday, 24 Nov 1954

Vol. 147 No. 7

Committee on Finance. - Local Government Bill, 1954— Committee (Resumed).

SECTION 14.

I move amendment No. 11 (a):—

To add at the end of the section the following sub-section (as a sub-section to be added to Section 19 of the Act of 1941):

(5) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made 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 regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

The amendment proposes to add to the section a sub-section which will provide that any regulation made by the appropriate Minister under Section 19 of the Act of 1941, as amended by Section 14 of this Bill, shall be laid before each House of the Oireachtas. In view of all we have heard on this matter, I feel sure the amendment will be accepted readily.

Major de Valera

The amendment will be readily accepted and welcomed and I very much appreciate the Minister's intentions and interest in putting it down. I think it is only fair to the Minister to say that this particular amendment was on record by the Minister before we opened the debate on the Bill. As I said, we all welcome the amendment and we appreciate the Minister's attitude heretofore on this matter. There is one thing I should like to say now to the Minister in regard to this amendment and that is that we go back again to that naïve sub-section or paragraph in Section 14 (n) providing for directions—that the directions would not be captured by this amendment. But as this matter is to be raised on the Report Stage we shall leave it at that for the time being. It is, however, a point to appreciate that even though the regulations which would provide for the supplementing of legislation by directions—and on the other hand the legislation which would provide for the supplementation of the directions in view of this new amendment—would come before us in the House, the actual directions given in pursuance of that empowering Order would not. It would remain hidden and secret as far as the particular legal and statutory effect of this is concerned. Therefore, the only question I would put to the Minister now is that that point should be borne in mind when it comes to considering sub-section (n) on Report Stage as the Minister has said. I think I need not dwell any further on this particular point while we are awaiting the Report Stage.

Section 14, as amended, agreed to.
SECTION 15.
Question proposed: "That Section 15 stand part of the Bill."

It is not quite clear what is behind this particular section. Perhaps the Minister will explain to what extent this section, if the Bill becomes an Act, would be operated. There is another section which deals with the transferring of an officer from one office to another and, possibly, from one area to another that might not be suitable for him. The powers conferred by this section would put such an officer into a particular class outside the class in which he was before being transferred. It says:

"The powers conferred by this section in relation to a specified office may be exercised notwithstanding that such office belongs to a class, description or grade in relation to which the powers conferred by this section have already been exercised."

In other words this means, subject of course to the Minister making the point clear, that an officer may belong to a particular class or description and that the Minister may specify him as belonging to a distinct and different class. I do not want to waste time but I should like that the Minister would explain this position.

The section merely clarifies the law, or rather a doubt on a point of law. Section 20 of the 1941 Act gives the appropriate Minister the power first of all to define the duties of officers and secondly to assign a particular duty to officers, these powers to be exercised in relation to a specified office or in relation to a class of officer. The doubt is whether the Minister can assign a particular additional duty to a specified officer if he has not already defined the class to which the specified officer belongs.

That is about the same as I said, and is about as clear.

It may sometimes be necessary to assign a specified duty to a specified officer which is additional to the officer's office or class. I think that the section clarifies the powers of the appropriate Minister to do this. It will not preclude the officer concerned from getting extra remuneration for doing extra duties if such an increase in pay is warranted. The section will empower the appropriate Minister to assign to a particular officer of a particular class special duties and will not prevent him——

I think I understand the position now. The section as it stands, however, seems to imply that the Minister has power to give additional duties and other work to an officer notwithstanding to what class he belongs. It was on the question of equity that I was worrying. The Minister now says that he is not precluded from giving an officer additional remuneration for additional duty.

That is so.

But that is not made clear in this section. It does not become a statutory obligation on the Minister.

That is dealt with on the administrative side.

I accept what the Minister has said unreservedly. It seems to be fair, but we have had experience that in instances where such positions are not made clear in the Act, the person concerned has no right whatever to claim what the Minister says he would impliedly be entitled to. Now, that is the difficulty. On a number of occasions here we have had discussions on a section of an Act and the Minister in all good faith has voiced an opinion and given an undertaking somewhat similar to that given by the Minister here to-night. Yet when that Act comes into operation and a person makes a claim, even before a court of law, what the Minister has said here and the official report of his intention here has no standing whatsoever in a court of law. It is in order to have some protection for the officer concerned that I am interested in this.

The Minister may in the interests of economy say that: "I think this particular individual, or individuals, can do a great deal more work; we will add this and this duty to them." Now in the individual's appointment no such additional work was contemplated and he will have no claim for any additional remuneration even if it can be argued by the authority under which this man serves that in fact the additional duties would clearly qualify him for promotion in his status, which promotion would give him the necessary additional salary or emolument. I wonder would the Minister be prepared to reconsider this and see if it is possible to have some clarification of this remuneration side of the question, provided additional duties or extra work attach to an individual.

Major de Valera

I think we might for the benefit of the House get certain points of procedure here clarified. Section 20 of the Local Government Act, 1941, provides that the appropriate Minister may by declaration do certain things. I think the Minister said this is an administrative matter in the first instance. Now, in what way is such a declaration made? If the Minister were to tell us that I think it would help the subsequent discussion.

It is, of course, done by Order under seal.

Major de Valera

In other words, it is an administrative Order in the Department and it has to be done at the head of the Department.

By the Minister.

Major de Valera

Now, every declaration made under this section shall have the force of law in relation to an officer, or officers, to whom it applies. That is all right. I can conceive that what has happened in most of these cases is that the Minister by Order under seal, which is a formal act of the Minister, has made a declaration whereby a set of facts are declared to exist in relation to certain officers; and the effect of the words "every declaration shall have the force of law" simply means that the declaration is authoritative and cannot be rebutted. That is the situation.

We come now to a rather interesting point in our local government code. Unless my memory serves me ill, it is now practically ensured in every case that where a Statutory Rule or Order is made by the Minister he has the power of revocation, annulment and substitution; in other words, he has the retrospective power. I think that is fairly widely incorporated in the code by now as far as the Minister is concerned. If we were dealing in Section 20 with a Statutory Rule and Order no such provision as this would be necessary. I think that is the situation because, of course, the Minister can mend his hand at every turn, subject to the proviso that he has the retrospective powers, powers which I think he has pretty widely in relation to Statutory Rules and Orders. Is it the position, therefore, that in the case of a declaration, once done it is done and the Minister has no power, so to speak, to adjust it? Is that the position? Is that the doubt with which we are confronted?

The section is merely to cover a doubt in the law. As the Deputy will appreciate, under another section of this very Bill we are giving one local authority power to do work for another local authority. One can visualise the local authority of County "A" doing work for the local authority of County "B"; the county engineer of County "A" will, therefore, have to move into County "B" for the purpose of doing that work despite the fact that by the terms of his appointment he is merely appointed to do work in County "A". This is merely to remove a doubt in the law as to whether or not we have the power to send him into County "B" to do the work.

Major de Valera

I appreciate that and, in substance, we understand the Minister's request. In substance again, in the Minister's intention there is reason, but unfortunately we have to deal with a legal document and I would like to be clear in my mind. Suppose a declaration has been made under Section 20 and suppose the Minister does not get this amendment: as the law stands a declaration has been made in relation to a number of persons; can the Minister alter the conditions attaching to these officers by a simple declaration at the moment?

Yes, for all officers.

Major de Valera

He can make such declaration as he wants from time to time?

For a class, not for an individual.

Major de Valera

Let us read Section 20. Section 20 provides that the Minister may by declaration do all or any of the following things in respect of a specified class, and then follows what he can do.

