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Dáil Éireann debate -
Wednesday, 26 Feb 1958

Vol. 165 No. 5

Local Government Bill, 1958—Committee Stage

Sections 1 and 2 agreed to.
SECTION 3.

I move amendment No. 1:—

Before Section 3 to insert the following new section:—

3.—Nothing in the Act shall be construed as affecting within five years of the date of the passing of this Act the tenure of office of any person who immediately before the passing of this Act is the holder of any of the offices specified at (a), (b), (c), and (d) of Section 1 of this Act.

This day week I made a case for this amendment so I would just like now to submit to the Minister the heads of what I said. This is a time for retrenchment. If the Waterford City Manager is retired now it means he will be paid a pension and the incoming man will be paid a full salary and he will take some time to settle down. The present man has shown he is competent to do the job and he should be left there. I would also point out to the Minister that, in my opinion, this is a precedent, and in respect of any member of the Civil Service who has been employed and whose terms of employment say he should be retired at 65, it may be possible for the present Minister or future Ministers to bring in a Bill to remove him.

It was mentioned here during the debate the last time that I did not mention any other public servant than the Waterford City Manager. I consider that this Bill concerns the Waterford City Manager and nobody else. Therefore, if I mentioned any other type of people I would be out of order. The last thing I will say for the Waterford City Manager is that in Waterford at present and going on for the past seven or eight years we have one of the best direct labour schemes in the whole country. Therefore, I would ask the Minister to meet me in this amendment.

Would the Minister indicate when he is replying how many of the present holders of offices specified at paragraphs (a), (b), (c) and (d) have already exceeded the age of 65 or are likely to do so in the immediate future?

Am I in order in commenting on the Act generally or must I confine myself to this amendment?

The Deputy must confine himself to the section and the proposed amendment to the section.

Am I in order in making reference to retrospective legislation?

I do not know what the Deputy intends to say in that regard.

I merely want to say that, leaving aside the merits or otherwise of the Bill, I am in principle against the idea of retrospective legislation. It is a bad thing and I am wondering if the Minister could find any way of getting round that objection. These persons were appointed on certain terms. Going back over those appointments is undesirable and it does create a precedent which might be followed in the future with detrimental effects.

The answer to the last speaker would be that, as has already been said on the Second Reading of this Bill, the purpose of it is merely to confirm what has already existed but about which some doubts were raised. The question of its being retrospective really does not arise as it has operated and has been accepted by a number of managers over recent years and I think a few of them—which will answer Deputy Casey's question—the managers of Laois-Offaly, Wicklow, Monaghan, Cork and Carlow-Kildare, have gone out under the terms of the existing law before this was brought in at all. The reason for bringing this Bill in and making it appear retrospective is the fact that in a particular case doubt has been raised as to the effectiveness of the existing legislation which seemed to have been legal enough and binding enough for many others to have gone out under it in years gone by.

In regard to Deputy Lynch's plea, I can only say that, particularly due to its nature and the manner in which he has made the plea, I am sorry I cannot go some little way to meet him. It is impossible, as I have already indicated, to allow one officer or a few officers as the case might be, to benefit from a doubt that may or may not exist and which has never been tested, and it is in order to avoid the testing of that doubt possibly that we come with this Bill at the moment.

It would be an unfair argument, to point out, as has been done by the Deputy, that, in retiring any specific manager—he mentioned the Waterford City Manager—in these times of retrenchment we are adding to the cost of the public service. That is quite true but is it not also true of every other public servant who is reaching retiring age? If we were to do it in this case, is there not a case to be made for leaving all of them in their present positions until they die or retire of their own free will to the exclusion of the younger people who are coming up and looking for work and who, if they do not get it and have no prospect of it, would only add to the stream of people who must of necessity leave the country? That is all I feel it is necessary for me to say in regard to the argument put forward. No real case has been made for the acceptance of this amendment and I would ask the House to reject it.

As the Minister has rightly pointed out, this Bill is merely a Bill to tie up certain knots in an Act which I introduced some years ago. I should like to say that those knots could have been tied at the time were it not for the pressure exerted by some of the Minister's colleagues to have certain managers retained at that time and I think I did go a long distance towards meeting them. But again, as the Minister has said, the manager to whom Deputy Lynch has referred is a man whose period of office has been extended over five years and who is now 70 years of age. However, I do remember the ex-Lord Mayor of Dublin, Deputy Briscoe, making a special plea for the retention of the present city manager, for whom I have nothing but the greatest respect, but this Bill will tie that knot and put him out of office.

