Did the Minister get any information on that section in the past week that would induce him to do what we suggested, namely, to withdraw that section from the Bill? It was pointed out here to him, when we were discussing this Bill before, that the whole section is unnecessary. It is a section put in to withdraw or render useless the powers he was giving under Section 4. I wonder if the Minister has thought that out since?
Committee on Finance. - City and County Management (Amendment) Bill, 1954—Committee Stage (Resumed).
Question again proposed: "That Section 16 stand part of the Bill."
Possibly it is right that, in view of the amount of discussion we had on the section, I should explain it in detail to the House and I propose to do so.
Section 61 of the Local Government Act, 1925, placed a responsibility on the chief executive officer of every local authority to advise the members before they voted on any resolution to do any act in consequence of which an illegal payment would be made or a loss or deficiency in the funds of the local authority was likely to arise. The names of the members who voted for the resolution, were recorded in the minutes. The purpose of this section was to protect the members of the local authority by requiring the chief executive officer to give warning whenever the council were considering some proposal which, if adopted, might result in a surcharge or charge. If the warning were not given the council as a body might subsequently be surcharged or charged. When, notwithstanding a warning given under the section, the council adopt the proposal the names of the members voting for the proposal are recorded in the minutes and these members and no other member are liable, in the event of a surcharge.
Under the law dealing with audits the auditor is required to surcharge a person making or authorising any payment which he deems to be illegal. He must also charge any member or officer with the amount of any loss or deficiency which he deems to have been caused by that person's negligence or misconduct. Where an objection is made under Section 61 of the Local Government Act, 1925, or under Section 16 of this Bill it does not necessarily follow that the auditor will make a surcharge or charge. The auditor may, notwithstanding the objection made, consider that the payment that arises was not illegal or that no loss was suffered by the local authority. Even where a surcharge or charge has been made it does not follow that the person surcharged or charged must meet the amount involved. He has the right to appeal either to the courts or to the Minister to test the validity and the equity of the auditor's decision and to have the amount involved remitted.
In Section 61 of the Local Government Act, 1925, the term "responsible officer" is defined as meaning the secretary, clerk, resident medical superintendent, or other chief executive officer of such local authority. This definition was all right in the pre-management period. It must now be brought into line with the management code under which the manager is the chief executive officer of the local authority. This is done in subsection (1) which places responsibility for objecting on the manager or in his absence such other officer as may be designated by him.
During the discussion on this section there was a good deal of confusion with Section 4 which provides that the members of the local authority may require a manager to do any particular act, matter or thing which can lawfully be done and for which the money is or has been provided. It has been argued that Section 16 nullifies Section 4. I think it was Deputy Blaney who suggested that on the last evening here. This argument is not correct. A requisition under Section 4 docs not apply to acts which are unlawful. It applies only to lawful acts.
Why is it in Section 16, at all, then?
Perhaps the Deputy was not listening. A requisition to do an unlawful act does not, however, necessarily involve an illegal payment. For instance, the council could requisition a manager to close a road to traffic without complying with the necessary statutory formalities. The manager need not comply because to do so would be unlawful. No payment is, however, involved and no surcharge or charge could arise. On the other hand, an act which is lawful could give rise to a surcharge or charge. For example, a manager could be directed to accept a tender other than the lowest submitted. I quoted that example the last night. It is perfectly lawful to accept a tender other than the lowest and the manager would have to comply with the requisition under Section 4. The auditor might, however, consider that the acceptance of a tender other than the lowest involved the local authority in a loss or deficiency, and he might feel he should make a charge.
There was also some confusion arising out of the use of the word "deficiency." The words "deficiency or loss" come from the statutes dealing with audits and their meaning has been judicially defined time and time again. A deficiency in the funds of a local authority arises where a sum of money has not been brought into account—for example where a sum due to the local authority by a person is remitted without sufficient reason. It would seem that some Deputies confused this word "deficiency" as used in Section 16 with insufficiency of funds to provide for the carrying out of a work which was the subject of a requisition under Section 4. Under Section 11 the manager cannot exceed the amount provided in the estimates for a particular purpose unless the local authority authorises the proposed excess expenditure. The provision of funds is a matter solely for the elected members and has no relevancy whatsoever to Section 16.
Reference was also made to the practice of local authorities of inserting in an advertisement inviting tenders a clause to the effect that the local authority will not be bound to accept the lowest or any tender. While an invitation to tender and the submission of a tender does not constitute a contract nevertheless in order to avoid controversy and to prevent litigation, public bodies usually consider it desirable to make it clear to contractors that they are not bound to accept any tender; that they may decide to carry out the work otherwise than by contract or that they may accept any tender other than the lowest when they consider it desirable to do so, for example, because they are not satisfied as to the competency of a particular tenderer.
It is necessary to stress that the question of warning does not arise where a local authority are proposing lawful expenditure outside the provision made in the estimates, e.g., the repairing of a road the repair of which was not included in the road works scheme. Once a work requisitioned by the members is a work that can lawfully be carried out and the council provide the money (by authorising the expenditure) the manager must carry out the work. If, however, he considered that there was a cheaper way of doing the work he should warn the members and Section 16 would then operate. I think I have made the matter very clear. Under Section 4 the council may requisition——
Something that is lawful to be done.
Exactly. This section does not apply except where the words "deficiency or loss" might occur. As I have pointed out it could occur in the acceptance of a tender.
The terms, and provisions of this Bill apply to local authorities where a county manager operates the local authority functions. Is that not so?
Yes.
And to those only.
Yes.
It does not apply to a vocational committee or a county committee of agriculture?
No.
Last Thursday evening the Minister tried to indicate that.
The 1925 Act has a provision similar to this to deal with such bodies.
I know the terms of that provision, and so forth.
There was no manager then.
No. It is only since we have had the county management system that we have this.
To-night the Minister laid great stress on the fact that a local authority might take a tender other than the lowest tender. Where, in law—where there is a manager—have a local authority power to take any tender—even under this Bill, when it becomes law?
Section 4 gives them all the power they require.
It does not empower the local authority to accept tenders for anything. I want the Minister to be specific on that point.
Of course, it does not—to direct the manager to accept a particular tender.
Under Section 4 they may do a thing that is legal——
Lawful.
——in the reserved functions of the council. There is no reserved function and there is nothing in Section 4 that empowers a local authority to accept tenders.
I did not suggest for a moment there was.
In this Bill there is some provision about receiving tenders and making rules in connection with the receipt of tenders but there is no provision in law, and the Minister well knows it. There is no use in trying to bluff the House.
Would the Deputy read Section 4?
There is no use in trying to bluff anyone that a local authority will have power, when this Bill becomes law, to accept tenders of any kind. They will not.
If the Deputy is so stupid that he does not want to get the proper interpretation of the Bill, I cannot help it.
The stupidity of the Minister or of myself does not arise on this Bill. Last Thursday the Minister mads the lamest explanation it was possible to make about the provisions of this section and what it applied to. "Deficiency in funds." How does deficiency in funds arise? Deficiency in funds may arise under any particular heading of a local authority. Money may run out or what was provided may already have been allocated to a particular service. The county manager, the secretary of the council, the county engineer, the chief medical officer, and so forth, could get up and tell the council that such and such would create a deficiency in funds. Personally, I do not see any advantage, so far as the law stands at the moment, in Section 4. The Minister put it in the Bill and he is claiming for it that, under Section 4, the council are getting certain powers.
Deputy Brennan described it as the principal section of the whole Bill.
However Deputy Brennan, or the Minister, or myself, or any other Deputy may interpret something here that does not make it law. Judges and justices and auditors interpret the law. The Minister and every member of a local authority knows well that the auditors are past masters at interpreting every line of the law. When they want to catch out members of a council or a manager or any official they can do so, without a doubt. The auditors the Minister sends down to the local authority are the best versed set of officials in this country in every line of the law.
In my view Section 16 of this Bill is a most reactionary section and I should be surprised if the House would accept such a section. The Minister said at the beginning that he would leave the question of whether or not the section should stand to a free vote. I have no doubt but that he will do so. Section 16 begins:—
"Where a proposal is made at a meeting of a local authority to do or to effect any act, matter or thing——
(a) which constitutes a reserved function or is mentioned in a resolution under Section 4 of this Act, and"
(b) in consequence of which an illegal payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in or to such funds,"
They have, maybe, these reserved functions "in consequence of which an illegal payment is to be made." It is a reserved function. The council have a right, in law, to make that a reserved function. I am sure all the reserved functions are legal and, as they are legal functions, the council have a right to perform them; we assume that. "... Where a proposal, which con stitutes a reserved function, is made in consequence of which a deficiency or loss is likely to result in or to such funds..."
The members of local authorities are adults. The number of illegalities they have committed in the past 25 years is, I am sure the records of the Department of Local Government will show the Minister, taking them by and large, one and all, very low. They have consistently worked within the law, whatever the law may have been. They have committed very few illegalities in their time. If a local authority have any functions whatsoever, and the reserved functions set out in the Management Act that the local authorities have a right to perform—if they have a right to perform, in law they do not become illegal because a local authority set out to perform them. I do not mean to be disrespectful when I say that if any tinpot officer of a local authority objects to performing any of these functions—if the county engineer, the medical officer, the accountant, the manager or secretary, and so forth, stands up and says: "It will create a deficiency in funds. You cannot perform that function"—I think no self-respecting member of the local authority would ever seek reelection. Members of local authorities have proved to be just as responsible as members of Dáil Éireann, in performing their functions.
Deputy Smith did not think much of abolishing a few in his time.
They were abolished before his time. In the case of the City of Dublin, the local body was abolished before we came in here.
It has often been a source of wonder to me down through the years why all the legislation governing local authorities was necessary. In my time, more of the time of the House has been spent in passing legislation——
In talking a lot of nonsense.
——in connection with local government than any other Department of State. I believe we have grown up sufficiently now that it could all be abolished and a set of standing orders devised under which local authorities could act.
I do not think this arises on Section 16.
I do not think so, but we find here a Minister who claims to be a super democrat, who is giving to the local authorities more powers than they had for the past dozen years— he proposes to give them more powers under Section 4—and who then says in Section 16: "Gentlemen, be careful. If you do anything under Section 4 that any officer does not like you to do, you may be surcharged and may have to pay." There is no power in law, I want to contend, for a local authority to make any payment under the County Management Act. Section 21 of the County Management Act, 1940 sets out:—
The county manager for a county may, by order signed by him and countersigned by the nominated officer or, where there is more than one such officer, the appropriate nominated officer for such county, authorises the making of any payment out of the funds of the council of such county in respect of any expense or on account of any liability incurred by such council or by such county manager for such council in the exercise or performance by such council or such county manager (as the case may be) of any of the powers, functions or duties of such council which are exercisable or performable by them or him (as the case may be) under this Act.
That is a good section.
No officer of any council, where there is a county manager, can make any payment. No council can force a manager to make any payment which he considers illegal. They have nothing whatever to do with any payment. They cannot accept a tender and cannot compel a manager to take any tender. They may consider tenders and give their views to the manager on them and may do as the standing orders set out. Under the 1948 Act, they were entitled to do the same thing, to consider tenders, but we know the standard rules which came down from Local Government which enabled these councils to receive tenders, to look at them and to hand them over to the county manager.