If I might interrupt the Deputy. Section 20 permits the doing of certain things in relation to certain specified classes. Now the proposed new section will enable the Minister to make regulations in relation to an individual coming within that class. For instance, there might be a state of emergency in civil defence or turf cutting and certain functions might have to be assigned to somebody immediately. This section will enable the appropriate Minister to assign these duties in a particular case, not in a particular class; therefore, Section 20 is not being contravened in any way by the new section.

Major de Valera

I am not suggesting that, but there are certain words in the Minister's amendment that need clarification: for instance, "in relation to which the powers conferred by this section have already been exercised."

As a class.

Major de Valera

Are we dealing with declarations that are made once under the Act or can they be made as often as the Minister wants?

They are made once for a class under the 1941 Act.

Major de Valera

That is the important point. The Minister appreciates that this whole code is a very complex one and one may, on merely looking at one section, misinterpret the law. I think everybody who has experience of the code in court knows that. That is why I am being so tentative and careful here in this. I have a section here which, on its first flush interpretation, it seemed to me that, in 1941, the Oireachtas empowered a Minister to make certain declarations —and there is nothing on the face of this section to suggest that, thereafter, he could mend his hand. That is why I ask the Minister the question that, having made the declaration——

Certainly he can amend it—for the class only.

Major de Valera

This is the essential point in it. How can he mend his hand if that is so? A few minutes ago, the Minister gave the impression that the declaration was made once and for all. However, can the Minister mend his hand and, if so, how? That will help us a lot in dealing with this amendment.

He may—merely for the class—by additional declarations made under Section 20.

Major de Valera

Can he make a new declaration?

I refer the Deputy to Section 13 of the Act of 1941, which reads as follows:

"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."

Major de Valera

That is the answer.

Now, I am still tagged to a class of officer. It may be necessary to add particular additional duties to an individual officer and it was to clarify the doubt in the law that I brought in this Section 15 of this particular Bill so that I may assign additional duties, not give directions as to the duties of a particular class. I have specified the additional duties which it might be possible to assign under the section. It may be possible, as I said, for one local authority to go into the area of another local authority to do certain works. Again, in the case of an emergency, it may be necessary to appoint an officer to take charge of civil defence, the cutting of turf and so forth. These things must be done immediately. Under Sections 20 and 13 of the 1941 Act, I have power only to make regulations or give directions to classes. This will enable me to give directions to individual officers.

My problem is not the interpretation of the code of laws as it confronts legal gentlemen in a law court. My problem is the question of equity as far as the servant of the local authority is concerned. I can quite see agreement being come to between two local authorities for one to supply a particular officer to do a certain class of work in the other. Obviously, it is additional work, additional duties. Under this proposed section, he may be ordered to do so by the Minister and he has no answer to that. It has happened before that one local authority has, in fact, done work in another local authority area and the officers of the local authority of A., say, have been doing it. The present position is that, provided the order is given by the city or county manager, the officer is bound to do the thing but he would have a claim to put up and say: "You have given me additional duties. I am entitled to some additional consideration." If this section goes through as it is, there is no claim whatever, from the statutory point of view, so far as the Minister is concerned. The Minister gives a certain number of illustrations of possible additional duties. If it is an engineer from, say, Dublin City or some other official who may have to go to another county to supervise and arrange for the cutting of turf, he may have to put in a considerable number of additional hours in travelling, and so forth, never envisaged either by him or by the people who appointed him. My only concern is that the Minister has said, in explaining the section, that it would mean that consideration would be given. If there is extra work, the man will get extra remuneration. I am pointing out that while we accept the Minister's view without any reservation, experience has shown that, if it is not covered in some form in the Bill, such persons may never be able to secure the additional remuneration because it is not specified in the Act. You are just told you have to do this by Order of the Minister—and everybody else is removed. The local authority, the manager—they have no say. The claim is direct from him, then, to the Minister. I should like the Minister to consider some means by which some indication would be given that the Minister himself would be the person who would sanction or direct—where there were extra duties—adequate compensatory extra remuneration.

The Minister is the person who will deal with such an application for additional remuneration. If I were to write into the Act a section dealing with additional remuneration for an officer who does work in another area, then it would be right that I should also write into the section a deduction of salary from the officer in the area in which the work is being done. I think the whole thing can be dealt with equitably on the administrative side. The Minister is the person who will have to deal with it.

Major de Valera

The Minister goes a long way in his last remark in saying that the Minister himself is the person who will have to deal with it. I am glad to see at least that that appears to be the position here on this section. However, quite dispassionately, let us look at this section from two points of view. Here is a case where I think it would be helpful for us in this House to realise that there are two conflicting points of view and requirements here and we should be equally sympathetic to both. From the point of view of the Minister and of his Department, there is the necessity for having the powers of co-ordination and control and for seeing that the administration works reasonably. Therefore, it is not in this case unreasonable that a Department should put up to their Minister that he should seek powers to enable him to regulate such matters as the Minister mentioned. On the other hand, I should like to put up this aspect, from the point of view of the employees. Supposing the Minister is right—that the doubt that he seeks to cure by this is well grounded. The Minister's position was that he could regulate the duties and functions of officers and holders as a class. That is the Minister's point.

That is, under the 1941 Act.

Major de Valera

That is the law up to now—that the Minister could define it as a class and, from time to time, he had complete powers under Section 13. If he finds that a particular situation should be changed in his administrative view, then he can change it. The only position to-day, therefore, is that the Minister for Local Government may take class A—say, county medical officers of health, county engineers, librarians, and so forth—and say that these are the conditions which attach to these particular offices, and it runs for the offices all over the country. But, though he can probably segregate by each county——

No. It is for the class.

Major de Valera

"Class" is very wide. What is the interpretation of "class"? Could it be considered as a class for a particular group of counties? However, we are bringing the Minister into more law that he has not contested and perhaps does not want to; we need not go into that. We will assume for the moment— though there may be an arguable case in the line suggested—that when he defines "class" he means all the officers of that class. I can see there is a certain difficulty in the Minister's or the Department's way if the county medical officer of a particular county, we will say the County of Blank, is proving a little recalcitrant from the Minister's point of view. The Minister wants him to do a certain thing or be in a certain position, and finds that he can only compel that county medical officer of health to undertake certain duties if he mends his hand as a whole, so that if he compels the county medical officer of health for Blank to do it, all other officers of health will have to undertake similar duties.

That I conceive to be the situation at present. What the Minister wants to be able to do is to isolate the county medical officer of health, the county engineer or any other office holder of the County of Blank and deal with things specifically, and that would be that. I will not go to the extent of saying that the Minister would be completely unreasonable in seeking to have powers of this nature. After all, he could run into a situation where a particular office holder would be troublesome; on the other hand is it or is it not going a little too far to give this power of dealing specifically with the individual without having the complications of having to deal with other officers of the class? From the point of view of the class and from the point of view of the individual there is a certain safeguard for the individual as against the machine in the fact that the class of office has to be dealt with rather than a single isolated person in an isolated position.

I do not think I have stated the position in this regard unfairly. If I have, the Minister will be quick to correct me. I do not know what the opinion of the House would be in this. My own general leaning would be that I cannot see a situation where powers are necessary specifically that would not be necessary in relation to the class. On general principle I would be reluctant to grant a provision like this to the Minister, reluctant only on the grounds, I hasten to add, that it is isolating individual office holders for specific and easy action. I know from the departmental point of view that it is highly desirable, and it may be that it is very reasonable that the Minister should have these powers; nevertheless, I have a feeling that it is no harm that there might be certain difficulties in the way of the machine; it is no harm that the problem of having to deal with office holders should be faced. It would be a very wrong thing if we made it easy for a dash of the pen to cure every headache the Department has. I am afraid the tendency is very much that way in this Bill. That is the reason I am speaking on it at all. The principles in this regard and the things the Minister wants to do are common cause between us in many respects but on the wording of the Bill it is too easy to take power to dispose of something with a scratch of a pen, and that is that. That is why I hesitate on this.