The Bill in itself is a good piece of legislation. It is a Bill that is necessary to tie up these loose ends which we all discover in legislation after we have had some practical experience of it. I am sorry I was not here when the Bill was introduced and I assure the Minister it was not out of disrespect to him that I was not present when he brought this measure before the House.

I do not think it is right to say that the Waterford City Manager is five years over his time. Under his conditions of employment, there was no question of 65 years as a retiring age. Therefore, that does not arise, I respectfully submit to the Minister. What I am endeavouring to point out is that for the future this matter could be tied up, but that where people are employed under certain conditions—I am glad that Deputy Russell agrees with me—this could be called retrospective legislation. All legislation cannot be perfect and we will say that this Bill is necessary, but it should exclude people already in employment, who had conditions of employment as laid down by the Waterford City Management Act, 1939 —the Act under which the Waterford City Manager is employed.

Is the Deputy pressing the amendment?

I am leaving it to the Minister.

The Minister referred to some previous case. Were the managers dealt with in the same way by retrospective legislation?

No. What I was pointing out was that the existing law apparently was sufficient for those people to go out when they should have gone out. Apparently it is not sufficient in this case. Lest it might also be insufficient in other cases in the future, this Bill was thought necessary.

I agree with regard to the future; it was the past I was referring to.

In reply to Deputy Lynch, I do not think be seriously expects to have it both ways. In the first argument, he says that, as retrenchment is in the air, we should economise by keeping on those already serving, and, when the illogical consequence of that is pointed out, he changes feet and puts it on another looting, that is, that somebody already there should not be disturbed. I would not mind if we were disturbing this— in my estimation and I am sure in the estimation of the House—very excellent manager—as I understand him to have been down through the years— and treating him harshly. He has gone into his 71st year, I believe, and is approaching six years over the ordinary retiring age and he is going out on a substantial pension and a fairly good gratuity. I cannot see where any hardship is being created or that we are really taking something from him to which he is entitled.

I was replying to what one of my colleagues said, when he mentioned the conditions of the Waterford City Manager's employment. I am sure the Minister will agree with me that I gave him an argument that it was time for retrenchment and that I gave him a second argument. I do not see what could be wrong with that. I would say that not alone am I moved by a certain amount of personal admiration for the manager, but I am moved by a love for Waterford City itself and for its welfare. I have always tried to judge things by results and the results that the City of Waterford had from this manager justify what I am asking the Minister to do.

I should like to ask whether the Minister said that in this Bill he has tied up all the loose ends in relation to all officers employed by the Department of Local Government?

That does not arise under the amendment.

We have not disposed of Section 3 yet?

Amendment, by leave, withdrawn.
Question proposed: "That Section 3 stand part of the Bill."

I want to direct attention to the point raised by Deputy Russell. I do not think it is enough to say that this is a Bill tying up loose ends. This is a Bill repealing sections from five previous Acts. Now, as I understand the position, in the initial stages of the institution of the managerial system in this country, the appointment of certain urban managers was incorporated in the Act setting up the managerial system in a specific municipality, so that the Cork City Manager was appointed under the Act relating to Cork, the Dublin City Manager under the Local Government (Dublin) Act, the Limerick City Manager by his Act and the Waterford City Manager by his Act, and in each case these persons were appointed on terms set out in the Act. It is now desirable to bring the terms of tenure of office of all managers, county and city, into line. We brought all the county managers on to a common footing in regard to tenure of office by the Act which this Bill will amend. We are now trying to bring the city managers under the same Act.

I think there is great force in the proposal that it would be a much more suitable procedure to provide that, after the present occupants of these offices has retired, the new conditions which we seek to institute under this Bill would apply to their successors. I am not concerned for any manager. I do not know any manager but I want the House to bear in mind that when we enact a statute of this House under which we confer rights upon an individual, they want to be the most secure contract of service that either a citizen or a foreigner could get.