Do you know anything about Section 29 of the Act yon brought in yourself?
Tell us about it.
I will look at Section 29 of that Act now.
You should.
It is the same almost as Section 4. There may be——
Do not say "there may be." Is there or is there not?
Section 29 of that Act, the reactionary Act which gave no powers to local authorities at all and under which the Labour Party believed —I suppose, honestly, as they did not know better—no powers were given at all, that very reactionary Act which took all the powers from local authorities, states:—
Any council of a county or any elective body, at a meeting especially summoned for the purpose under this Section, may by resolution proposed and passed in accordance with this section, require any particular act, matter or thing specifically mentioned in such resolution and which such council or the county manager for such county or such elective body or the manager for such elective body (as the case may be) can lawfully do, to be done in exercise or performance of the executive functions of such council or body.
The very same power is in Section 4 of this Bill. There was a more involved procedure in regard to the number of members of the council necessary to pass it, the number of days' notice to be given and so on, but the very same powers are in Section 4 of this Bill. There was, however, no Section 16 in the 1940 Act and the manager at the moment carries all the responsibility in the matter, if he makes a wrong payment. An effort is being made in this Bill to unload that responsibility on to the local authority. That is the difference between the 1940 Act and this Bill which is supposed to be far more democratic and enlightened than the 1940 Act for which Fianna Fáil were responsible.
On a point of information, the Parliamentary Secretary has referred us to Section 29 as a safeguard. Is that not being repealed in this Bill?
It is a requisition section.
Is it not being repealed in this Bill?
It is being replaced by better sections.
So you want us to hold on to a lifebuoy which you have thrown away.
I thought Deputy Allen was forgetting about Section 29.
Deputy Davin is the best man in this House to get you out of a difficulty——
When you are filibustering.
——because he is an old soldier at this type of thing. I believe this is a reactionary section and I am surprised the Minister brought it in. I suggest that he should withdraw it and redraft it for a later stage. I definitely believe that this side of the House would not accept it, having operated local authorities for the past 12 years under the County Management Act.
Do you know that Deputy Smith incorporated the same section in his Bill and you did not vote against it?
That does not say that it is right.
Deputy Smith did not deal with us when he brought in the Bill.
He always dealt with you in the right way. You were always the yes or no man behind him.
He had to run the gauntlet here, and, if we had found anything like this in the Bill, we would not have been slow to draw it to his notice.
You must have been asleep in this particular case.
There was no free vote.
It never came to Committee Stage.
Whatever legislation was brought in by a Minister in the past does not concern the House to-day. This is a date late in April, 1955, and we are making, or trying to make, laws for the future.
And you are very slow about it.
There was nothing in the 1940 County Management Act putting the onus on local authorities or allowing auditors to surcharge members of local authorities. There was nothing so reactionary in it, but there is a proposal in this Bill by the Minister to saddle the responsibility on local authorities and to make them liable to surcharge. I think that is a reactionary suggestion and one which the Minister should reconsider. I ask him at this stage if he is prepared to withdraw the section and redraft it for Report Stage.
Will the Minister agree to do that?
No.
The Minister has put up one argument on this by which he hopes to carry it out, namely, that county councils might compel a manager to accept a tender which might cause a loss in the funds. I would put something else to the Minister in relation to this section. The Minister's contention is that, if this section is passed, the members themselves can be surcharged. We spent a long time here a few weeks ago thrashing out the appointment of rate collectors. We have a scheme in Cork under which we pass on vacant rate collectors' areas to the office for collection and we save about 3d. in the £ thereby, but if we should decide at any time, still exercising our rights and functions, after this section is passed, to take one of these areas out of the office again and appoint a rate collector for it, the Minister can come down on us under the section, if his contention is correct.
That is what you voted for.
We will see how you vote for this. If it would cost about 3d. in the £ to collect the rates by rate collectors, we might decide for one reason or another that we would do it by this method. We would be within our rights in doing it. Under the section the manager can say: "Well, that is going to create a deficiency in the funds. It is going to cost more to collect the rates than it does at present. It would not be the lowest tender for collecting the rates, and, therefore, I am getting a list of those who vote for or against the motion, for the purpose of surcharge". But if there is any substance in the Minister's argument in regard to tenders, it is equally good in regard to this. Therefore, I see no justification for this section. I think it is taking away whatever power we are supposed to have under Section 4.
I must confess that when we were discussing this previously I had a certain amount of suspicion about the section, but having listened to Deputy Corry, I am not too sure that the section is not perfectly right. Deputy Corry suggested a hypothetical case which might happen in Cork, and he said that under this section the members of the Cork County Council might be surcharged. On the hypothetical case he suggested, I think they should, if, regardless of the fact that rates in Cork could be collected more cheaply through the office of the county council, some members decide to appoint rate collectors. They must be doing it for some reason other than economy, and I think it is perfectly right they should be surcharged.
I am very pleased to hear the views expressed by Deputy Sheldon because I hold exactly the same views. I would be more than amazed if, after the result of the local elections, when Deputy Corry found his Party in a majority, he would come in here and say: "No, we will have rate collectors this time. It would only be right".
I should like to refer to the question of illegal payments. I have noticed, and other members of a local body have noticed, that when an engineer recommended a certain sum to be paid for a house offered to the council, members proposed, in spite of his recommendation, that more should be given to the owner of that house. We know that there have been occasions when, unfortunately, the manager, in accepting the recommendations of the members, bought a white elephant. Deputy Corry knows that. If there is a provision in this section to prevent such a thing happening, then I say it is correct.
Deputy Allen spent a lot of time in pointing out various things which could arise. I believe that it would be only rarely where such a situation as I have referred to would arise. Deputy Corry knows, and other members of a county council know, that recently there was a question of a surcharge recommended by an auditor. I presume, notwithstanding the inclusion of this section, that members, if they were so named as having voted on a particular issue, would equally have the right of appealing against the recommendation of the local government auditor, either to the Minister or to the courts, if necessary. Surely, as members of local authorities, if we are prepared to take a certain stand, if we recommend a certain payment, we should be prepared to face up to it. Surely no one here, who is a member of a local authority, is going to suggest that members would make recommendations for payment if it were not just. That is my opinion of the section.
Then why have the section?
I am giving examples from everyday life. Take the example of where under present circumstances a local authority has been saddled with paying more money for houses than they were worth. The engineer pointed it out but, unfortunately, because the manager accepted the views of the members, the result was that the purchase turned out to be a white elephant.
Did the manager sign that order?
The Deputy should realise that I am dealing with this Bill from the point of view of a member of a local authority. I am not interested in what was in the 1940 Bill.
You are not concerned with the truth, apparently.
I am concerned with what is going to happen local authorities; otherwise I am not interested. I am not concerned with Donegal, but I want to make sure that everything will be above board in Cork. Whether it is a matter of purchasing houses by a local authority, or any other thing, the question of illegal payments might arise only once in 20 or 30 years. If it should happen, say, once in 20 years, is it not right that we should have that safeguard? After all, we want as large a power as possible in local authorities, and with that power must go responsibility. It ill becomes any of us in this House to say that the powers must be ours, but not the responsibilities. If we want to adopt that attitude, then I believe we are drifting a little away from the true sense of democracy in local government. Even if a situation of which I have spoken arose only in 20, 30 or 40 years, it is only fair and just that the responsibility is placed on the members to see that what is right and what is just will be done, and nothing else.
When we were dealing with the section on the last occasion, a point which I felt should be made, and which I thought was not made too clearly, was that no matter what act was performed by the elected representatives of the council, as I understand it at the moment, such an act must be countersigned by the manager. In the last analysis, the manager must give his signature to the performance of any particular act, no matter what is involved—expenditure, or the administration of the local authority. If that is true—and I believe it to be true—why the necessity for this section at all? Despite all the talk just now as to why we should have it, candidly, I did not hear anything that made me believe we should have it any more than I heard the other night. Since the manager is there, he must countersign every item or an officer appointed by him must do so before it is really performed. Where is the necessity for this section at all?
Why not let such a matter as is referred to under Section 16 come to the manager who in the exercise of his own powers and functions would be in a position to say he could not go ahead with this function because it was illegal? The council can compel the manager to do a lawful act but I fail to see where they are empowered to compel the manager to do an unlawful act. In that event the next thing is that we would have the council saying this must be done and the manager saying he would not do it. The logical thing is to send the matter to the Department of Local Government for a decision as to whether or not it should be done. I fail to see what danger there is in wiping out Section 16 altogether.
We have the manager between the council and before the council at all times. No matter what they decide to do the manager must give it his O.K. before it is done. Is not that the proper safeguard? If the manager is, in fact, the manager of the council or of the local authority he should have the last say in the matter. At the moment he has that. Having the last say, he ought to exercise it and let the matter go to the Minister for his decision in the last analysis. I cannot understand people, particularly people from the Labour and other benches, talking about Section 16 and the necessity for it.
The managers have too much say.
We are getting no say under Section 16 except whatever is taken away from us.
Will the Deputy vote to scrap it altogether?
I see a much more serious aspect in regard to Section 16. A proposal—it may be a very necessary one—may be made by a member or members of a local authority. It may be an issue on which the council are equally divided. At some crucial stage during the discussion on this proposal an officer of the local authority, the manager or his designated officer for the purpose of that meeting may object and say: "Look, if you vote for this proposal it will be an illegal spending of the council's moneys and you will be likely to be surcharged". If that should happen I feel that in any local authority you will not get the majority of the members, even though they might think otherwise, to vote for that proposal in view of that objection.
As I see the matter now, the manager is being given directly or indirectly a veto on every matter that could possibly be put before the council by any member of the council, thereby taking away from the local authority any power they ever had. We will not be able to do anything in the future by reason of the fact that we may have a manager saying it is illegal. A simple remedy is to let the proposal go through and if the manager refuses to sign the order giving effect to the proposal the council should direct that it be sent to the Minister who ought to decide as to whether or not it is illegal. Having got that decision——
Surely you have a law adviser of your own?
We have quite a few, as possibly the Minister knows, but that is not the point. It is not always easy for a local authority to get legal advice in the midst of a discussion on a particular item which might be of importance. We do not have a legal adviser sitting with us in the council. The cost is enough already to have one sitting outside the council. That is not the point. Why should we make provision for giving them more money and prevent us spending money on something we ought to do in the county? Surely it would be better to spend money in the county than give it to legal advisers? You have competent people in the Department of Local Government to advise the Minister. I am not too sure that the Minister or the Bill gives us anything.
The Deputy got what he asked for.
That is not the point. It is a question of finding out why all that the Minister promised is not being given.
The Deputy is getting everything he asked for.
That is not the question. We are trying to find out why we are not getting all that the Minister promised.
What does the Deputy want that he did not get?
What do your own people want?
Let them speak for themselves.
What did the Deputy vote for at the county council when the Minister went down?
Ask the Minister about that. There is a long story to it. Section 16, as I see it, takes from us any benefits, if there are any benefits in the Bill, that were conferred on us. Any extra authority that may have been given to us under this Bill is completely nullified by Section 16. Section 16, I contend, is absolutely unnecessary because of the circumstances I have quoted. I would ask the Minister again seriously to consider this matter because I do not think that Section 16 is really worth rowing about from his point of view because it is unnecessary.