On the other hand, this is one of the things the Minister will deal with personally and I have not the strong objection I had to Section 14 (n). The Minister says it is to remove a doubt but the very wording of that section suggests to me that here is a case where a certain office holder has taken office and holds office under certain conditions; when he took office under those conditions he had at that time the safety that existed under Section 20 of the 1941 Act, which tells him that all office holders would be in the same position, so to speak. Now to his detriment—and I very much fear it will be to his detriment—be he county medical officer of health, county engineer or any other officer, a position will be brought about where his case can be isolated, where he can be taken apart from his professional colleagues or his office and dealt with as the Department requires. I am wondering is it fair. I wonder is it necessary to give the Minister these powers? Has he not sufficient power under the present section? Is this not what I might call a power of convenience for the administration? If it is merely a power of convenience it is, to my mind, unnecessary and in the present circumstances a dangerous power to take.

The Minister has mentioned the question of an office holder being asked to do duty for another public authority in pursuance generally of the provisions of Section 58 and all that would flow therefrom. Supposing you want to bring about a situation where the county medical officer of Blank will carry out the duties for the county medical officer of some other county, surely it is possible to frame a regulation in general terms that will cover every county and every office holder without prejudice to the Minister being able to get things done but also without damaging a particular office holder.

I must again express my own nervousness of this provision. I do not like it, and I am not satisfied that it is necessary. Since 1941 to the present day this situation has ruled. Admittedly, the case mentioned by the Minister is a new one under this Bill, but I cannot see that Section 58 can be made the excuse—the Minister will pardon the word; I am not suggesting that he is putting it that way—or the reason for everything. If Section 58 is given as the reason, let us answer the argument of Section 58 and on the argument in relation to that section I can only say that I see no valid reason why a general declaration or a general Order wide enough to cover all the classes cannot be made to suit the Minister's requirement. If it is a question of declaring that all county medical officers of health will undertake, if required, certain duties, I see no reason why that cannot be put in. To make that the excuse for legislating for a specified officer, whether the office holder is the county medical officer of health or the county engineer, seems to me to be a little unreasonable.

I do not know if any representations have been made to the Minister on this. I do not know if the office holders concerned have in any way been consulted in this regard. It would be interesting to know. I think a section of this nature requires that in some form or another the views of the people affected should be presented by the Administration, because to some extent it is going back to a question of their initial contract. However, I have said all I can usefully say on the section, but I would like some further and greater justification for the inclusion of this power—in view of the length of time that has elapsed since 1941—other than Section 58 of this Bill.

I mentioned one particular side in which I was interested but there is another side. This section will now give the Minister direct control of every officer who belongs to a class in a local authority and government by local authority will, by virtue of this section, become possible from the Custom House because, instead of the manager or the local authority deciding the operations or the acts of a particular individual, the Minister may send down an instruction to say: X now must do this or that, work here or there, and I think it is seriously endangering the—if you life—democracy we believe attaches to the setting up of local authorities and the electing of them, and the operation of local authorities by the elected representatives in conjunction with the managerial system. Apart from the other side that I have argued, I think the Minister should hesitate—in addition to what has been suggested by Deputy Major de Valera—to insist on this section. From the local authority point of view, it will be the Custom House that will be dictating the actions of the individuals employed by the local authority.

Let me assure Deputy Major de Valera that I have consulted the union of local government employees and they have no objection to this section. Deputy Major de Valera and Deputy Briscoe have made a very good case but they have made it 13 years too late. At least Deputy Briscoe was a member of this House at that particular time. I would refer him to Section 20, sub-section (1) of the 1941 Act, which says:

"The appropriate Minister may by declaration do all or any of the following things in respect of a specified office in relation to which he is the appropriate Minister or in respect of such of the offices in relation to which he is the appropriate Minister as belong to a specified class, description or grade, that is to say:

(a) define the duties of holders thereof,

(b) assign a particular duty to holders thereof,

(c) define the places or limits within which all or any of the duties of holders thereof are to be performed."

A doubt has arisen whether after having given certain directions to a class under that section, he can reject the directions for an individual. He has power, first of all, for the filling of an individual office and then power to give directions with regard to the class but having given those general directions he may want to amend them as he will require to do if the section empowering one local authority to do work for another is passed.

He will require to amend them in that particular case. It is to remove any doubt as to whether he has the right to amend or give directions to an individual in a class in which he has already given directions under Section 20, that this section is required.

Major de Valera

Perhaps the Minister is right and perhaps that particular section of the 1941 Act gave powers that were a little too wide. I am not going to controvert that. The question I see arising from the Minister's last remarks is—if the Minister has all those existing powers under the 1941 Act, particularly in relation to Section 13, why does he want this one? It is to remove doubts, the Minister says. The Minister will pardon me, I know, and I am not making any imputations against the Minister personally, but when I see amending sections of this sort I am beginning now to be suspicious. However, I do not still see— particularly in view of the Minister's last statement about Section 20 of the 1941 Act—why it is necessary to pass this section. I can see in its wording, without chasing it very much further, certain specific dangers and as the Minister admitted——

Would the Deputy refer to Section 58? It would be impossible to amend Section 58 if we did not get this power.

Major de Valera

On Section 58, I have already given the Minister my answer to that and it is on the record. There is one point on which I am reassured and I am glad that this consultation has taken place as this shows there is no objection from the parties interested. Perhaps I am unduly alarmed. One last word to the Minister as Minister and as a member of this House who has seen this type of legislation from the point of view from which I am looking at it, literally and metaphorically, is that he should keep his weather eye open when such sections as this are going through. I am beginning to learn that an explanatory White Paper or memorandum can be somewhat misleading when it comes to the actual interpretation of the wording of the section.

Would the Minister agree that the explanatory memorandum in explaining Section 15 makes no reference to Section 58? It deals specifically with Section 20.

Yes, but I am giving one of the reasons why we want it.

The Minister must understand and appreciate that when those of us who are not legally trained deal with this we deal with it from the point of view of our experience of local authorities and I accept this document as being a full explanation attaching to each section mentioned. It might have been better if the White Paper mentioned Section 20 in relation to Section 58.

It relates to a lot more than Section 58.

Could I ask the Minister one question in relation to the section? When the Special Employments Schemes Office was set up by the late Deputy Hugo Flinn, Parliamentary Secretary to the Board of Works, quantity surveyors were employed as his agents and paid by the commissioners. It may have been an objectionable arrangement but does this section now enable the Minister to assign such duties——

Section 15 agreed to.
SECTION 16.

I move amendment No. 12:—

In page 8, line 19, to insert "the duties of which relate to matters the same as or similar to the matters to which the duties of the first-mentioned office relate and" before "as".

The section as drafted allows a married woman to have a little more scope than was originally intended. The section was intended to enable her to be promoted within her normal sphere of activity but in fact it permitted any married woman to be promoted to any post in a local authority's service no matter whether that was her normal sphere of activity or not. For instance, an assistant librarian could be promoted to some other section but the amendment will confine her promotion to the activities of librarian. The intention of the amendment is to limit the promotion to an analogous type of employment. The Department of Health suggested that while a part-time dispensary midwife who is married might reasonably expect to be promoted from one dispensary district to a more lucrative one, it would not be reasonable to give her the opportunity of being promoted to an entirely different sphere of activity, such as matron of a maternity hospital. To allow her to come in as a married woman to that institution from which the existing staff have to retire on marriage would cause a great deal of dissatisfaction and the amendment would obviate this.