It creates, in my submission, an extremely dangerous precedent if this House reserves to itself the right to say that "notwithstanding the fact that, by Act of the Oireachtas, we gave you certain conditions of employment ten or 15 years ago, we are now going to take them away." It is true, I think, that, under our Constitution, it is possible to do that; it is not at all equally true that it is something we ought to do. Most of these gentlemen may very likely opt to retire themselves, if they have reached the point where they have qualified for the maximum pension. Some may stay on for three or four years, but there is going to be no serious public inconvenience by leaving these specific individuals enjoying the rights conferred on them by Acts of the Oireachtas.

There certainly could be no reason in any way commensurate with the deplorable principle that would be here established, that, by unilateral action of Oireachtas Éireann, we are taking, without consultation or agreement, from these men that which we gave them by Act of the Oireachtas, in the first instance. Would the Minister feel that this consideration would justify an amendment on Report Stage, providing that the new conditions of employment would apply as the existing managers cease to hold office and thereafter, and that, in view of the fact that these men had the warrant of the Oireachtas for their belief that they enjoyed these conditions for life, their existing tenure would not be unilaterally altered by the Oireachtas? That is a point worthy of consideration.

I am afraid that what the Deputy has said does not in any way change my attitude in this matter. In reply to what he has said about rights given by Act of this House to a person or persons—that there now seems to be a taking away of those rights and that the principle there is unfair and unsound—I should like to say that I understand the intention to do this was set out in the Act of 1941. In respect of county managers, it was effective from 1942 and in respect of city managers, it was effective from 1946.

While it was set out in 1941 and was effective for city managers in 1946, the present holder of the office in Waterford City was appointed in 1945, at which stage he would have been aware of the intention of the 1941 Act and, therefore, he would know he was not being misled by any Act of this House, passed prior or subsequent to his appointment.

Why is it necessary to bring this in, then?

Because of the fact that doubts exist, and to resolve those doubts, I have been advised by my legal advisers to bring in this to consolidate the matter, so that there will be no disputes in the courts, or otherwise, about it. I should like to say at this stage that the matter which Deputy Dillon has now raised might very well have been raised, and would have been very appropriate, on the passing of the 1955 Act dealing with these matters. It could have been very relevant to the section now involved in dispute here.

But you had not as good a talker in the Opposition then as you have now.

That is a very debatable point. The question raised then was that there was an agreement arrived at, a signed copy of which I have got, made by the then Minister. It was signed, not only in the presence of a colleague of mine who is still a member of the House, but also in the presence of Deputy Lynch. The agreement was to the effect that the then Minister, now Deputy O'Donnell, would not tie up all the ends and all the knots which he knows himself he possibly could have tied up. The reason for that was that he acceded to the representations of the two Deputies I have named, with specific reference to the manager of Waterford City. The agreement was to the effect that if the knot was not tied so that person would then have to go, he would voluntarily go on 31st December, 1957. That is all I am asking him to do now.

I am not at all concerned with the City of Waterford Manager, or any other manager. I am concerned with the principle and it appears to me that some right must exist in some form, at the present moment, which it is our object to take away by virtue of Section 3 of this Bill. That impression is strengthened in my mind when we hear the Minister say we do not want any litigation about this matter. We want to take time by the forelock and make it impossible to have recourse to the courts in that there is any ambiguity in the legislation that has gone before. That is not a healthy mentality for a Government.

We tried to do that in this House once before. Deputies must remember the Sinn Féin Funds Bill. It was brought into this House to prevent people having recourse improvidently to the courts. The result was that the whole Act was declared unconstitutional and was scarified in a judgment by the late Mr. Justice Gavan Duffy, a judgment which has never been paralleled from the Irish Bench. I do not like Bills in this House which are designed to prevent citizens of this State having recourse to the courts.

This does not arise on the section. It is more like a Second Reading speech.

The purpose of the section is to prevent people having recourse to the courts.

Not to prevent them.

What then?

So that they may not be encouraged.

The distinction is very fine. The distinction between a section preventing them having recourse to the courts, and a section which will not encourage them to have recourse to the courts, is a distinction so fine that it eludes my mind. I do not like legislation in this House, the principal purpose of which is to discourage people from having recourse to the courts. The Minister's colleague, the Minister for Health, was the Minister primarily responsible for the Sinn Féin Funds Bill. I do not suppose any Minister of Government was ever subjected to such a scorching rebuke from the Bench.