It is a Donegal affair.
I am afraid that I cannot follow Deputy Blaney's argument. He says that the council has no power to do anything unless the manager okays it. That is not my reading of Section 4. I do not see anything about the manager having to agree. There was talk about bringing in legal advisers. On the question of illegality, surely it is provided in the Bill that disputes would go to the Minister? Apart from that, surely the question of whether or not an act which a local authority wants to do is or is not illegal is not as abstruse as Deputy Blaney is trying to make out?
May I point this out?
Deputy Sheldon is in possession.
On a point of explanation. Does Section 16, sub-section (1) (a) not refer to any act that may have been performed under Section 4 and, if so, does not it nullify and cannot it nullify any act performed under Section 4?
That may be so.
It is so.
You have now got Hallsbury speaking.
Hallsbury is not going to change to-night.
Deputy Briscoe is looking at the bare words. Never mind the bare words for the moment. Can anyone who is on a local authority visualise the position that a manager wantonly—because that is the suggestion—obstructs a council by telling them that what they are proposing to do will be illegal and that they may be surcharged? Wantonly is the point because, if it is right, he is right to do so. It is only if it is wrong that there is going to be any trouble.
That he is wrong to do so.
Exactly. I ask any member to visualise the position where a county manager or a city manager sets out to obstruct his local authority by wantonly telling them an untruth. What is going to happen him?
The Department may be prejudiced in that direction.
Never mind about the Department. What is going to happen him? What is the next move for the local authority?—to move for his suspension. What county manager or city manager will behave in that way? I admit there is a good debating point in Section 16, but in plain fact what will happen in ordinary life? There is not tuppence worth in it. Deputy Blaney knows it and so does Deputy Briscoe. It is a good debating point but everyone knows perfectly well that county managers and city managers are not going to be so foolish as wantonly to tell the council that something will be illegal which can be demonstrated not to be illegal. They never will keep their jobs on that basis and that is the best safeguard.
I do not wish to prolong the debate. I think it can all be boiled down to one particular point in relation to what Deputy Sheldon has mentioned, and I hoped that he would say it. Should a manager, whether he is a city manager or the county manager, say it is illegal under this particular Section, 16, surely the very fact that Section 4 states that members have the right to requisition that a particular thing be done, taking for instance, the local authority to which I belong, means that the first thing Deputy Corry and the other members of the local authority would do would be to use our right under Section 4 to ask him to prove it. We are entitled to do that under Section 4. We are entitled to ask him to do a particular thing. Deputy Briscoe and Deputy Blaney may wish to make a laugh of it. I am giving credit to Deputy Corry, knowing him as I do on the local authority. If we were convinced that a certain line proposed by us was legal and if the manager should say to us that it was illegal, then Section 4 would give us the right to demand of him to show that it was illegal. The onus must be put on the manager to prove that he is right in directing us that the act was illegal. If it is illegal we have no right to do it, and should not do it. If it is not illegal we have the right to do it. Why worry and talk as some Deputies are talking here to-night?
From the debate on the Committee Stage of this Bill one would imagine that county managers are all saints and elected representatives of the people are all sinners.
All knaves.
I cannot understand that people who for so many years have been condemning the powers given to the managers under the County Management Act should be so loud in upholding that Act here to-day in supporting a clause which, as Deputy Blaney has said, nullifies anything that is being given in the Bill to elected representatives. The phrase "if they do something that is illegal" has been used. It is not merely that. If my interpretation of Section 16 is correct, if the elected representatives do anything which will cause a deficiency in funds, the manager may, by simply objecting to their doing it, have them surcharged afterwards. I would like to be contradicted if that is wrong.
I can visualise a position where members of a local authority, seeing that a certain road needed attention, requested the county manager to have £1,000 spent on that road to put it into repair. The county manager or the county engineer or any official designated can point out that that will cause a deficiency in funds and the members who supported the motion may be surcharged. If I am wrong, I would like the Parliamentary Secretary to contradict me. In other words, it is giving the elected representatives something with one hand and taking it from them with the other.
Section 16 completely nullifies anything given under Section 4. Not merely does it do that but it gives to the county manager the big stick to hold over the elected representatives and the power to say: "If you dare command me to do anything, I have a means by which you will pay dearly for doing it." It is entirely contrary to what the people on the other side of the House have preached since the County Management Act came into force. It is showing no confidence whatever in the elected representatives and absolute confidence in the manager. That is my interpretation of Section 16 which is held to be as necessary as Deputy Desmond has pointed out. It does not entrust the doing of anything under this Bill to the men who will be elected by the people without having a section to save them from themselves.
The people who have been calling out for years for more power for the elected representatives now tell us that they must be saved, they must be brought under the manager's big stick in case they would spend money that he could not veto or have the last word in agreeing to it.
The Minister may tell us that he is giving us what we asked for. For that matter, we did not ask for anything. We were administering the County Management Act for all it was worth.
And satisfied with it?
Quite satisfied.
The people on the other side of the House were the people who were condemning it.
What about your Government when you were in office?
In deference to the request of the Opposition.
Do not be contradicting yourselves.
They were worried about us.
We are not discussing the County Management Act. We are discussing Section 16.
I have fought several local elections and I have never listened to a representative of the other side of this House who did not start off his election speech by saying: "Unfortunately we have not the powers to represent you as we would like to. Those powers were taken from us by a Fianna Fáil Government under what they call the Managerial Act."
In 1942.
Now they are loud in the House in condemning anything that would give back the slightest power to those representatives. A Deputy like Deputy Sheldon, who represents a minority, who should be calling out for every little bit of extra authority, is now concurring with the Minister. I am shocked and surprised that he is concurring with the Minister in bringing in a section which deprives him of any authority whatever under the Bill.
I am one of the few people who believe in the County Management Act.
If any Deputy on the other side of the House can prove that Section 16 does not nullify the powers which elected representatives may have under Section 4 I will be prepared to support it but I fail to see in any way whatever the necessity for Section 16 if the Minister has a shred of confidence in the elected representatives of the people.
I think that some of the Deputies who have spoken on this section have not read it and have tried to take part in the debate on it purely on debating points. I say emphatically, that this is the most vital section of the whole Bill. A great deal of it is eyewash. A great deal of it is window-dressing, but you have in Section 16 here a control superimposed by the authority of the Custom House, on the manager and the local authority. Now, you have the control of the manager over the elected representatives. Deputy Desmond says that Section 4 is the safeguard we are concerned about and that if the manager wishes to do something under Section 16 to which the local representatives object, Section 4 safeguards them. The position, Sir, is quite the reverse, and I would ask Deputy Desmond to read it again. Section 16 takes away from the local representatives all that is purported to be given them under Section 4. I say that with all the emphasis I can possibly give it.
Section 4 is a pious expression once you associate it with Section 16. Does Deputy Desmond or does Deputy Sheldon, who has entered into this debate with a certain sense of humour, not realise the seriousness of it? Section 16 starts off in sub-section (1) as follows:—
Where a proposal is made at a meeting of a local authority to do or effect any act, matter or thing:—
(a) which constitutes a reserved function or is mentioned in a resolution under Section 4 of this Act, and
(b) in consequence of which an illegal payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in or to such funds,
the manager (or, in his absence, such other officer as may be designated by the manager) shall object and state the grounds of his objection,
Now, under Section 4, it is quite lawful and legal for the representatives to decide to do something or anything. If it is, as Deputy Brennan says, their opinion that a certain road is in an unfit condition and should be repaired at a cost of say £1,000 and if they are prepared to strike the particular portion of the rate involved to do that job, that particular lawful decision becomes unlawful and illegal if and when, under Section 16, the engineer or manager says it is not necessary and holds it is not necessary.
Deputy Sheldon waves his head and says "no". We had both Deputy Sheldon and Deputy Desmond grasping on to the illustration given by Deputy Corry as one of the effective reasons which they are taking to vote for the section. I agree Deputy Corry was not so far wrong. Supposing a local authority decides that they are going to employ a certain number of additional members of the staff for a particular purpose, whether it is new or whether it is a continuation of some other operation, and the manager does not want to do it, it immediately becomes an illegal decision.
No.
Then Deputy Sheldon can get up and tell us.
That is not what "deficiency" means. The Deputy should have listened to the Minister. It is explained in the older Act.
What makes anything illegal? Perhaps Deputy Sheldon would listen to this. Under Section 4, if Deputy Sheldon and I should by any far distant chance be members of the same authority and agree to have something done——
I hope Dublin does not grow that big too quickly.
Perhaps not, but perhaps Deputy Sheldon might come to us and give us the benefit of his vast experience. Under Section 4, if the local elected representatives decided to do something which involved expenditure or an increased expenditure, what happens? The manager, or, in his absence, such other officer as may be designated by the manager, shall object and state the grounds of his objection, and if a decision is taken on his proposal, and so on. This does not limit the manager to making objections to anything. This is an over-all control. I say again that you have at the present moment a control over a local authority. Now you are going further to extend a control so that you will have more firm control by the manager over the council and the councillors. What is meant by "if the manager objects"? Objects to what? He can object to anything.
We can sack him if he objects.
As Deputy Brennan rightly says, if the local representatives want to white-wash or paint or improve a road, whatever the cost may be, and the manager objects on the grounds that he does not think it is necessary, and if the local representatives, in spite of the objection of the manager, persist in pursuing their decision, they become liable to surcharge. Does Deputy Sheldon say that is not so?
Of course it is not so. No court in Ireland would be such a fool as to give such a decision.
So Deputy Sheldon is going to accept that position because if and when it is attempted to make the surcharge effective the local representatives may resort to the court of law to cover themselves against this unreasonable attitude of the manager.
Of course they would. I think the Deputy has a very poor view of managers.
That seems to be an admission that what I am saying is correct.
Is not that what the courts are there for?
It is not what the councils are there for.
Would any manager be such a fool as to put himself into such a position?
Deputy Sheldon should cease interrupting.
I say that Section 16 is the beginning and the end of this Bill. If this section goes through you have completely finished with any suggestion of democratic control on the part of local representatives because— and I repeat this—everything that you are supposed to get under Section 4 is repealed if the manager so acts under Section 16. During the discussion, and particularly as regards one of the statements made by the Minister, I became confused. The Minister talked about the position where a lawful decision under Section 4 becomes illegal in certain circumstances under Section 16 and he then talked about the surcharge. Listen to the sense of the language, Sir: "A surcharge for an illegal payment for an unlawful act." We are now legislating to the extent that what appears to be lawful under Section 4 becomes definitely unlawful when Section 16 comes into play. You have provided the money under Section 4 for the then lawful act and this becomes an illegal payment for an unlawful act under Section 16 if the manager objects.
Hear, hear!
I do not know whether the Minister will agree that that surcharge could become enforceable in law because I have yet to hear that you can recover in law anything spent for an unlawful purpose. I think that is one of the codes we have in our law.
I was surcharged.