Amendment put and agreed to.
Section 16, as amended, agreed to.
SECTION 17.

I move amendment No. 13:—

After "thereto" in line 47 to add "and if compensation for disturbance and costs of removal are paid to the officer".

This amendment is intended to come as an addition to paragraph (5) of Section 17. In effect, as I understand Section 17, it amends Section 24 of the 1941 Act in such a way as to enable the transfer of an officer from one local authority to another in certain limited and specified circumstances. The effect of the amendment is merely to ensure that, if that occurs in accordance with the provisions of paragraph 5 of sub-section (3) of Section 24 of the 1941 Act, that local officer will be entitled to compensation for disturbance and also the cost of his removal from one area to another. It would seem to be a hardship to compel the transfer of an employee of a local body from one end of the country to another unless there was some provision made to compensate him for disturbance and to pay the cost of his journey and removal, particularly if it involves a man who has a house, a family and furniture. It would seem very harsh to transfer him from one end of the country to the other end, from Cork to Donegal, and expect him to pay for the cost of his journey and the transfer of his furniture and he might also sustain other losses caused by his disturbance.

I would again like to take this opportunity of complaining of this method of legislation. We have in Section 17 in fact no less than four different amendments of the 1941 Act rolled up into one section. It really becomes practically impossible for any person to ascertain what the law is when legislation is framed in this way. I know that it is not the Minister's fault but I think it is necessary on every occasion when measures of that kind come up framed in this way that members of the House should protest about it. I say quite frankly that, if this goes on, a stage will come when I will actually vote against the passage of legislation in this form even if I agree with the purpose of the legislation, because I think it will become necessary to be firm about it. I think Deputies on all sides of the House should join in adopting that attitude. It is the only way in which we can try to put a stop to what is an evil practice that has grown up for a number of years.

I hope the Minister will be able to accept the amendment. It is an amendment which, I know, the Local Government Employees' Union is anxious to see adopted and I hope the Minister may be able to meet their point of view in the matter.

I think there is more in this section than just the point which Deputy MacBride's amendment seeks to amend.

We are discussing the amendment at the moment.

I am discussing the amendment in relation to the section. The amendment in my opinion does not go far enough. I feel that there is a whole lot more involved and when we come to discuss the next amendment, to oppose this section, I will deal with it more explicitly. I do not think that the amendment, which removes in certain specific cases and in certain instances, an unjust situation created by a direction to move a person from one place to another, goes half far enough.

With regard to the section, first of all, the section proposes to legislate for new circumstances which are arising every day, for instance, the establishment of regional hospitals. As a result of the establishment of these regional hospitals it may be necessary to close down a hospital on a local authority and a young medical officer, probably only appointed a few years, may claim a pension if we have not some powers such as those proposed in the section.

With regard to the point made by Deputy MacBride that some compensation for travelling expenses should be paid to an officer, that has been the practice and, please God, it will continue to be the practice that reasonable travelling expenses will be paid. But, it is an entirely different thing to write that into a Bill because, if you do, you are giving each transferred officer, as a matter of right, power to claim compensation.

Take, for instance, an officer who is a married man whose wife may have a shop in the town and he is transferred from one part of the country to another or from one county to another. If that is written into the Bill, there will be nothing to prevent this particular officer claiming compensation for the loss of profits——

It is quite true, and the Deputy knows that that interpretation could be put into the section if the amendment were accepted. It has always been the custom in the Department of Local Government and everywhere else to pay reasonable travelling expenses to officers who are moved around and that will remain the custom. My objection is to writing it into a Bill in case we had fictitious claims made such as that I have just mentioned.

Major de Valera

What about bona fide claims?

If they are bona fide claims they will be paid.

Who is to determine?

The Minister—the appropriate Minister.

I would be quite satisfied if the Minister concerned examined the case himself but, obviously, he will never even hear of a case. The men will be transferred and some official in the Custom House or in Parkgate Street or somewhere else will write "Refuse" on the corner of the file and that is that.

No, that is not the practice.

Either these officers are entitled to compensation if they are shifted from one end of the country to another or they are not. If they are entitled, then there should be no objection to including it in the Bill.

Civil servants have no such right to compensation.

I will be prepared to settle with the Minister on the basis of providing payment to cover removal expenses, perhaps cutting out the words "compensation for disturbance".

That is the practice, of course.

If that is the practice, what is the objection?

Remember, there are three different Ministers, and probably four, that it could affect.

Yes. Well?

The Minister for Social Welfare, the Minister for Defence, the Minister for Industry and Commerce.

If that is the practice, is there anything harmful in giving the officials the advantage of including it in the Bill?

It is really administrative.

Major de Valera

Quite.

Civil servants have not got any such right written into any Act, but there has never been a complaint. I can assure the Deputy that when an aggrieved officer appeals against the decision of a local authority that appeal, unless it is ruled out as not being brought in time or for some other reason, is brought before the appropriate Minister. And the appropriate Minister deals with it. Why should he not?

Did the Minister consider that this is a matter which has caused a good deal of anxiety to the Local Government Officials' Union?

Actually I have discussed it with the union. They did not press it.

The union pressed it otherwise than through the Minister subsequently. I wonder would the Minister consider it between this and the Report Stage and put in some provision that would give the official something in compensation for disturbance—at least a sum to cover the cost of his removal?

We would be putting him then in a better position than the civil servant. As far as the Department is concerned, I, as Minister, will follow the practice which has come down through the years, of sanctioning the payment of reasonable travelling expenses and removal expenses.

Will that apply to the Minister's colleagues in the other Departments?

That has been the practice in all the Departments.

The Minister, I think, is now disclosing his intentions behind this Bill. The intention behind the Bill, in view of the remarks made by the Minister, is to transfer all local authority servants in fact to the Civil Service. It is no argument to say that because something applies for civil servants, it should also apply for local authority servants. A local authority official joins the local authority service on terms and conditions which apply in a particular area. A civil servant applies for a position and sits for an examination knowing that if he is appointed the area which the Government administers and which he will have to serve will be the Twenty-Six Counties. The practice has been that if he is transferred from one area to another it is more than likely that it will be on promotion or, occasionally, punishment. In the case of the local authority official, however, we are now going to bring about the situation where an official in Waterford can be directed to take up a position in Donegal without any regard whatever to his living circumstances.

As the Deputy will appreciate, you could not have a region which would consist of Waterford and Donegal.

The regions can be extended——

The one I should like to see extended would be Donegal and Derry.

I am afraid the extension will go very far and I can see a position where an official living in Dublin City and having a family and possibly a wife who has a business in the city, will have to tear up his roots and move off to some other part of County Dublin and break up his home.

There is no great difficulty in travelling from one part of County Dublin to another.

The regions as defined under the health arrangements may be very far flung. They might take in up to three areas. Now the Minister says there is no difficulty in these transfers. An official may live convenient to the office in which he works and under this arrangement he may have to travel ten, 15 or 20 miles. It means in fact that he might have to change his entire circumstances of living and transport system.

Is the Deputy speaking to the amendment or to the section now?

I am speaking to the case the Minister has made on the amendment. This discloses to me an attempt to run local authority servants exactly under the code governing the Civil Service.

That does not seem to arise on the amendment. Maybe it does on the section.

The Minister has made a comparison between what applies to the civil servants and to local authority officials.

In relation to travelling expenses.

Major de Valera

The Minister began on the section and proceeded on that basis but added to it in order logically to deal with this aspect. I do not think we should be tied by technical rules in a debate of this kind.

God knows we are not.

I should like to suggest that the points made by the Minister and Deputy MacBride might be reconciled if the Minister were prepared to consider an amendment which would write in the right to expenses for removal subject to the sanction of the appropriate Minister. I think Deputy MacBride would be satisfied if that right was given provided there was something to ensure that the Minister would deal with it—that it would not be dealt with at local authority level.