We cannot discuss the Sinn Féin Funds Bill.

The principle was the same. It was designed to discourage people going to the courts for fear they would lose their money.

The lawyers got all the Sinn Féin Funds.

Not one penny. Every penny was refunded. There was a very important principle established in that case.

The cow was milked dry.

The Minister says that Section 3 is designed to encourage the Waterford City Manager not to go to the courts. I do not give a fiddle-de-dee about the Waterford City Manager. What I am concerned to ensure is that when Deputy Burke— or that decent widow woman from Balbriggan—conceives that he has a right and wants to vindicate that right in the courts against the Government, against any power that may be raised against him, he will not live in the apprehension that as soon as the Executive of the day, no matter who it may be, hears that he contemplates applying to the court the Executive may come into this House and introduce a Bill——

What Deputy Burke contemplates does not arise on Section 3.

——a Bill identical with this Bill and that Deputies will listen to the argument that this section is not designed to prevent him from going into the courts, but to encourage him not to do so.

There is no comparison here. This public servant wants special treatment as compared with other public servants.

Deputy Burke is quite prepared to romp into the Lobby, if necessary, and vote for this, but he does not know what the section is about.

I am talking of the Bill as a whole and the Deputy should deal with the Bill and not with me.

Deputy Dillon, on Section 3.

I am dealing with the section and I am dealing with the very simple proposition that this House should not take away, by legislation, from any citizen, however humble, rights which he may at present enjoy.

Would that not have been more relevant on Section 2?

No, Sir, and I was told this was on Section 3. The Minister himself said that the purpose of this section is to prevent, or at least not to encourage, anyone to go into the courts to claim rights which he may have and which, in fact, the courts might think he has under previous legislation passed in this House.

You would want to build more courthouses.

Deputy Burke's comment on that is: "You would want to build more courthouses!" Do not let them get into the courts: that is an unhealthy mentality. Now, a good deal of what I said to-day is for the purpose of drawing Deputy Burke and, indeed, the Minister, too, on that, so that Deputy Russell will come to understand the mentality of Fianna Fáil when it has an absolute majority.

That certainly does not arise on Section 3. I would ask Deputy Dillon to relate his remarks to Section 3.

With respect, it is not enough to say that this does not arise on Section 3. With respect, it does arise on Section 3. Section 3 is designed to take away from certain persons rights which the courts might otherwise hold they have. Is that not so? Is that not the purpose of Section 3?

The Minister says it is the purpose; I say it is the purpose. Surely I am entitled to argue as to what the purpose is.

The House has already agreed on Section 2, which certainly has a bearing on Section 3.

I know, but that is no reason why I should not argue about it on Section 3, too. Section 3 amends certain Acts under which the Minister says he believes certain persons might establish they have rights. Is there anybody else in this House prepared to defend the principle that the Oireachtas should not take away, by statute, rights which certain people have?

Deputy O'Donnell will.

I do not know why he should particularly. I think I am doing a pretty good job at the moment, am I not?

Excellent.

That is nice to hear. Perhaps the Deputy has heard the ancient aphorism: "Handsome is as handsome does." I will give way to see what the Deputy is prepared to do.

I want the Minister to clarify one point on this section. The purpose of the Bill is to remove doubts. Unfortunately, I have not had recourse to the various Acts quoted in Section 3 (1) and so forth. Would it be correct to say it was not intended in these Acts that the city managers concerned would, in fact, retire at 65? In other words, are we removing doubts or endeavouring to remove doubts that do not exist? Are we changing the purpose of existing Acts by introducing retrospective legislation to bring particular people into line with the existing practice in the Civil Service? That is the point. Perhaps the Minister would clarify that.

In reply to Deputy Russell, this Bill is merely amending legislation to clarify the intention of previous Acts. In reply to Deputy Dillon, if it is possible to reply, remembering the wide range over which he travelled in relation to this section, let me say at once that the city manager of Waterford agreed that he would go out on 31st of last December.

He is welshing on that agreement now.

That is not for me to say. In relation to the point made by Deputy Dillon in regard to the principle of this type of legislation which has the purpose, as he put it, of preventing recourse to the courts—I somewhat hastily amended that to ‘discouraging people going to the courts'—may I say that I might even go further and further amend my intention by saying that I am trying to refrain from encouraging people going to the courts?