Now, Deputy Desmond talked about white elephants in connection with properties bought at excessive prices. He said that the only safeguard against such transactions is the county manager. First of all, before any such purchase can be made, payment has to be made by the county manager and, unless the payment for such a purchase is out of the rates, the purchase is subject to sanction by the Department of Local Government. Therefore, the white elephant purchases to which Deputy Desmond has alluded would suggest to me that, instead of Section 16 as it stands, we should put in a new Section 16 which would stipulate that the local authority should do its business itself because, apparently, the safeguard of sanction from Local Government has not prevented the purchase of white elephants.
When the money comes out of the rates, as it did in these cases.
Then the manager was a party to it. There are very few purchases of property out of the rates and any purchase made in the manner suggested by Deputy Desmond would leave the councillors open to the severest reprimand and criticism from the ratepayers.
So they are often.
Now, we have had all kinds of expressions of opinion on this section, and I hope the Minister will admit the seriousness of the section and what it really means. The Minister says that it is what we say here that counts in the interpretation of an Act of Parliament. It does not. Deputy Allen quite rightly says it is not what we say here that counts; it is the interpretation by the courts of the cold language in the Act of Parliament that decides matters. We have had cases in the past where the Official Report was produced in court indicating the Minister's intention and judges have invariably pointed out that they are not there to adjudicate on intentions; they are there to interpret what is in the Act. I agree with Deputy Allen that it is what is in the Act that decides ultimately. The auditor does the same. The auditor will interpret the Act and not the intention.
The Minister must not assume for one moment that the people who participate actively in local government are all fools. I ask the Minister to realise that this is a complete reversal of his own expressed opinions in connection with local government. It is in complete opposition to what the Parliamentary Secretary, Deputy Davin, has said over a number of years.
According to the Deputy's elastic imagination, yes.
There is a lot of rubber on the Government Benches, too.
And rubbernecks over there.
The only interpretation of "rubberneck" that I know is to describe the fellow who is always on the look-out and poking under seats to see if anything has been dropped or anything left lying about to read. I believe the phrase was first coined in the United States. Apparently the Minister has a different interpretation for rubberneck. If he said we were a bit stiffnecked——
Or hard-necked.
——over here, I might agree with him. Labour have always stated that they stand for the fullest control of local government by the elected representatives of the people. I hold that Section 16, as it stands, completely nullifies the control that we all believed was intended—the control we want over our own local affairs. One would assume from this section that all, or nearly all, the mistakes made in local government administration are made by the local elected representatives. In recent months I have discovered that more mistakes are made by managers and by the Local Government Department——
And by investigators, too.
The Parliamentary Secretary will in due course have a good opportunity of examining the matter to which he is now referring in the greatest detail and I think he will be one of the first to admit that what I am now saying is correct. It is not solely the elected representatives who make mistakes and on whom the brake must be applied. I have learned in the last few months that mistakes are made by managers, and the mistakes made by managers have been confirmed by the Department of Local Government.
In my opinion, the greater the freedom and the greater the right of elected representatives, subject, of course, as I have always said, to an administrative head and subject to an overall examination and control by the Department of Local Government, if you like, the better local government we will have. Section 16, as it stands, will create a disastrous situation and I appeal to Deputy D. Larkin, who is a very active member of our local authority in the City of Dublin—I am sorry Deputy A. Byrne has left the House; I would venture to say that he agrees with the point of view expressed on this side of the House and has gone outside to examine his conscience——
The Deputy should try to get some agreement on his own side for what he is saying.
Leave them alone. They have been two and a quarter hours on this section now and they have not even put down one amendment to it.
It is not necessary to put down an amendment. We are opposing it without amendment.
After a great deal of study, I got my secretary to type a memorandum for me on this and, nearly all through, it starts with the words: "It will be necessary to have this section fully clarified." Until the Minister declared himself with regard to Section 16, nobody could really believe that it was intended to mean what he now says it means, and what we now know it means, and therefore one cannot amend or seek to minimise something that is bad. The only thing one can do is to destroy it and we are unanimous on this side of the House in our objection to this section. We will oppose it.
The Deputy agreed with it for ten or 20 years.
This section is only now being introduced.
The Deputy believed in county managers up to now.
Order!
The Minister may be impatient and may possibly be hurt when members on this side of the House vehemently oppose a certain line of action. I can sympathise with him in that. I may not agree with him, but I can sympathise with him. What I cannot understand is that the patience of the House should be tried by a constant——
Repetition.
——repetition of interjections by Deputies who refuse to say what they mean by those interjections.
We prefer to listen to the Dublin Deputies talking.
It would be a good thing if the Wexford Deputy got up on behalf of Labour and gave us his opinion of this section, thereby letting the people know how little he knows about it——
We will tell the Deputy all about it.
——when he makes these interjections. Some Deputies, in their lukewarm support of this section, have tried to make a case for it. Everyone who has tried has only succeeded in damning it further. Deputy Sheldon says that his lifeline is the courts of justice. Deputy Desmond's lifeline is that if it did happen 20 or 30 years ago that was a mistake made by a particular local authority and that that single mistake justifies Section 16 —did anybody hear the like of that before?
It could happen once in 20 years to come. I want to protect the public.
It is this puritanical outlook which sickens me. We in this House under all Governments from time to time passed a variety of measures and on a number of occasions the legislation passed here has been found to be faulty and Ministers have had to come in here to amend a mistake in what was drafted or as a result of finding out from practical experience or the implementation of a particular Bill or Act that a mistake had been made. Nobody suggests that because the House of Parliament under the direction of a particular Minister of State with his host of officials and draftsmen behind him—because under those circumstances faulty legislation or mistaken legislation was passed—this House should be abolished and a dictator put in. That is what you are doing under Section 16. You are dismissing the county manager and creating a dictator. That is what you are doing. Deputy Davin grunts and says nothing.
It is not a rubber neck you have but a brass one to say that.
I am saying what I know is going to happen. Deputy Davin occasionally participated in local government legislation debates but the Parliamentary Secretary always prefaced his interjections by saying: "I speak as a member of the House who has never had any experience whatever of being a member of a local authority." Therefore, I say the Parliamentary Secretary does not know what I have been talking about——
That is right, anyway.
——and does not know anything about this legislation.
You do not know it yourself.
I say that the Parliamentary Secretary——
On a point of order. Is there any penalty for repetition even by one Deputy apart from the fact that he is repeating what other fellows said?
I make a present of this to the Parliamentary Secretary— the Parliamentary Secretary has never served for one hour on a local authority——
That is repetition.
——and therefore the work of a local authority is quite alien to the Parliamentary Secretary. Consequently he does not know what I or anybody else is talking about when we are talking about local government management. I would challenge the Parliamentary Secretary who is Parliamentary Secretary to the present Minister for Local Government, to get up and give us his dissertation on Section 16. Let him tell us what it means.
You would not believe me of course.
I would believe the Deputy as I would believe a child who might not know what he was saying. I feel that there are a great number of members of this House who have served for a great number of years on local authorities and served many hours of every week trying to unravel their rights under local government legislation, trying to find out what they can do and what they cannot do, and finding themselves hamstrung. The Minister said before in justification of this Bill that this section was included in the Bill introduced by his predecessor in this House, but I do not know whether he has read the debates on the Second Reading of the Bill as it was then introduced. If he has, he would have found that our Minister for Local Government, the present Deputy Smith, was quite willing to listen to criticism, and at least he had personal practical experience and knowledge of the work not only as a member but as chairman of a local authority.
He should have changed the Management Act then, when he was Minister.
I am trying to refrain from making certain answers to certain interruptions, but it is very difficult sometimes to control oneself. The Minister for Local Government has, on many occasions during the passage of the Local Authorities Bill and on previous sections and on the Second Stage of this Bill, claimed to have expert knowledge of local government, having acted as legal adviser to a local authority for many years. The Minister has said that. Now I appeal to the Minister, and I think he will agree that whatever Party a member of a local authority belongs to, particularly in the case of the local authority to which I belong, the elected representatives have always tried to do their best in the interests of the people they represent, and they are not just lunatics, knaves or fools, and that the manager is not the little green-eyed god to whom local authority representatives must bow down. Surely the combined wisdom of the majority of a local authority in coming to a decision should be sufficient to offset the opinion of a single individual. Surely that particular idea will be subscribed to. Further, if the local authority unanimously decides something, is it not to be assumed that a body of sensible men—as they should be—in unanimously deciding something should be more than a match for the manager who has to have the safeguard of paragraph (b) of sub-section (1) of Section 16?
I would like to hear Deputy Larkin on this, not—if you like—from a Party point of view. I would like to hear from him on this from his own experience in the City of Dublin. Does he not agree that the reserved functions —and we have very few reserved functions—should be left in our control without having them reduced to a farce or to nothing, which is the position that Section 16 would bring about. I would ask the Minister, having heard the various opinions on this particular section and having heard, as I said before, the very lukewarm expressions in favour of it, to take courage and admit that Section 16 is not necessary and will be withdrawn.
I have listened with some care and attention to the speeches of Deputies Blaney, Brennan and Briscoe on this Section 16. I find great difficulty in accepting that they have a common or an agreed approach on this matter. Listening for some time to Deputy Briscoe, one gathers that it would be almost impossible for a local authority to make a decision that might result in an illegal act being performed. On the other hand, Deputy Blaney told us that there was ample provision against local authorities committing an illegal act which would result in a deficiency or loss to the funds of the local authority by the fact that, in his opinion, a decision could be made by the Department of Local Government. So here we have an immediate contradiction between——
On a point of explanation. Deputy Larkin, I am afraid, misunderstands what I really said and I think, possibly, that is what Deputy Larkin set out to do.
Deputy Larkin is in possession. The Deputy cannot give a resume of his speech at this stage.
I want to contradict a misstatement.
Deputy Larkin has been speaking for one minute and it is very difficult for the Deputy to stand up to contradict anything.
He is purporting to quote what I said.
I think the very few remarks I have made in the matter have proved very clearly that there is some confusion between the Deputies representing Fianna Fáil in this House. On the section itself, it appears to me on reading Section 16 (b), that the section is there for the purpose of giving to the manager power to advise very definitely the local authorities that a decision they may be about to come to may be an illegal decision and may result, if carried into effect either in an illegal payment being carried out or in a deficiency or loss in local funds arising from an illegal decision. I am not a lawyer, a solicitor, or anything of that kind but that to me appears to be the interpretation of the sub-section.
Deputy Blaney is not worrying evidently whether the local authority should be advised or not that any proposal they are considering is a legal or an illegal proposal, because he made it quite clear that, in his view, the procedure should be that the resolution be adopted by the council; subsequently the report would go from the manager to the Department of Local Government and the Department of Local Government could refuse to sanction the proposal because such proposal might be illegal.
Deputy Briscoe said, to my surprise —I think I am correct in quoting him —that he believed the manager should be an administrator under the control of the councillors. I am somewhat surprised to hear this statement from Deputy Briscoe because of the fact that when the Minister visited our local authority in connection with this Act the only member of the local authority who indicated that it was their due that the manager should be an executive officer only was myself. None of Deputy Briscoe's colleagues— I do not think he was there at the time—had any quarrel with the present system as such.
Did they object to what the Deputy said?
They made it quite clear that they were satisfied that the manager should carry out and should possess the general functions he held up to that time.