Would that appeal to the Minister?

I shall consider it before the Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That Section 17 stand part of the Bill."

Major de Valera

On the section I do not want the Minister to have any fear that he is being pilloried. In a debate of this kind, you should not be tied by technical rules because we want to try and get the best form of Bill possible. In this section, we have a White Paper which sets out the intentions of the Minister, and in this particular case I think it is expedient that I should quote the White Paper reference to the section. According to the White Paper:—

"Under Section 24 of the Local Government Act, 1941, the appropriate Minister may require an officer to resign in certain circumstances, and if he refuses, the Minister may remove him from office. The power can be exercised only where the Minister is satisfied either that the holder does not possess a qualification necessary for the office or that on account of any alteration in the conditions of service or in the duties of the office, it is in the public interest that the holder should resign. There is some doubt as to whether the Minister is empowered by the section to require an officer whose office has been abolished to resign. The amendment proposed in Section 17 of the Bill will remove this doubt."

If an office has been duly abolished, having regard to Section 24, it is possibly reasonable to ask that the Minister would have power to require the official to resign. But let us have a look at this section on the powers of resignation. Is it the Minister's intention to ask power to do this in effect—abolish the office simpliciter? I think he has ample powers for abolishing offices and by that process then be able to ask the holder to resign. Is that what the Minister seeks to do? If it is, then there is something for the section as it is drafted. But if it is the Minister's intention to remain within the spirit of Section 24 (1), then I think the drafting of this section needs attention. Let me refer the House to Section 24 (1):—

"Where the appropriate Minister is satisfied—

(a) that the holder of an office does not possess a qualification which before the appointment of such holder to such office, has been declared under this part of this Act to be a qualification for such office, or"—in other words, where the man is unqualified—

(b) that, on account of any alteration (whether it has already occurred or is in contemplation) in the conditions of service or the nature or extent of the duties attached to such office, it is in the public interest that the holder of such office should resign therefrom."

Then the Minister has certain powers. Now this section proposes to add a clause (c) that such office should be abolished, and there is no qualification to that. Let me draw the attention of the House to sub-section (b). No one will cavil with sub-section (a). The Minister can only require the officer to resign if, on account of any alteration in the conditions of his service or in the nature and extent of the duties attached to such office, it is in the public interest that such officer should resign. There is a certain limitation; in other words, under that section the Minister cannot come along and say there has been a change in conditions and it is in the public interest that he should resign.

Again, if there is a simple abolition —and this is one of the ramifications of the code that I am not in a position to deal with in detail just at the moment —the putting in of (c) to the effect that such office should be abolished on its own brings about the position that the Minister may exercise the powers under Section 24, provided only that such office should be abolished simpliciter. There is no qualification. There is nothing to say under what conditions and so forth. I would suggest, therefore, to the Minister that he should consider this matter between this and the Report Stage. We are opposing the section, but one thing which would remove the opposition I am making now would be if he did not put in sub-section (c) but inserted instead the very words he has here—“That such office should be abolished”—at the end of sub-section (b) following the word “therefrom”. Then the Minister would be able to exercise powers as follows: sub-section (a) as it is at present and then (b):—

"that, on account of any alteration (whether it has already occurred or is in contemplation) in the conditions of service or the nature and extent of the duties attached to such office, it is in the public interest that the holder of such office should resign therefrom, or that such office should be abolished."

I could accept that.

Major de Valera

I do not want to rush the Minister because we are dealing with a technical point but, if he can accept that, I shall be very grateful. I recommend it to him for examination because not being in a position to give it the careful consideration it deserves I nevertheless think it requires some little adjustment.

I hope the Minister will forgive me for being suspicious. I would like the legal gentlemen here to follow the layman's argument based on suspicion. Section 15 enables the Minister to give additional duties to any particular office or office holder. If we pass Section 17 as it is now envisaged a particular officer, because of the additional duties imposed on him under Section 15, may prove to be unqualified for his new position and, if he does not resign, he can be dismissed and the office abolished.

Major de Valera

That is another point.

The qualifications remain unchanged.

The Minister has power under Section 15 to add additional duties to an office. The holder of that office may not be capable of taking on these additional duties.

The Deputy means his qualifications may not be of the required standard.

The Minister directs an individual, whether he knows him or not: "You will do so and so extra work over and above your ordinary duties." The officer takes up the duties. A report reaches the Minister that the man is not carrying out these duties satisfactorily and he is certainly not qualified now for the position to which he was originally appointed plus the additional duties; the Minister says: "Very well, get him to resign" and, if he does not resign, the Minister will abolish the office. That is the answer to Sections 15 and 17 as I interpret them.

That is not the answer and the Deputy knows very well it is not. The qualifications for any additional duties which may be imposed under Section 15 will be the very same as they were when he was originally appointed. If additional duties are added and the officer is unable to carry them out for some technical reason——

For health reasons, for physical reasons or for any other reason.

——the office will not be abolished.

Major de Valera

I think Deputy Briscoe is perfectly right in his point, but he is late on the section. I think this does not arise on Section 17. It arises in point of fact on Section 24 (1) (a) of the 1941 Act. The Minister might bear that point in mind. If the Chair will allow a digression, supposing the recalcitrant individual has certain degrees but is not an M.A.O. the Minister can make a regulation relating specifically to that office requiring the degree of M.A.O. and, since the individual concerned has not got that degree, the Minister can then invoke Section 24. However, that does not arise on this section except in so far as we are dealing with an amendment of the section. It is nevertheless a point the Minister should bear in mind. I agree with Deputy MacBride that in future we shall have to be very careful in what we do in the way of giving powers here.

I have dealt with one point and the Minister has generously met that point wholeheartedly. His attitude is very helpful to the debate. But there is something more in substance having regard to the section. The second paragraph in the White Paper in relation to this section states that: "This is also intended to facilitate the transfer of officers from one local authority to another." Section 24 of the Local Government Act, 1941, enables the transfer of an officer from one office to another under the same local authority where it is necessary in the public interest to abolish the first office. The words "public interest" are incorporated there. With the setting up of regional authorities and health institutions and the closing down of existing institutions it is necessary to provide for the transfer of officers to the service of other regional authorities. The proposed amendment also includes provision to permit an officer who, as part of that rearrangement, is asked to take up duty in another locality on the ground that his office has been abolished. Clearly under this section the Department and the Minister have, I fear, very good reason to anticipate what might be called unreasonable claims or unreasonable attitudes.

I think it would be unfair not to acknowledge that fact. Therefore, there is a question again, as we had before, of what is the way to give the Minister sufficient power to deal with a situation reasonably and guard against giving him excessive power which, in principle, can be exercised and which, in principle, is bad. Again, I fear that, in over-anxiety to cover the legitimate needs and demands of the administration in this matter, the wording of this section, particularly in the amendment to be added to Section 24 is objectionable. I must join with Deputy MacBride and say how impossible it is in debate to deal reasonably with Bills when they are presented to us in this referred form. It is practically impossible to be intelligent if we get legislation by amendment.

And every county councillor throughout the country will be supposed to understand the effect of this Bill.

Major de Valera

Those of us who are trained lawyers and have actual experience of this code know that in the House we have to ask the Minister for advice and have to be very tentative about stating an interpretation of a thing put before us. How can the people who are not dealing with it understand it? However, that is an aside.

The Deputy will appreciate that I am in charge of the Department exactly five months.

We are not blaming you.

Give me time and I will endeavour to codify the law.