We find it very difficult to hear the Minister.

I am sorry. I thought perhaps only Deputy Dillon was interested in this little bit of explanation in relation to this matter. Lest I may be taken up wrongly, or lest it should be represented by anything Deputy Dillon may have said, that I am trying to get through the House legislation which would have the effect of preventing people having recourse to the courts, I am doing my utmost to refrain from encouraging people going to the courts.

In relation to the Sinn Féin Funds Bill, which the Deputy quoted, the comparison does not stand because in that instance legislation was introduced after recourse had been had to the courts. That is not the position in this case. No recourse has as yet been had to the courts. Therefore, the analogy is not correct. Far from preventing anybody from having recourse to the courts in relation to their rights under this Bill, the Waterford City Manager had the right up to 12th of this month to have recourse to the courts, and he did not avail of that right.

Is the Minister quite satisfied that, if the Waterford City Manager goes to the courts on the constitutional issue that the Oireachtas purports by this Bill, when it becomes an Act, to take from him something of value that he now enjoys——

But he cannot do that.

——would the Act stand up in that eventuality? I believe it is perfectly clear, possibly by inadvertence, that the Waterford City Manager acquired the right to hold his position for life, or until he resigned, and that he had that right from the day on which he was appointed. We may never have meant to give him that right, but, on a true interpretation of the statute passed by us, that right was conferred upon the Waterford City Manager. Apparently there was some discussion and it was agreed that if the Waterford City Manager would undertake voluntarily to resign on 31st of last December, no legislative steps would be taken. The Minister of the day was apparently left under the impression that the Waterford City Manager had given such an undertaking.

That has already been discussed on Section 2, along with the amendment by Deputy Lynch.

I want to discuss it all over again, Sir.

It is not in order. Section 2 has been agreed.

Section 3 provides for the amendment of Section 13 of the Waterford City Management Act.

It is purely a drafting section.

It is nothing of the kind, Sir.

The Deputy may argue, but that is my opinion.

That this is a drafting section? Really, Sir, it is preposterous —the repeal of paragraph (3) of Section 13 of the Waterford City Management Act.

The Deputy is not entitled to join issue with the Chair.

This has already been discussed.

Let the Minister go out and chase his greyhounds. The moment he came in here I knew a row would start. I am arguing against the amendment of Section 13 of the Waterford City Management Act in Committee. It seems to me I must have a right so to argue.

We are now seeking to provide, by the amendment of the original Act, that the Waterford City Manager be made to resign. I do not give a fiddle-de-dee from the point of view of the Waterford City Manager himself. I am concerned with the principle that we should, by unilateral legislation, seek to change conditions of employment that we ourselves by Statute laid down. I am asking the Minister— possibly he is not fortified at the moment by the opinion of his legal advisers on this question—would he be kind enough between now and Report Stage to ask the legal advisers to the Department of Local Government if a county manager sets up his rights in court and challenges the constitutionality of paragraph (d) of sub-section (1) of Section 3 of this Bill, what view do the legal advisers of the Department of Local Government take as to the success or failure of such an appeal? I doubt very much if they will get away with it. I do not know whether the City Manager of Waterford would take upon himself the burden of struggling through the Supreme Court with the Executive, but I am quite sure of this: if we know that some legislative proposal is susceptible of successful challenge in the court on constitutional grounds, we ought not to go on with it.

In other words, Deputy Dillon wants this man to remain on until he is 100.

Deputy Burke has been told what to say.

Deputy Burke is well able to stand on his own feet.

I do not care a fiddle-de-dee when the City Manager of Waterford resigns or how long he continues in office. I am solely concerned with the preservation of what appears to be an important principle. I would ask the Minister to get for the House the information as to what his legal adviser has to say as to the constitutionality of paragraph (d) of sub-section (1) of Section 3 of this Bill.

The Minister described this as "drafting legislation", I think?

A drafting amendment.

What is a drafting amendment?

Is the effect of this drafting amendment to change the conditions under which these four men were originally appointed? Does it change their conditions? Does anybody know what their original conditions were?

Undoubtedly it changes them.

It does change the conditions of their employment?

It may change them.