What does the Deputy want?
What you wanted a few minutes ago.
What was that?
That the manager should be under the control of the council.
I still want it. Section 16 prohibits it.
You should have told the Minister that when he visited the local council. You did not tell him, nor did any of your colleagues, when he visited the corporation.
There was a committee set up.
Deputy Briscoe has spoken at considerable length.
He is not finished yet.
I am only beginning.
Filibustering.
Let us hear what Deputy Larkin has to say.
In my view, it is proper that local authorities should be advised, whether by a manager or anybody else, if a course they propose pursuing may lead them into committing an illegal act. My interpretation of this section is that this section places upon the manager the clear duty of advising the local representatives if the course they are taking would entail an illegal payment. Consequently, I see no particular objection to the section. I would feel somewhat easier in my mind if the Minister would consider making the position plainer by adding two or three words to Section 16 (b).
What should the words be?
I am not suggesting any particular words. I think the Minister may feel at this stage that it would be advisable to make a clear position even clearer and so at least assist Deputies Briscoe, Blaney and Brennan to avoid any further confusion among themselves in this matter. I cannot see the difficulties visualised by Deputy Briscoe. I cannot accept that the adoption of this section would, in effect, mean taking all authority away from the local representatives because the section, as I read it, clearly and only refers to the question of an illegal payment.
What is an illegal payient under that section?
Deputy Briscoe suggests, possibly, that there is no such thing as an illegal payment.
How does a payment become illegal under that section?
I leave it to the Deputy to demonstrate.
I have told you how.
Order!
The section refers to the general actions of the local authority. Deputy Briscoe suggests there could be no action taken by a local authority that was illegal. Deputy Blaney suggests that there is protection, by every action about which there was any doubt whatsoever being referred to the Department of Local Government and that Department would decide on the legality or otherwise of any particular action. I suggest that before the Deputies opposite conclude their observations they might spend about five minutes in the lobby and arrive at some common understanding as to what they wish the Minister to do.
That is very simple.
We would have been glad if the Minister had given us some more justification for the inclusion of this section. The County Management Act has been in operation now for 12 years and the Minister did not give one single instance that came to his notice or the notice of the Department in that period of 12 years which would justify taking from the shoulders of county managers what they have carried for 12 years and putting it on the shoulders of members of local authorities. The Minister was not able to give us a number of instances, nor was he able to give examples of important and serious matters where wrong decisions were made by local authorities that forced the manager into doing illegal things. He did not make a case for taking the burden off the shoulders of the managers, as he is doing in this section, and putting it on individual members of local authorities. That is in effect what he is doing.
If you take Section 16 out of this Bill it is a Bill of tatters—a tattered old coat and breeches, that is what it amounts to, the old coat is before Section 16 and the breeches after it, and they are tattered. Section 16 is definitely anti-local authority and antimembers of local authority. I say that in all seriousness. It is antimembers of local authority and anti-local authority. For 12 important years in the life of this nation the local authorities have operated a new Act, a new service, the County Management Act. In not one single instance has the Minister quoted any irregularity that took place.
We know for a fact, as I said on Thursday evening, that managers have been fighting for the last 12 years to get that onus taken off their shoulders and put on the shoulders of the local authority. The managers' association desired that, we know that quite well. The Labour Party should understand this better and should know quite well what they are voting for in this Bill. They should know that for the first time, in 12 years under the Management Act, the Minister proposes to put on the shoulders of individual members of local authorities an onus and responsibility, as far as surcharge is concerned, that they had not on them before. The Minister had the cheek to get up here to-night, and state that under Section 4 when it becomes law the local authority has power to accept tenders.
I said no such thing.
It is on the records of this House and I challenged it and you did not deny it.
On a point of order and a point of law——
I am not giving way.
The Minister is raising a point of order.
I have been misquoted. What I said was this. Under the law as it exists to-day and under this particular Bill when it becomes an Act, the local authority may requisition the manager to accept a particular tender. They will never accept the tender themselves but they may requisition and compel him to accept it.
That is right, I am glad to hear that. Section 17 of the Management Act—it is not being altered in this Bill—goes on to define executive functions. Section 17 says very clearly that the manager shall perform all executive functions of the council—all executive functions—and the acceptance of a tender is an executive function.
I am not disputing that.
No resolution of the council can compel a manager in the exercise of his executive function to accept any tender which he does not wish to accept.
Read the Bill.
Is the Minister agreed on that?
I am not.
In other words, that the council have power to compel the manager to accept a tender? Is that the Minister's interpretation?
I did not catch the Deputy's point.
In other words, that the council of a county or an elected body have power to compel a manager, by vote at that council, to accept any particular tender that they think well of?
That is quite right.
They did so recently in one case.
In other words, that they have power to exercise the executive functions of a manager by resolution?
No, but they will direct him to exercise an executive function, by their vote.
Pádraig Mac Gabhann
Níl mórán difríocht.
Tá difir mór ann.
Section 17 of the County Management Act of 1940 sets out as regards executive functions:
"All such matters and things, including the making of contracts and the affixing of the official seal, as are necessary for or incidental to the exercise or performance of the executive functions of the council of a county or of an elective body..."
The manager makes all contracts.
He does.
I want to insist that even under this Bill no elected body or council of a county has power to make contracts.
Quite right.
It is only the manager of the county who has power to make contracts.
Quite right.
The Minister earlier to-night argued here that one of the reasons for Section 16 was that the council or elected body had power under Section 4 of this Bill to compel the manager to accept a tender other than the lowest tender.
That is quite right.
We have had this point about six times in this section.
He said it about a dozen times when you were not in the Chair.
I do not need any reinforcement from any quarter. I am dealing with what I have heard myself. I cannot allow this repetition.
I made a new point.
I did not notice any new point. The fact is that the Deputy has made that point, to my knowledge, about half a dozen times.
Section 16 sets out the reserved functions. It says the council of a county shall perform such functions as are in the Second Schedule of the Act. It says they are reserved functions and that they may perform the reserved functions. I want to refer to a further section in this Bill— Section 19. If it ever becomes law, Section 19 provides——
The Deputy may not proceed to read the sections. We are dealing with Section 16.
I am dealing with executive functions and reserved functions.
This Section 16 has reference to quite a definite and specific matter, that is, obligations in case of proposal involving illegal payment, deficiency or loss.
I am trying to point out——
The Deputy must confine himself definitely to that section.
I will. I will make reference to the section. I am trying to point out that the council of a county have certain reserved functions which they have a right to perform and the manager has certain executive functions which he must perform. In this section, the council can illegally perform one of their functions by compelling the manager to make illegal payment—by compelling him to take what may be an illegal tender.
The Deputy has said that about ten times already.
I realise that I am getting under the Minister's skin but I should be glad if he would not interrupt me. This section is reactionary and it should not be in any Bill setting out democratic powers. For the past 12 years the position in local authorities has been that the manager has carried the responsibility for surcharge on his shoulders. We object most strenuously to the Minister's proposal that that responsibility for surcharge be removed from the shoulders of the manager and transferred to the shoulders of members of the local authority.
Earlier in this debate Deputy Briscoe challenged the right of Deputies who are not members of a local authority to speak on this Bill. I am not a member of a local authority but, as a Deputy, I claim the right to speak on this Bill. If one were to follow his line of reasoning no Deputy who is not a showman would have the right to discuss the Gaming Bill. I should like to have clarified whether or not the Opposition want the position to be that if a county council decide to do something against the advice of the county manager—to do something which the county manager knows is an illegal act—and, as a result, there is a loss or the money is spent illegally, the responsibility for that act should not rest on the shoulders of the people who decide to do it?
He makes the payment. He cannot do it illegally.
Perhaps people with a lot more experience than I have may see something in that: I do not. I should be very glad if the Opposition would give me the benefit of their long years of experience and state whether or not that is correct. I have heard talk during this debate as to whether or not authority should be given back to local authorities. I believe it should. However, with Deputy Desmond, I agree that if authority is given, responsibility also must be given.
Before ever the managerial system was introduced, I think it was the practice to have an adviser at all meetings of local authorities—the law adviser or the secretary—who, when matters were being discussed by the elected body, chimed in from time to time and suggested that a decision about to be arrived at was dangerous and looked like being illegal. I agree entirely with Deputy Larkin as to the desirability of making provision for such technical advice. I agree that a local authority should have some technical people at hand who would warn them, in the course of their discussions, that if they decided in a certain way it might prove to be illegal.
I have not heard the Minister on this section but I understand that he spoke on it. While I admit that there should be some provision for preventing illegal action I am anxious to know what this word "deficiency" means. Like every other Deputy I know what "deficiency" means in its ordinary sense but what does it mean in this section? Sub-section (3) of Section 16 reads:—
"Where, in accordance with sub-section (1) of this section, the names of the persons voting for a decision to do or effect any act, matter or thing are recorded in the minutes of the meeting of a local authority, those persons shall be surcharged on any surcharge or charged on any charge that may subsequently be made as a result of the decision as if they had made or authorised the making of the payment or caused the loss or deficiency, and no other person shall be surcharged or charged."
What could they do under Section 4? What decision could they make under Section 4? That is the section in which they are supposed to have got all these powers. It might be a perfectly legitimate expenditure from their point of view but nevertheless it might create a deficiency. Is the word "deficiency" here to be interpreted in the ordinary way?
I may mention to the Deputy that the word "deficiency" has been defined in the statutes governing audits. Also, we have many judicial definitions of the word "deficiency". I take it that the Deputy himself, when he introduced his Bill in 1953, had in mind his own definition of the word "deficiency". I am prepared to accept that.
I do not think that is fair. I am a layman. Whatever may have been in any section of a measure introduced into this House by me while I was a Minister does not matter just now. I am asking for information which I think I am entitled to get.
I will give the Deputy the information. It is defined under the—
I know, but the information the Minister is giving me makes me even more suspicious of this term than I was before I got it. I will tell you what this word "deficiency" means now. It means the giving to Local Government auditors of complete power in determining surcharges. If a county council were to decide to take on a road and even if the council felt they were legally entitled to do so, if the auditor came to the conclusion that the work in question was not of sufficient public utility to warrant their decision, he could surcharge the council. This word "deficiency" is intended to give to Local Government auditors a freedom almost to surcharge for anything that is in any way progressive, even if the act itself is covered by some Act of Parliament or another.
I am not objecting as an individual to the illegal payment part of the section, to safeguarding local authorities against making decisions which would result in illegal payments; but whether this word "deficiency" was part of a section introduced by me on a previous occasion or not, I am saying as a layman now that if my attention were drawn to it in this House, even if I were Minister, and if there were pointed out to me the dangers that could result from such words as these, I certainly would have a very serious talk with my officials, with my advisers and the people responsible for the section in order to ensure that the charges made from this side, which are apparently held to be extravagant, were not justified.
Does the Deputy appreciate that these are the words used in the 1925 Act?
I do not care what Act they are used in.
The Deputy administered that Act for years as a Minister.
What does it matter? What is Parliament for? Acts of Parliament are being amended every day of the week in every land. Surely the fact that some section was introduced in the Act of 1925 or that I introduced a section containing these words in a Bill which was never enacted is not a reason for asking the House to accept their inclusion here.