Major de Valera

I think the Minister would be one of the first to draw attention to the same point if he were sitting on this side of the House. That exasperation on my part was prompted by the fact that I have to relate sub-section (5) to be added at the end of an already voluminous section—which, incidentally, occupies practically one and a half pages of the Statute Book——

It includes resignations and abolishments.

Major de Valera

That is generally a bit of a mess. "For the purpose of paragraph 5 (b) of sub-section (3) to this section..."—we have to get paragraph 5 (b) of sub-section (3) of Section 24 of the Act of 1941. Sub-section (3) starts off by referring to the provisions of the immediately preceding sub-section that is, sub-section (2).

What does that contain?

Major de Valera

Let us deal with this sub-section (3) which states: "The position of such holder would in the opinion of the Minister not be materially altered to his detriment if he were transferred from the first office to such office." I want to try and put it clearly. As a matter of fact, it is impossible to try and relate these sections logically, talking in this House like this. However, what it means is that in the 1941 Act—which some Deputies here have scarified for the powers it has given to the Executive, and with some of which scarification I would agree——

Hear, hear!

Major de Valera

——there was a safeguard for office holders. This particular safeguard read, if I am reading the provision right, on my feet: "Where the position of such holder would, in the opinion of the Minister, not be materially altered to his detriment if he were transferred from the first office to such office...." It is impossible to explain it here now. Will the Minister accept my simple statement that there was a safeguard for an officer if shifting him around was to be to his detriment? What have we?—something which says that something which would be clearly to his detriment is not to be to his detriment within the meaning of the previously referred to provision. In other words, the fact that the duties of another office are to be performed at a distance from the place or places in which the duties of the first office were performed would not be capable of being regarded as rendering the position of the office holder materially altered to his detriment, if the appropriate Minister is satisfied that neither the local authority under whom the officer was employed nor the local authority offering the other office are in a position to offer an alternative office in the same place or places in close proximity thereto. Put it this way. Supposing an officer is to be— I suppose we will hear about Section 58 for this one again——

You will not, for about a year, the way the Deputy is going on.

Major de Valera

It certainly is very amusing and refreshing to find Deputy Davin now in the rôle of authority and the director of the administrative interest against the employee. It just shows that there are two sides to every story.

Yes, and you are on both sides.

Major de Valera

The fact is that this section says that if an officer is removed from one place to another, his removal is statutorily declared not to be regarded as rendering the position materially altered to his detriment, if the appropriate Minister is satisfied. I am just wondering if this is fair. Supposing an officer—I know this is far-fetched but, within the actual wording of the section there is nothing to prevent this applying to, say, an officer removed, say, from County Meath to County Donegal——

No. It is not within the same region.

Major de Valera

Who is to define "region"? They can be shifted around —as was more or less hinted by another Deputy earlier.

You cannot geographise the country at the moment to find the region.

Major de Valera

There is nothing here at the moment. We are dealing with legislation and that construction is possible within the terms of this legislation—and it is on these grounds I am objecting to it. Surely, in actual physical and material fact, the removal of an officer or the causing of an officer to be removed—I will not even specify places; I will say distances—a matter of 50 or 100 miles (50 miles is not too far) is to his detriment, no matter how we like it. Supposing any of us are suddenly ordered to move 50 miles away.

It is not to his detriment to qualify him for a pension.

Major de Valera

It is certainly—in the material sense—to his detriment. Here we are using the old dodge to declare that in notion or contemplation of law it is not to his detriment. That is what we are doing. Frankly, I do not think it is necessary so to do and I think it is not satisfactory. I think every officer, and one can understand their case, would say that that section should be made to read that it would be mandatory on the Minister to regard it as to their detriment. They would make the case—and nobody can say it would be unreasonable of them to make the case—that such removals are to their detriment and that cognisance should be taken of them as such. For instance, even Army officers who are transferred from one barracks to another have considered and made representations that it was to their detriment—I think Deputy Briscoe or some other Deputy mentioned certain punitive measures which involves shifting people around. They would ask to have such removals regarded as to their detriment and I say they would not be unreasonable. On the other hand, there is a certain reasonableness from the Minister's point of view. If you are going to have something defining "detriment" could it not be put in in such a way that the Minister could have power to consider every individual case on its merits? We are dealing with office holders; there are not so many and it is not such a load on the Minister. They should get more than an omnibus sweep out.

The Minister has this power.

Major de Valera

According to that, the Minister himself could not even regard it, no matter how equitable in any particular case, as being to the detriment of the officer if he was satisfied that neither the local authority under which he was employed nor the other local authority are in a position to offer alternative employment in the same place. The Minister is tying his own hands. He says he has power at the moment to consider individual cases and it will be to his detriment if this goes through. The Minister will be tied down as well as anybody else and he will not be in a position, for the purpose of making some amends or compensation to the officer concerned, to regard it as to his detriment, no matter what the equity—that is, if I read the sub-section correctly. If I am wrong, the Minister will tell me, and I will accept his word.

The latter part of this is objectionable, too, because it makes it worse. The latter part means the Minister has to ask himself this question: can the local authority to which this man belongs, employ him where he was or near where he was or can the local authority offering the other office employ him? If the answer to both these questions is in the negative then it is not to his detriment. Is that not the position? I am wondering whether the Minister's draft is not going a little bit too far. In this, as I say, the office holders themselves would seek deletion of everything after "if" in line 42 and the substitution of the word "we" for the phrase "shall not be capable of being". I will not go to the extent of positively pressing that amendment on the Minister because I have not the facilities for looking into all the ramifications of a matter like that. At the same time, that is their point of view, and I think it is fair to advert to it. Would the Minister be good enough to look into this matter again? I will not ask for any undertaking——

I will promise to look into it, but I cannot give any undertaking.

Major de Valera

If he will do that, I will let the matter rest for the moment. It is impossible to deal coherently here on the Committee Stage with legislation presented to us in that form particularly with reference to the type of section under discussion.

I wonder would the Minister agree with this proposition, that at the moment we have no fixed regions. The regional idea has not yet been specific——

We certainly have some of them fixed, for instance Connaught and Donegal.

We have not completed our regional arrangements yet and there will be additional regional planning under the Health Act and now we are legislating to make people comply with changes from where they operate to other places and the Minister says: "It will be within the region; it will not be so unreasonable." Surely, the proper thing to do is to say that we will leave this Bill out until we appoint the regions.

There are some actually in operation.

I do not know where they are. I know there are some contemplated in Leinster which have not been fixed, and we are dealing to-day with a Bill that will concern not only pure local government but that will concern itself with health and social welfare. I certainly feel that we could easily legislate now in a form that would create injustice later and at the same time the House would have to come and decide to amend this legislation because of the injustice which followed. It appears to me to be reasonable to suggest that until you have completed dividing up the country and your geographical description of each region, you should not legislate now in the dark that a man is bound to go wherever he is sent within these regions. You could have a whole province regarded as a region. I think the Minister will agree that this is going a bit too far and is unfair. I certainly object very much to saying now: "I am going to fix the terms and conditions for future employment of certain officers for regions or for services in regions not yet agreed, not yet, if you like, even envisaged." I think Deputy Davin ought to see the sense of that. Deputy Davin ought to agree that it is not fair to be fixing terms and conditions for a job not yet specified. At least you have to know what the job is before you fix your terms and conditions. I appeal to Deputy Davin to use his influence with the Minister to see that this, to me, offensive section is postponed, at any rate until we see what the regions are.

Will not a lot of them be on promotion? Does the Deputy not know that?

Deputy Davin is taking the view on what you call hope. I do not know which officers are going to be found unsuitable under this Bill and either their office or themselves put out of existence. I am not prepared to argue that it is fair to legislate terms and conditions of employment for a job not yet fixed. I do not think Deputy Davin with all his experience in the trade unions would agree that he would go to discuss terms and conditions of employment for a job not yet specified. Surely this is on the same parallel. I would ask the Minister to withdraw that particular section at least until we see what the terms and conditions are going to be for those who are going to be affected when the new regions are completed.