It changes them.

It changes them, but this Bill does not change them; it only confirms what was already the clear intention but apparently not sufficiently clear from the legal point of view.

I am quoting from the Second Schedule to the Local Government Act, 1955, relating to Section 24 of that Act:—

"The declaration may relate to all the offices in relation to which the declaring Minister is the appropriate Minister or to such of those offices as belong to a specified class, description or grade or to one or more specified such offices notwithstanding any other provision made by or under Statute in relation to holding such offices, offices of such class, description or grade or such one or more specified offices (including, in particular, a provision for holding office until death, resignation or removal from office) and in any such case, the declaration and this section shall have effect notwithstanding such other provision."

That is contained in the 1955 Local Government Act which was enacted by this House when Deputy Dillon was a member of the then Cabinet. When this officer was appointed in 1945, he did know that, as a hazard of his occupation, under the 1941 Act, the Minister for Local Government or the Government might make a retiring age order, and the only provision contained in it would be that six months' notice of the intention of the Minister to retire the holder of that office of Manager of the City of Waterford should be given. The manager so appointed in 1945 must have been aware of that. Knowing the great tributes that have been paid to his ability, I am quite sure that, since this was part of Local Government law, he surely would have been aware of what was contained in that Act and what has been carried into this Bill here, and that any or all of the provisions in regard to this matter would be effective from the year 1946, the year after he accepted this position.

No move was made to remove him in a positive way until six months' notice, as provided, was given him on 1st July, 1957, expiring on 31st December, 1957, and as and from that date, he ceased to be Manager of Waterford City in a permanent capacity. As I already said, lest any doubt might arise as to the functions he might perform, he was then by Order appointed acting city manager in a temporary capacity.

Apart from making arguments, I do not think that anything that has been said by Deputy Dillon in regard to this matter really makes any difference to any individual in the employment of this State. I doubt even if it was his intention that anything he said would make any difference. I do not say that in any disparaging manner. The Deputy has been in a rather happy frame of mind these last few weeks and he wants to give us the benefit of some entertainment this afternoon.

I have nothing further to say, except in regard to this gentleman in Waterford City, that I do not even know him. Neither do I know any of the other men concerned who might come within this legislation. I am in the happy position that I cannot be held to have any prejudiced views about the matter. Since I did not have any contact with them or knowledge of them until my official contact in the ordinary way during the past few months, I can only say that I can see no grounds whatever for the acceptance or the non-acceptance of this section. I cannot see any reason in the world why anybody should say that the holder of the Waterford City managership has not had a fair run for his money. Nobody is creating any hardship for him in tying up the loose ends and giving him, at the age of over 70 years —and I am not reflecting upon the Waterford City Manager—the same treatment as any other men who gave good service and had to go at 65 years of age.

The Minister misses the point. I tried to explain that I am not in the least concerned about whether the Waterford City Manager continues in the post or not. What I am concerned with is the principle, that that which a man has to-day shall not be taken from him by an Act of the Oireachtas.

It has already been taken from him.

It has not.

That is the Minister's argument.

I do not think so.

As I understand the matter, this copperfastens the intention of the 1955 Act to change these gentlemen's terms of employment.

What does "copperfastens" mean? Either the man has the right or he has not. If he has not the right, this Bill is unnecessary; if he has the right, this Bill is necessary, as the Minister euphemistically says, to avoid encouraging him to go into the courts to vindicate his rights. You cannot have it both ways. Either he has the right—this Bill is trying to take it from him—or he has not the right, and then this Bill is unnecessary. The real fact is that the Minister's advisers told him it is not at all impossible that if this individual chooses to stand upon the letter of the law, the courts will hold he has the right and the Minister is concerned to prevent him asserting it.

I think it is not at all impossible that it is beyond the Minister's power and the power of the Oireachtas to do what is being attempted. Of course, we have to bear in mind that the Constitution is only a very qualified protection for an individual because it costs so much to vindicate that right in the court of first instance and in the Supreme Court, where the question would certainly be brought for final determining. What I am saying is that I have no objection to the Oireachtas, in its wisdom, setting any conditions of employment for a public employee as from to-day forward, provided the Oireachtas does not take from anybody that which he enjoys. There is no difficulty at all in saying that these amendments will operate only as from the date of the resignation of the present incumbents of the office. Then, it merely becomes a question of what it is advantageous to do from the point of view of public administration. That is not regarded as copperfastening.