I ask the Minister seriously not to ask for anything so sweeping as is contained in the section. By all means, protect the local authority from doing something which is illegal and from making themselves foolish—I do not say that they would rush into doing these things if they were not protected by some legal provision like this—but, in our anxiety to protect them, let us not go too far and take away from them the very powers we are pretending to give them now.
This section is, to my mind, the most serious section in the Bill, because it is a section purposely prepared and framed as the big stick to be held over members of a council. It is all very well for Deputy Desmond and others to say that we would do certain things. We would, and we would get half a dozen to do them with us, but we know what always happens when the legal adviser tells us that something we are doing is illegal. I have memories of the period before the Management Act when one would be getting something through and there would be a threat of surcharge. The moment there was a threat of surcharge all the boys who had spoken in favour would be talking against it for the next couple of hours to have it knocked out. That is what this section is meant for.
They are not all cowards like that.
That is what the section is meant for. It is meant as the big stick to be used in relation to anything members would look for under Section 4.
It still operates under the 1925 Act in relation to vocational committees.
That is a different situation altogether.
I am already preparing amendments to this that I had not thought of up to the present and I will be bringing them in next November, if the Minister is still here—amendments which I see now are necessary and essential. I cannot see any freedom given under this, and these sections, with the exceptions of Sections 4 and 16, are only padding.
Deputies alluded to the law courts. Fancy a county councillor, in order to straighten out something, having to go out to a court of law. Has he not time enough lost representing the ratepayers inside, without having to go out to a court of law to help the ratepayers again? Most of these sections are framed for the sole purpose of giving work to the lawyers. The section is an objectionable section. It is a section which, in my opinion, has been brought in with a definite object and it should be dropped.
I am afraid the Minister does not at all appreciate the approach we are trying to make to this section. The Minister and his Parliamentary Secretary see the section through the glasses through which they are looking and do not realise that, if they were sitting on the opposite side and looking the other way, they would see this section in the perspective in which we see it. First of all, the auditor is an unknown individual. He is a Local Government official, one of 100. Any one of these, or even the whole 100, can come down and we could have 100 different definitions on a particular subject.
I said before and I still say that the section means that, notwithstanding the fact that under Section 4 local authority representatives have the legal right to make certain decisions by resolution, under (b) of Section 16, sub-section (1) the very fact of an objection by the manager or any of the officials, some of whom were specified by the Minister in introducing the section, immediately creates the position that if the local authority representatives proceed, notwithstanding the objection, to do what they have decided to do by lawful resolution, they commit an illegal act and are therefore liable to surcharge by the auditor, because the manager, in making his objection, is bound to record the names of councillors who are opposing his point of view.
Deputy Smith put his finger more definitely on that point. That is why the Minister, in introducing the section, or interpreting it as it stands, or as he understood it, or as he has been advised by his expert officials,, points this out in column 299, Volume 150, of the Dáil Debates of 21st April, 1955. He divides (a) and (b) and in (b) there is the phrase: "in consequence of which an illegal payment is to be made." Nobody is objecting to an illegal payment being presented, but the Minister goes on and says:
"(b) in consequence of which an illegal payment is to be made, or a deficiency or loss is likely to result..."
The word "or" brings in the "deficiency or loss which is likely to result", and now becomes an illegality.
What is a deficiency? The Minister says it is defined in statutes and in court decisions. We all have a layman's view of what a deficiency means. If we strike a rate in accordance with the estimates and if, in the course of the year, we decide on certain expenditure which is not included in the raising of the rate, we shall obviously cause a deficiency as between income and expenditure. Is that going to be called an illegal act? Then every Supplementary Estimate would be illegal, because it is trying to make up a deficiency. The Parliamentary Secretary need not think that we are approaching this from the point of view of obstruction. Some of us have to work these Acts on local authorities, and some of us have become fairly experienced.
Experts.
Fairly experienced.
I said "experts".
I said experience.
But I say expert, in your case.
I do not know whether or not I am an expert. I always try to remember that, no matter how long we may live, no matter what experience we gain, we always have a lot more to learn. What does "loss" mean? "Loss" can be defined by a local government auditor. We buy some gadget with which to experiment —let us say, something for a new form of street lighting or a new form of protective gadget for street crossing, and we put it into use, even on a trial basis. When we discover that it is useless, that the position is worse than before, and we decide to discard it, we have created a loss.
If you get a fool to advise you, it would lead to loss.
It takes a fool to know another fool, and some of us are not fools. Consequently we would not be advised by fools——
You might be foolish.
Progress is achieved by people who indulge in what certain other people regard as foolish and extravagant experiments. If these foolish people prove successful——
Perhaps we might, make some progress if we discuss the section.
Many of us on this side of the House who have spoken in this debate have great experience of local affairs. I am trying to bring the Parliamentary Secretary with me step by step. I am trying to be courteous, and I am trying to correct his interjections when they are made, might I say, wrongfully and illegally. I am trying to illustrate with these definitions and these interpretations, because the words of an Act of Parliament, in the hands of a body of Local Government auditors, can bring chaos into the control of local affairs. I have given illustrations of certain things. There is no use in quoting what is in an Act of Parliament of 1925, as being comparable with a similar set of rules or sections, in a different context.
I will give another illustration. A council may, under Section 4, decide to acquire certain water rights from a stream or spring. That stream or spring may suddenly dry up, and the local government auditor can come along and say: "That was a very foolish thing to do. You were warned by your engineer not to do it. Therefore, you have created a loss for which you are responsible." I appeal to the Minister not to regard local representatives as a body of school children who do not take their responsibility seriously. I should like to make a present of this to the Minister. I do not care who the advisers in his Department are. I can pick officials or representatives of local authorities who could teach local government to some of the Minister's officials.
It is all very well for a Department of State to design all the ropes necessary to bring about a complete stranglehold on the operations of a local authority. Local representatives have to deal mainly in operations with human beings. There is, as it is, a sufficiency of red tape that makes it impossible to act quickly sometimes, particularly in emergencies. Now we are going to put into this Bill a section which will provide an example of puppets dancing to the pull of strings from the Custom House.
The strings are false.
I agree with the Deputy that they would be very false strings. When the Minister is talking about illegal payments, nobody objects but then he brings in the question of a deficiency or a loss without defining the limitations to the creation of this deficiency or loss in some form or explaining in the section to what extent the manager is limited in making his objections. We have gone into this in great detail.
Hear, hear!
I wonder has the Parliamentary Secretary gained any knowledge——
From repetition?
——seeing that he is now saying "hear, hear!" when I say that we have gone into the matter in detail.
It is true.
I agree with the previous speakers who said that the Bill, without this section, would not be the Bill that the Custom House wants.
I do not know what the Deputy means by reference to the Custom House. The reference is to the Minister. The Minister and nobody else is responsible to this House for the Bill.
The Minister, in his official capacity, has his abode in the Custom House.
I think the Deputy would avoid a good deal of ambiguity by referring to the Minister rather than to the office of the Minister.
The Minister and the Parliamentary Secretary will have to admit that, without this section, they would have a very emasculated Bill. Without this section, it would not be a Bill at all. We who are representatives of local authorities say——
Of one local authority. Dublin Corporation is not the whole country.
We have representatives here at the moment from Wexford, Cork, Donegal, Waterford and Cavan.
They do not agree with the Deputy, of coarse.
Yes, we are all in full agreement.
Deputy Brennan?
As I said before——
The Deputy has said it nine times already.
——I recognise my own limitations. I am not prepared to speak as if I knew anything about local authority operations in a rural area. I am only competent to make some effort to speak on local authority matters concerning the City of Dublin. I can only refer to this particular section from my examination of it and knowledge of it. I am pleading with the Minister and Parliamentary Secretary to imagine themselves opposing this Bill in 1953. Would they not have agreed, if they were speaking on it in 1953, that it meant all the things we now say it means?
And you would have taken the opposite point of view.
I do not understand a Deputy of the standing of Deputy Sheldon making that crack. If Deputy Sheldon goes to the Library and looks up the amendments I introduced in regard to the Committee Stage of this Bill in 1953 he will get up here and bow his apology to me.
I have seen amendments to Bills from that side of the House.
I challenge the Deputy to go into the public office and ask to be handed the list of my amendments to the 1953 Bill and find out whether I have changed.
I would rather see a list of the times the Deputy voted against his Party.
Let us deal with the section.
I will deal with the section, Sir. I opposed this Bill in the form in which it was presented in 1953 to the same extent that I am opposing this one now. I am not illogical. I am not concerned with a Party approach to it but I am concerned with local government generally. I want to see my colleagues on local authorities, irrespective of the Parties to which they belong, put in a position of being able to administer local affairs without being unreasonably hampered and without their life being almost rendered impossible from the point of view of trying to get things done. I have always said I believed in the managerial system. I believe absolutely in it.
That cannot be discussed on this section.
The managerial system I want is the system that serves the local authorities but the managerial system we are creating under Section 16 is a system where the elected representatives of the local authority are subservient to the manager. I am particularly concerned at the moment so far as Dublin is concerned.
No wonder.
I take it that the Parliamentary Secretary portends something he expects and hopes will not happen.
It is not because the Parliamentary Secretary interrupts that the Deputy should travel away from the section.
Is it unreasonable on Committee Stage of a Bill to try and reason with people who oppose your point of view?
By dealing with the matter under discussion.
Yes, Sir. I am going on to the point I was trying to raise before the Parliamentary Secretary anticipated me. Here you have a manager of whom you have some experience and who is going to be with you for a considerable number of years. You know his attitude and you know he is reasonable. You may sometimes compromise on certain matters because you know you are going to get co-operation and agreement but where you are faced, as we will shortly be, with the appointment of a new permanent manager who is as yet unknown to us and who according to——
I do not see how this arises on the section. You cannot proceed to discuss who may be manager on this section.
Surely, Section 16 is related to Section 4? The whole purpose of Section 16 is to nullify Section 4.
I am not going to enter into that matter. It is not within my province to say whether it is or not or to say what type the manager will be. What is in this section is what is under discussion.
Would the Deputy be allowed to name the supermen he is looking for?
That is a very relevant remark?
Would it be in order?
May I read this to you:
"Where a proposal is made at a meeting of a local authority to do or effect any act, matter or thing—"
I shall not read paragraphs (a) and (b).
the manager (or, in his absence, such other officer as may be designated by the manager) shall object and state the grounds of his objection, and, if a decision is taken on the proposal, the names of the members present and voting for and against the decision and abstaining from voting on the decision shall be recorded in the minutes of the meeting.
We are going to have—what is this called in other countries?— the commissar system.
This refers to certain functions of a manager but we cannot discuss what type a particular manager is likely to be.
I am off that line. I am taking your ruling on that, Sir. According to this, the manager, whoever he may be, everywhere now, according to the Act of Parliament, keeps a minute book and he says to members of the local authority—unlike you, Sir, here—"I am objecting to this thing that you are going to do and I shall put your name down in the book. I shall serve you with a summons and then, if you proceed to do what I object to you will be all made pay."
He does not say any such thing.
By saying it he may cause it to be so.
He does not surcharge. The auditor does.
He brings it about.
That makes it worse.