This discussion has been very interesting from many points of view but particularly from the point of view that the championing of trade unionism which has sprung up here in the House in the last couple of hours has been very encouraging——

We have always been champions of trade unionism. Look at all the trade union legislation we have passed.

The only thing about this is that the Local Government Officials' Union are very definite about opposing this particular section and no doubt they briefed the right people——

On a point of order— I have not met even one representative of the Officials' Union concerned and I was briefed by nobody. I was in consultation only with my own colleagues so that the Deputy might withdraw that remark.

Might I explain that I did not refer to Deputy Briscoe as briefed upon the point of view he put forward here, so that he need not feel any sense of grievance with regard to the remark I made. However, I do agree with the mover of the amendment that it would be to the detriment of an officer if for some reason or other he were removed from one place to another, particularly say from Meath to Donegal. But at the same time, if this thing has been going on without official authority for a number of years, surely there would be a very little objection to having it made legal at the present time, because if everything in the Act is not made watertight does it not follow that some time or other those things will be challenged and it will be very awkward, shall we say, for somebody to find that they are being paid moneys, or that something is being done for which there was no legal authority? I would like the Minister to consider this before he finally writes it into the Bill and at the same time I think there is a certain amount of justification for something like that.

Major de Valera

In view of the turn the discussion has taken I would like to ask the Minister one question. Deputy Briscoe mentioned regional activities. One of the difficulties in this amendment to which I would like to draw attention is that it appears to me that it could be used to compel an officer whose office was abolished or made redundant under some provision to accept a similar post in a county or a district at a distance, somewhere remote, without reference to regional organisation and that this could bring about a situation like that, simpliciter.

That is the law as it stands. A local authority officer may be shifted from one area of the local authority to another area of the same local authority. For instance, an officer may be transferred from Bundoran—as the law stands—to Moville, a distance of 100 miles, but may not be transferred from Bundoran to Sligo, a distance of 20 miles.

Major de Valera

That only bears out the Minister's problem, and I sympathise with him and I want to meet that type of problem, but I submit there is a provision with regard to detriment, and it surely is to a man's detriment to have these things happen. As I see it, the clause could be used to compel a man to accept a similar post in another county.

"Material detriment", is not that the phrase? That is for pension rights only.

Major de Valera

"Materially altered to his detriment."

That is for pension rights.

Major de Valera

However, I have made my point. Again looking at the drafting here one would not want to go on the assumption that it all related to the possible functional or regional reorganisation in the future. It has immediate effects which certain people consider undesirable.

And we have certain regions clearly established by law at the moment.

Section 17 agreed to, Deputy Briscoe dissenting.

SECTION 18.

Question proposed: "That Section 18 stand part of the Bill."

Section 18, by reference to Section 27 of the 1941 Act, I understand, has the effect of taking away from the local authority the power of suspending an officer and vesting that power in the Minister only. Possibly, that is a bald translation of this uninformative amendment.

It is the meaning of it anyway.

It may be quite a proper thing to do——

Perhaps the Deputy would refer to Section 14 (m) with which we have already dealt.

Major de Valera

That is the thing I called "the new animal".

We had a debate on it.

There may be quite a good case to be made for vesting that right in the Minister only but it is rather, shall I say—not revolutionary, but an innovation—that a local authority should be prevented from having the right of suspending its own officers in case of misconduct and that only the Minister should have that right. However, I am quite open to conviction—it may be quite necessary as some local authorities might be inclined to abuse their rights but it does seem to have the effect in the ultimate analysis of reducing the powers of local authorities to deal with their own officers and vesting that power in the Minister. The effect of it is to reduce the power of the local authority and transfer more power to the hands of the Minister.

It is the very opposite, Deputy. We are giving much more power to the local authorities.

I know it is one of the vices of this type of legislation——

I quite agree there.

But I have some doubt as to whether the amendment has even the effect of doing what it is intended to. I will have to read the amendment and the section.

Read the section as it will be amended.

Section 18 provides that Section 27 of the Act of 1941 is hereby amended by the deletion in sub-section (1) of "of such local authority or", "otherwise", "such local authority or" (where those words occur secondly) and "(as the case may be)".

Major de Valera

Why do we not pass a simple Bill providing that the Minister for Local Government can do what he likes and save a lot of people trouble?

The net result of all that is to take away —the House may be surprised to learn—the right of local authorities to suspend officers and to vest that right exclusively in the hands of the Minister. Because, as I read Section 27 of the 1941 Act as it is to be amended, it will read as follows:—

"(1) Whenever in respect of the holder of an office under a local authority there is, in the opinion 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 unfit to hold such office, the appropriate Minister 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."

So that the effect of the section is to take away from the local authority the powers which they had to suspend an officer.

We have already dealt with paragraph (m) of Section 14 which substitutes for certain other powers being taken away.

I agree absolutely with the argument that Deputy MacBride is making. It is not fair for the Minister to say that sub-section (m) is a right which they have got in substitution for all rights being lost. The amendment previously discussed, to which the Minister refers, purely allows a manager to deal with an offender of a very minor nature and, because he is getting that right, all the rest of the rights are forfeited.

You agreed with paragraph (m).

I do, but not with this one.

Paragraph (m) deals with a completely different set of circumstances and deals with the powers of the county manager or city manager.

Might I voice another protest? I am afraid I have not got a copy of the White Paper available. I am talking from recollection of what the White Paper says in regard to Section 18. Bearing in mind that the one effective purpose of Section 18 is to deprive the local authorities of the right to suspend an officer, I think I am right in saying that the White Paper does not mention that and conceals it most carefully. I think that is a typical instance of the way in which a White Paper should not be produced in the House. Obviously, the purpose of that portion of the White Paper is not to inform the House but to mislead the House as to the effect of that section.

Absolutely.

There may be a perfectly good argument for adopting Section 18. I have not heard of it. I am suspicious of it by reason of the way in which it is presented, in which its effect is concealed both in the section and in the White Paper.

Major de Valera

I sympathise with some of those Deputies who say the lawyers take up time but this is forced upon us by the particular structure of this Bill. We cannot disentangle it. Let me go back to Section 14 (m). Section 14 says that Section 19 of the Act of 1941 is amended. Deputy MacBride will recollect that on Section 19 he pointed out that Section 19 applied to remuneration. "The appropriate Minister may for all or any of the following purposes make regulations applying to office holders and their offices." Then it says: "providing for the imposition by local authorities of suspensions from the performance of duties, the non-payment of remuneration during the continuance of the suspensions and upon the determination thereof and forfeiture in whole or in part, etc." Taking the first, in spite of what was said when we argued it the last day, the regulations may provide for the imposition by local authorities on holders of suspensions from performance of duties, the non-payment of remuneration. Now, we pointed out on that occasion that this short-term disciplinary suspension was a very nebulous thing that seemed to appear there. Am I correct in that? I think it is not at all clear that Section 14, sub-section (m) confers on local authorities the power of suspension. All he can do is provide for the imposition by local authorities on holders of suspension, the non-payment of remuneration. In other words, for the operation of that section, it appears to me that there is a condition precedent there that there must be a suspension there already. Am I right in that or am I wrong?

And non-payment of salary during that period.

Major de Valera

Will the Minister appreciate the point? Section 14 (m), as far as we can see it here, provides for a question of remuneration for suspended office holders. In this section the Minister is taking away the power in Section 27 of suspending officers in the sense that it was there already. Now, let me take the White Paper to which Deputy MacBride referred. The White Paper says:—

"Section 27 of the Local Government Act, 1941, provides that the appropriate Minister or the local authority can suspend an officer but only the appropriate Minister can terminate a suspension."