Did you not know that?
He is only waking up to what the section contains now.
That makes it worse.
Where is the expert?
Hallsbury.
I must protest. I never described myself as an expert. The Parliamentary Secretary is an expert. It is only a person who has never served on these bodies who can be an expert.
It can scarcely be called a relevant approach.
The Deputy wants to spend more money upon O'Connell Bridge.
Deputy Briscoe, on the section, I hope.
Sub-section (3) says:—
"Where, in accordance with sub-section (1) of this section, the names of the persons..."
It does not even give them the credit of calling them councillors. It is as if you were reading about an inquest on somebody who has been done to death by "persons unknown.""Persons"—the contempt in which local authority representatives are held by the framers of this Bill. I must protest. If we were to refer to the members of this House in our legislation as "persons"——
A perfectly reputable term.
Not in the sense in which it is used here.
Halsbury cannot define it for us.
——
"Where, in accordance with sub-section (1) of this section, the names of the persons voting for a decision to do or effect any act, matter or thing are recorded in the minutes of the meeting of a local authority, those persons shall be surcharged..."
It does not say anything about the auditor coming down to examine it. They shall be surcharged and even if an auditor thought it was unfair or unreasonable, the Bill says:—
"Those persons shall be surcharged"—not may—"on any surcharge or charged on any charge that may subsequently be made as a result of the decision as if they had made or authorised the making of the payment or caused the loss or deficiency, and no other person shall be surcharged or charged."
The manager is safe.
Under the present managerial system under which we work, the manager is responsible. If he makes an illegal payment he is surcharged. You could have a case where the manager and the councillors might be jointly surcharged but here you are putting the local authority representatives in that position. I warn Deputy Larkin that if he comes along, if this Bill becomes law——
On a point of order. The Deputy has said this at least six times on the section.
What have I said six times?
It has not sunk in yet.
What have I said six times? There is no need for the Minister to be ruffled, to lose the sense of humour that he usually displays. We are quite serious about this.
You are quite serious?
Quite serious.
I wish I could see you sometime when you are frivolous.
We can be frivolous elsewhere or on other occasions.
You are unfair to yourself.
We are waiting for the Parliamentary Secretary to speak.
You did not give him a chance.
Deputy Briscoe.
I am quite serious in my approach to this matter. I have not said six times or once before that I warn Deputy Larkin that if this Bill becomes law with this section as it is he will find himself in great difficulties whenever he comes to a meeting of the local authority and proposes something which may cost a little money which, in the opinion of some people, is not necessary or a waste but which he wants to propose from the human point of view to bring some alleviation of hardship or distress. He will find himself fighting a lone battle and never getting anything done because——
Because I get no support from Fianna Fáil members on the council.
You will get none from anybody under this Bill because they will all have to pay for your good deeds and your good intentions.
They will not like that.
Will the Minister tell us or quote from one of the statutes the definition of the word "deficiency"?
I leave that to Hallsbury.
Or Deputy Smith.
We are asked here to pass a section in the debate on which the question has been raised and doubt has been expressed as to the meaning, in its application to local authorities, of a particular word. We ask the Minister to define it for us and he says "I refer you to Hallsbury".
Or Deputy Smith, better still.
Deputy Smith or Deputy Briscoe—they are the people to define this for the rest of the country.
If the Minister and the Parliamentary Secretary will accept my definition——
And write it in.
I will give it and let it be written in.
You were not worried about that until Deputy Smith raised it. You only brought it in a few minutes ago.
Deputy Briscoe on Section 16.
I want the Minister to define—I challenge him to define—this word.
Go ahead.
"Go ahead", says the Parliamentary Secretary.
Define, yes.
Could I ask him to give us the definition?
He does not do crosswords.
I want to know how you define "loss". How is the loss created? Is it over-all or is it limited in any way to any particular set of decisions or transactions? Can we have these words interpreted or defined for us? I have heard many interpretations but I want them defined and if these limitations can ease my serious suspicions about how this thing will operate afterwards it will perhaps make it much easier for us to get together on the matter but, on the present wording of that section, and having regard to the implications I see in it freedom of action in respect of most of the things the local authorities want to have freedom to do, the control of their city manager in cooperating and working with them, is greatly endangered here. I object very much to having a situation where unknown auditors with unknown interpretations of certain things will be the final arbiters and the final judges, imposing on local representatives these punitive measures for action which they may take in the course of their duty with the best intention of doing what is right and proper for the people who elected them.
The discussion on this section this evening has been rather intriguing. On the one hand the section takes away from public representatives powers which should have been left to them and there is a threat in the section that if the public representatives do wrong they are liable to be surcharged for their wrong-doing. Apparently the person who is going to make that decision and issue that edict is the county manager who is implied under the Bill generally as being an officer of the council, subject to their advice and in an executive position after that. In this section he is given the power of determining whether the real representatives of the people, the custodians of the people's purse, are to be penalised if they do something to which he objects. That may be a good thing because if public representatives are warned that they are trespassing on the law and breaking the law, they should gladly accept such advice and restrain themselves from so doing.
The section to my mind is right in so far as it applies in that regard, but what is far more fundamental in my view is that we want to get the right type of person in the country to take an interest in local government and in the administration of local affairs. These men must be men of discretion and honour and integrity and understanding and should not be dictated to from any direction or by any official. It may be in the form of advice.
That is all it is. That is all the manager does—he gives advice. He does not surcharge.
But the threat is there if this Bill is carried through that certain acts of the county councillors may lead to a surcharge. By imposing that threat you may be undermining the responsibility and the authority of the men elected.
It is the same wording as that of the 1925 Act.
The same form of threat was carried on there and do not think for a moment that you are doing a good thing in leaving the public representatives of the country subject to such threats. Local government should be administered by men who use their own consciences, their own experience and their own knowledge without such threats. They should be men capable of using their own understanding without the shadow of such threats. The whole principle of the thing seems to be not only to discourage the right type of public representative but to encourage the individual who does not want these responsibilities.
The principle of a Bill like this should be the encouragement of the individual who is capable of carrying responsibility and of carrying out his duties in a right and proper manner. That should be the aim of any local government Bill. What this Bill does to my mind is to destroy initiative and independence and keep out of public life those who would be capable of managing their own affairs successfully. It not only does that, but it encourages the person of no responsibility to shelter himself behind the protection of the manager. Afterwards the representative may say, if he feels like it, that he wanted to do something irresponsible, but that the manager would not let him. So you have a dual prospect in this Bill aiming at destroying the proper management and protection of the people's affairs. It may be expedient to threaten the local councils with damages if they pursue a certain line, but this threat will make them feel that they are endangering themselves in so far as the Department may suc them and surcharge them.
I say that the responsibility should be put on the councils. I tell the Minister to get on with the job and give local councils men of responsibility and integrity and not give the managers the notion that it is their duty to order and that their orders must be accepted.
Supposing the manager makes a mistake. Is he to be surcharged? Has the Minister taken the same precautions to ensure the public against the manager's mistakes as he has from the point of view of the public representative? If not, why not? The Minister is giving the manager a prime responsibility and a final word. This section is wrong. It may be expedient to bring it in; it may be expedient to devise these schemes, but it is not aimed at getting better local government and I advise the Minister to reconsider the whole thing and to withdraw the section.
I appeal to the Minister to withdraw this section as being objectionable in character and unnecessary in import in relation to the whole Bill. In the first place, this section is linked up with Section 4, which purports to give certain authority to councillors which before this they did not possess. In that section they are tied up by various subsections setting out very carefully the time necessary for notices of motions, the period which will be given for consideration of the resolution, and the particular objects to which it may or may not apply. Now we are told that anything that is not in conformity with sub-section (9) of Section 4 is null and void.
On a point of order. We are dealing with Section 16 now.
I know we are, but, is not the very first sub-section in Section 16 linking it up with Section 4?
The Deputy may only discuss Section 4 in so far as it relates to Section 16.
And I am discussing Section 4 in so far as it is linked up with this section in its very first sub-section. Section 16 states that anything done against Section 4 is null and void. We have this section in order to provide for penalties, but how can a penalty arise, and if it does arise who is to be charged with the responsibility for having caused it?
In Section 4, sub-section (8) it is stated that if money is provided for a specific thing the manager can, by resolution of the council, be authorised to go ahead with that particular business in so far as the money is provided. If he goes ahead only to that extent, how can there be a deficiency? What is all this talk about deficiencies then? If there is a deficiency is it not the people who did not provide enough money in the first instance who should be surcharged rather than those who voted for the work going ahead on the estimate of the officials?
The resolution can only authorise the manager to go ahead in so far as the money has been provided. Consequently, the resolution of the council so authorising the manager cannot cause any penalty to be imposed on any member of the council. In that case, why have this section at all? The three who put their name to the resolution originally may not attend the council meeting at all, and it is not the people who voted the money but those who voted for the resolution to expend the money who will be surcharged if there is a deficiency. Is not the whole thing confusion from beginning to end?
We are told this cannot apply to the functions of the council generally. Is that not so? We are told it cannot apply to the functions of the manager in so far as it deals with officers or servants. Sub-section (9) states what it cannot include. Under this section we are discussing the council can vote money for certain work. By giving certain notice, signed by three members of the council, a special meeting can be called to authorise that work. Under Section 8 that work can only be proceeded with in so far as the money is provided. If the members of the council vote in favour of the work, then everything should be in order, and there is no necessity at all for the confusion this sub-section tends to introduce or the discredit it would seem to cast on public representatives by implying that they will act irresponsibly and pass resolutions for the illegal expenditure of money.
I cannot understand how anyone could come into Parliament with a sub-section like this. To my mind it has no application. It is, as has been said, the big stick held over public representatives: "You can do certain things, but, if you do them, even though the money is provided and you authorise the manager to go ahead, and anything happens subsequently in the carrying-out of that work and there is a deficiency, those who voted for that particular work are the people who will be surcharged." Did anyone ever see a more senseless section put before Parliament for adoption? I certainly did not.
Does Deputy Briscoe understand now what the meaning of a deficiency is?
I have listened to-night to the back benchers of Fianna Fáil who have now become front benchers debating this Section 16. I am a member of a local authority. I listened to Deputy Allen to-night. Deputy Allen did not turn up at the meeting of the Wexford County Council to meet the Minister.
That does not arise on the section.
Deputy Allen was not invited to the meeting and was not entitled to be there because he is neither chairman nor vice-chairman.
There were other members there who were not chairmen or vice-chairmen.
Unwelcome guests!
If members of the county council vote for the squandering of the ratepayers' money, then they should be surcharged. If this section had been in operation before this the ratepayers of Dublin would be getting a refund to-day from the Dublin Corporation in respect of the monument on O'Connell Bridge.
Any member elected to a local authority takes on a certain responsibility in relation to the expenditure of rates collected from the ratepayers. It is their responsibility to ensure that those moneys are not squandered and that they are put to proper use. Up to this Fianna Fáil have always backed county management. I voted against the County Management Act. I would like to see it abolished to-morrow and I would support its abolition.
The Labour Party is anxious that local representatives should have more powers. Is not that what the Fianna Fáil Party wants? Why the delaying tactics then? Why take a different line from that adopted by them in 1942? I cannot understand it.