That is statement number one. Then it says:—

"The suspension by local authorities of officers will henceforth be dealt with in accordance with the regulations to be made under paragraph (m) of Section 14 of this Bill. The reasons for this change are set out in the note on that section."

Quite apart from the reason for that change we have what I have said in regard to Section 14. But, take the effect of this amendment we are dealing with in Section 18. I am going to delete the words "of such local authority." We then have:—

"Whenever in respect of the holder of an office under a local authority there is, in the opinion of the appropriate Minister, reason to believe that such holder has failed to perform satisfactorily the duties, etc.

—or is unfit to hold such office—" and the qualifying word apparently is taken out there—

"such local authority or the appropriate Minister may suspend ..."

In this case, according to this, the local authority can only suspend if the Minister is of opinion in a certain way. Am I right in that? I would like to get that clear. I wonder would some other Deputies help me in this. Am I right in saying that as a result of this amendment in Section 18, the effect will be that the local authority, if it can suspend at all, such local authority could only do it with the consent of the appropriate Minister and then, if the words in brackets "(where those words occur secondly") mean anything, the local authorities' power of suspension is completely removed by Section 18. Am I right in that?

Major de Valera

Where am I wrong?

Because they have power still under Section 14 (m).

Major de Valera

Let us get clear on that. Am I right that, save for the power under Section 14——

Major de Valera

——this Section 18 removes all powers of suspension under Section 27?

That is correct.

Major de Valera

Very good. Save for the powers under Section 14, Section 27 removes all powers under Section 27.

Of suspension.

Major de Valera

And heretofore the only powers of suspension that existed were powers under Section 27.

Yes, Section 27.

Major de Valera

Therefore, save for Section 14, we are now removing all powers of suspension heretofore vested in the local authority.

May I interrupt the Deputy for a second? It is a net point as to whether the local authorities will have power to suspend or not. May I suggest to the Deputy that the Minister should tell us now how a local authority would have power of suspension?

Under Section 14.

Major de Valera

I know I am being an encumbrance, but I want to get this on the record. I want to have it on the record intelligibly, but I am afraid I am failing to make myself clear. Up to the present moment local authorities have had power of suspension conferred on them under Section 27 of the 1941 Act. These powers are now to be removed from them by the Minister. He says he is giving compensation under Section 14 of the Bill; that they will have compensatory powers in that. I have categorically to contradict that impression. According to Section 14 of the Bill, taking in its context Section 19 of the 1941 Act, the appropriate Minister may make an Order within the terms of Section 19 to provide:—

"... for the imposition by local authorities on holders of suspensions from performance of duties (including short-term disciplinary suspensions, not exceeding seven days), the non-payment of remuneration during the continuance of the suspensions and, upon the termination thereof, the forfeiture (in whole or in part), payment or disposal otherwise of remuneration which would, but for the suspensions, have been paid during the periods thereof."

That is paragraph (m). I would ask the Minister to look at the wording of that.

I would refer the Deputy to Section 19, sub-section (1) of the 1941 Act which means holders of offices, not holders of suspensions.

Holders of suspensions.

Major de Valera

I admit that the Minister has given a most ingenious explanation, and I must compliment him. I would ask the Minister to get Section 14 and try and make it explicit. I know it is arguable— holders simpliciter, holders and so forth——

If the Deputy would now look at paragraph (j) of Section 19——

It has nothing to do with it.

Major de Valera

I accept it. The Minister has made a very ingenious point of law. There is a very good case for argument in the courts but we are not in court. Let us clear it so that it will not be just an argument in court. The Minister is quite right: it is capable of interpretation in the case of holders as being holders simpliciter not holders of suspension, if we innocently read it as any person reading ordinary English would read it. The imposition of suspensions on holders is what the Minister is saying. I congratulate him because it is open to that interpretation. But I think the Minister should make it quite clear.

Go back to paragraph (j) of Section 19 of the 1941 Act and you will find "holders" again. Then, again, if you refer to paragraph (j) of Section 14 of the Bill you will find it refers to "holders" not "holders of suspensions" just "holders" of offices.

May I point out that Section 19 of the local Government Act of 1941 empowers the Minister to make regulations, and, of course, amendments of regulations. That is all it does. If the Minister, by Section 18 of the Bill, amends Section 27 of the Act of 1941 in such a way that only the Minister can suspend, surely he can now make a regulation under Section 19, as amended, in contravention of the statute law.

Would the Deputy read Section 14 (m)? That is an amendment of Section 19 of the 1941 Act.

Yes, but——

Would the Deputy read it? It says:—

"Providing for the imposition by local authorities on holders of suspensions from performance of duties (including short-term disciplinary suspensions, not exceeding seven days), the non-payment of remuneration during the continuance of the suspensions and, upon the termination thereof to forfeiture (in whole or in part) payment or disposal otherwise of remuneration which would, but for the suspensions, have been paid during the periods thereof."

What more have they got? What more do they want?

With all due respects that is a paragraph of a section which empowers the Minister to make a regulation. Section 19 of the 1941 Act prescribes that the appropriate Minister may make regulations. Then the different paragraphs deal with the types of regulation. There is nothing in the paragraph more than the type of regulation. Now the Minister says that the appropriate Minister may make a regulation which is in contravention of Section 27 which is amended by Section 18 of the Bill.

It is quite simple. Section 14 of the Bill provides that Section 19 of the 1941 Act is amended, and goes on to provide for the imposition by local authorities on holders, etc. Remember it says, "holders" not "holders of offices". They are being given power to suspend.

That provides for the type of regulation the Minister may make under sub-section (1) of Section 19 of the Act. Why does the Minister want to deal with Section 27 of the Act?

Because it deals with the right of the Minister to impose suspension. The Minister is the only person who may terminate suspension.

That is already in the Act of 1941.

It is most peculiar that we have not got an amendment to this section.

We have not all got a staff behind us.

Major de Valera

This is not an argument, as the Minister is aware, where "holder" stands on its own in reference to sub-section (1) of Section 19 and therefore the paragraph is to be construed as meaning that the Minister may make regulations providing for the imposition of suspensions by local authorities. Why does it not say so? In the drafting of the Bill would not it be important to provide for the imposition of suspension?

The Deputy will appreciate that I am not the draftsman.

Major de Valera

I do. Deputy Sheldon now comes back with an interesting point for the Minister. According to him it was unnecessary to provide statutory powers providing for suspensions at all. Now we are entering a big field.

May I ask at this stage if it would be possible, if private members' time could not be taken, that we could go on with the debate on the Bill? It is quite true to say that on the progress we have made so far we will not finish this Bill this time 12 months.

Major de Valera

Could we not give the other hour-and-a-half to it?

Anything is possible provided there is agreement.

I understand suggestions of this kind are usually discussed between the Whips.

Anything is possible, so far as procedure is concerned and provided there is unanimity in the House.

Deputy Smith will appreciate that in the short time at our disposal since the matter arose we took some steps.

The Parliamentary Secretary will understand that in the short time at our disposal, it would be impossible for us to express an opinion on the suggestion made by Deputy Desmond.

Progress reported; Committee to sit again.

In relation to the motion on the Order Paper, I understand that the mover of this motion is not available and I have not got his permission to move the motion in his absence. I did not understand that this crux would arise. I regret the position so far as I personally am concerned because I am not prepared to go ahead with the following motion standing in my own name.

That means the two motions go out.

I apologise to the House. It is not my fault.

I am not trying to fix the blame on anybody. They can, of course, be reintroduced and the same priority remains.

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