The Deputy is defending the Act now.
I am not defending the County Management Act. If it was wrong in 1942 it is wrong now.
We are not discussing county management. We are discussing Section 16 which deals with illegal payments and deficiencies.
We have a legal adviser in the Wexford County Council to keep us right and tell us if we are going wrong. That is what he is paid for. If local representatives commit an illegal act with the ratepayers' money they should be brought to book. Why should they escape? Ratepayers in many counties condemn their local representatives because the rates are not put to proper use. Now, we in the county councils can strike the rates, but we have no check on the expenditure of the rates. I think it is about time that local representatives faced up to the fact that they should protect the ratepayers and the ratepayers' money.
These are delaying tactics on the part of the Opposition. Are they waiting for their members to arrive? I do not know. All I do know is that they are wasting time.
The one thing which seems to emerge from the discussion here is the fact that the last speaker, and a number of previous speakers on the Government Benches, now try to make it appear that by being against this section we are in fact against any system of protection of the ratepayers' money. That is a completely wrong interpretation of our attitude. It is wrong to say that because we are against this section we are in favour of illegal payments. Did anyone ever hear of anything so ridiculous? We are against the section for various reasons but speakers on the opposite benches pick out only one reason and say that we are against the section because we are in favour of illegal payments and squandering the ratepayers' money.
Who said that?
Then it is alleged that we must have Section 16 for the protection of the ratepayers' money? Now whom would we expect to be the protector of the ratepayers' money? Who is being put up by the Government and the Labour Party as the ratepayers' protector? None other than the persons who have been vilified over years—the county managers. They are now to be the protectors who will protect the ratepayers from the local representatives elected by the people.
You are thinking wrong now.
Let us have it as we have got it. We cannot have it both ways. We now see that when it suits those in the Government Benches they are for the county managers. For years past, because they thought it was good political propaganda, they were against the county managers. Now the people must be protected from the local authorities by the county managers. In the past the cry was that the people's representatives had to be protected from the county managers. You give us in Section 4 some semblance of power——
You do not understand it.
The Parliamentary Secretary obviously does not.
You cannot read it.
I know a little more than the Parliamentary Secretary about it.
You do not understand it.
I do and I want to interpret it, because like many another member I have experience for some considerable time on a local authority of trying to interpret certain of these Acts and trying to get through the red tape that is continued and perpetrated on local authorities by people in the Custom House, such as the Parliamentary Secretary and the Minister.
Section 16, as has already been pointed out, appears to this side of the House to be objectionable for one particular reason. There are many, but the one particular reason is that the general trend of opinion here is that it takes away from us some of the provisions, some of the advantages or powers that are being given to us under Section 4. Let us have either this power under Section 4 or not have it at all. Why waste the time of the House and the time spent in drafting Section 4 giving certain powers that are later taken from us in Section 16?
Candidly, it is almost beyond comprehension that a Minister, backed up by a Parliamentary Secretary with all their advisers, should for any reason, except some ulterior motive, give us power in one section and go to the trouble of wording another section in such a way as to take it away, and all this is contained in the same Bill. The only reason for this that I can suggest is that, having blown their trumpets so much about what they were going to give us by way of power in the local authorities, they are now faced with the local elections in June and have to mend their hand.
Under Section 4, they have to give us this power, but from the official point of view they do not want to give that power and they take it back in Section 16. They believe that the people will not wake up to this until the election is over. They hope, and it is only a hope, by this means to retain some of the support they gained by using such tactics in the past. That is the only motive that is sensible. It may be a base move, but it makes sense.
Why are you holding up this Bill?
In the name of Heaven, what are we holding up?
Why are you holding it up if what you say is true?
Will the Parliamentary Secretary say what he is giving in this Bill? The reason we are holding it up is that we are trying to enlighten you people in the terms of your own Bill so that you will know before you pass it into law that you are not giving the people anything like what you promised them and that, in fact, the Bill is a fake. That is what we are holding it up for. The Parliamentary Secretary will agree that that is sufficient justification——
You admit you are holding it up now?
No.
If you want to call it holding up, possibly you can, but we are trying to teach you, to educate you, on what is contained in your own Bill.
It was your Bill, too.
Is that the reason you are supporting it?
Deputy Blaney is in possession.
This old story that we should not object to something because we did not object to it in the past— surely that childish argument should be dispensed with. The argument that because you did not do something in the past you should not crib about it now—that is one of the cries we hear so often here. There is no word or question at the same time about what was done in the past 20 years. You will tell us about what we did not do, but you will not tell us about what we did do. It is a handy way of causing a smoke-screen.
The smoke was there that time, too.
I am afraid the Deputy knows——
Section 16.
These interruptions, I submit are being made from the Government Benches with a view to helping them to get this Bill through the Committee Stage.
You do not want the Bill through?
I do not want it through like this, because it means nothing.
You wanted it for 16 years.
For 19 years—let us be accurate.
What I am trying to do is to save the Government Parties from the embarrassment they will suffer——
Thanks very much.
——when they go down the country in June to tell the people what they are going to give under the County Management Bill, whereas they are really giving nothing.
That is what you think.
I would like the Minister to take Section 16 out of this Bill so that when the Bill becomes an Act it will represent something, and will add up to something to justify the words that the Minister used about it here at some other stage when he described it as the emancipation of local authorities. Did you ever hear anything worse in your life? He is a county man of my own and I do not want him to go down the country with this as an emancipating measure. It would be bad enough elsewhere, but it is just too horrible even to contemplate it happening in his own county.
We have heard all the other reasons now, so for shame's sake—if for nothing else—take Section 16 out of it and let this Bill give something when it does become an Act.
Question put.
The Committee divided: Tá, 68; Níl, 40.
Tá
- Barrett, Stephen D.
- Barry, Anthony.
- Barry, Richard.
- Beirne, John.
- Blowick, Joseph.
- Burke, James J.
- Byrne, Alfred.
- Byrne, Thomas.
- Carew, John.
- Casey, Seán.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan
- Costello, John A.
- Crotty, Patrick J.
- Crowe, Patrick.
- Davin, William.
- Deering, Mark.
- Desmond, Daniel.
- Dillon, James M.
- Dockrell, Henry P.
- Dockrell, Maurice E.
- Donegan, Patrick S.
- Donnellan, Michael.
- Doyle, Peadar S.
- Esmonde, Anthony C.
- Everett, James.
- Finlay, Thomas A.
- Flanagan, Oliver J.
- Giles, Patrick.
- Glynn, Brendan M.
- Hughes, Joseph.
- Kenny, Henry.
- Keyes, Michael.
- Kyne, Thomas A.
- Larkin, Denis
- Larkin, James.
- Leary, Johnny.
- Lindsay, Patrick J.
- Lynch, Thaddeus.
- McAuliffe, Patrick.
- MacBride, Seán.
- MacEoin, Seán.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Madden, David J.
- Manley, Timothy.
- Mulcahy, Richard.
- Murphy, Michael P.
- Murphy, William.
- Norton, William.
- O'Carroll, Maureen.
- O'Connor, John.
- 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.
- Sheldon, William A.W.
- Sweetman, Gerard.
- Tully, James.
- Tully, John.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neil T.
- Boland, Gerald.
- Brennan, Paudge.
- Breslin, Cormac.
- Briscoe, Robert.
- Carter, Frank.
- Childers, Erskine H.
- Corry, Martin J.
- Cotter, Edward.
- Crowley, Honor M.
- Cunningham, Liam.
- Davern, Michael J.
- Derrig, Thomas.
- de Valera, Eamon.
- Egan, Nicholas.
- Flanagan, Seán.
- Flynn, Stepnen.
- Gilbride, Eugene.
- Gogan, Richard.
- Hilliard, Michael.
- Kenneally, William.
- Lynch, Celia.
- MacCarthy, Seán.
- McEllistrim, Thomas.
- McGrath, Patrick.
- Maguire, Ben.
- Moher, John W.
- Moran, Michael.
- Moylan, Seán.
- Ó Briain, Donnchadh.
- O'Malley, Donough.
- Ryan, James.
- Ryan, Mary B.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Thomas.
Tellers:— Tá: Deputies Doyle and Mrs. O'Carroll; Níl: Deputies Ó Briain and Hilliard.
Question declared carried.
SECTION 17.
I move amendment No. 27:—
Before sub-section (3), page 15, to insert a new sub-section as follows:—
(3) Notwithstanding sub-section (2) of this section, where a delegation to an officer is made under this section—
(a) the manager may, in any particular case of the performance of the function, inform the officer that he has decided to perform the function himself, and the function shall thereupon be performable in such case by the manager and not by the officer, and
(b) if the officer is satisfied that, in any particular case of the performance of the function, performance would, on account of the importance of the decision involved or on account of any other reasonable consideration, be more appropriately effected by the manager, the officer may refer such case to the manager, and the function shall thereupon be performable in such case by the manager and not by the officer.
This amendment is divided into two parts. The purpose of paragraph (a) is to enable a manager to step in in any particular case and perform a function himself, despite the fact that he has delegated such function to an approved officer. The purpose of paragraph (b) is to enable an officer to whom a function has been delegated to refer back the performance of a function to the manager on a particular occasion. Otherwise, an officer would be bound to perform a delegated function in all cases, even if he differed from the manager as to how the function should be performed.
I am not at all clear on this position. The Minister is dealing with the first amendment only. There is another amendment to the same section.
The two amendments are practically the same and they could be discussed together. If decisions are required, they can be voted on separately, if desired.
They can be voted on separately afterwards?
That is so.
Amendment No. 28 is similar in form to amendment No. 27. The purpose of the first part of amendment No. 28 is to enable the county manager or the Dublin City Manager to intervene in any particular case and perform a function himself, despite the fact that the performance of such function was delegated to an assistant manager. Hitherto, the manager has had no power to perform any function which he had delegated to an assistant manager. As a corollary to the provision in paragraph (a), the second part of the amendment will enable an assistant manager in any particular instance, if the situation so warrants it, to refer back the performance of a function to the manager, despite the fact that this function has been delegated to him; and the manager will then have to perform the function himself on that particular occasion.
I am afraid I will not be able to deal very adequately now with these amendments. First of all, in the case of Dublin, where we have two permanent assistant managers, does the section with the amendments before us included, envisage the position that the manager would in addition to delegating powers to the assistant managers delegate powers to other officers? That is the first point. Can the manager do that?
Yes, definitely.
Secondly, under this section even as amended, we have an officer, who is an assistant manager, completely in charge of housing, for instance. Does it mean now that, notwithstanding the form of appointment which that officer has from the Minister, the manager now can take over to himself the functions being performed by that assistant manager appointed by the Minister?
The Deputy will appreciate that the assistant manager is not appointed by me: he is appointed by the manager.
The Minister is not quite clear as to what I mean. This section deals with the delegation of powers. Our housing director, who is an assistant manager, had the powers over housing delegated to him by the Minister.
No; by the manager.
The powers were given to him by the manager at the request of the Minister. The late Deputy Murphy, when he was Minister, wanted to get speedy development in housing and felt it was necessary to have a housing director under his own steam, under his own control. I move to report progress.
Progress reported; the Committee to sit again.