That arises under the 1955 Act.

I was busily engaged on other work at the time and I am not prepared to say.

The Deputy was chasing hares at that time.

The Deputies who are now Ministers were as incompetent in Opposition as they are in Government. That is the fault of the Irish people. They have the right to choose anything they like. Our function is to examine this Bill now, whatever was done or not done in 1955. It certainly appears, since this Bill has been brought in in 1958, that the 1955 Bill did not operate effectively to take from anybody that which he enjoys. If it did, this Bill would not be wanted.

The rights would be gone then.

If the Bill in 1955 had done what Deputy Russell thinks it intended to do——

The former Minister says that was his intention.

I do not know anything about that. Whatever happened in 1955, apparently it was found necessary to bring in another Bill now to do the copperfastening.

The Deputy associates this Bill with the 1955 Bill?

I do. This is the Local Government Bill, 1958. This is the Bill we are concerned with now.

It refers to 1955.

We are discussing Section 3 of the Bill.

Section 4 of the Bill says: "The Local Government Acts, 1925 to 1955, and this Act may be cited together as the Local Government Acts, 1925 to 1958", in order to incorporate this Bill in the local government code. They all belong together. What I am concerned about is Section 3 of the Bill which purports to amend sub-section (3) of Section 13 of the Waterford City Management Act, 1939 (No. 25 of 1939). I want the Minister to explain to the House the constitutionality of this proposal. I object to this and I am entitled to question the Minister on the subsequent stage of this Bill to inform us what his legal advisers had to say on the matter.

Deputy Dillon has been trying for the past hour or so to tell the House that this is unjust legislation. It cannot be held that this legislation takes anything from anybody. Surely a man has had a good run for his money when he is over 70 years of age.

The Taoiseach is 76.

Deputy Dillon wants people to be kept on in the public service until they die of old age, so that men coming on will get no opportunity at all. Is that Deputy Dillon's outlook?

Deputy Burke raises a most interesting point. He says it is a monstrous proposition that any legislation of this House should be challenged for a moment, if it does no more than provide that a citizen who has attained the age of 70 years should retire from the public service. Does Deputy Burke overlook the fact that the Taoiseach is 75 or 76?

I think he should go.

The Minister for Health must be pushing on, and the Minister for Justice——

I trust the Deputy will not pass before me, either.

Are all those fascinating public servants to be driven from the public life of the country? Remember, I never adumbrated this thought. This is a pearl which I collected from Deputy Burke. Does Deputy Burke say it is his considered opinion that that rule should apply universally, because if he proceeds to apply it to his own Party, he will decimate the ranks?

That certainly does not apply on this section.

Did I not understand Deputy Burke to raise it when he said——

No, from the public service, and he is very well looked after. I was not suggesting retirement from public life.

I am asking does the Deputy not apply it all round?

That is in the hands of the people.

Very well. If a man is fit to be Prime Minister of Ireland, he should be fit to be a County or City Manager of Waterford. Deputy Burke's argument is a bad one. I think he should take it out and bury it somewhere under a bush. If he would consult the widow of Balbriggan, she would give him the answer.

Deputy Dillon's form was always of the scurrilous type——

I hope I have not said anything to hurt the Deputy's feelings.

Deputy Dillon's remarks on this Bill were to the effect that we are taking advantage of our majority to do an illegal act, to try to take rights away from somebody——

Deputy Dillon's speech can be taken literally and I hope his constituents will remember it and remember that anyone in the public service or Civil Service throughout the country according to Deputy Dillon, should be retained until he grows whiskers down to his knees. That is Deputy Dillon's attitude——

He has held up the House here to-day trying to delay important legislation——

Such as the Greyhound Bill?

Possibly Deputy Dillon is associated with some secret organisation with which this man might also be associated and he might be anxious to help him. Having said that, I have dealt with Deputy Dillon's tactics.

That is the most scurrilous thing that has been said. The only illegal organisation this man belonged to was when he marched to the Post Office in 1916.

Surely you would not pay any attention to what that Deputy says?

No, but at the same time it is going on record and I think it should be answered. This Bill has been brought in time and again with a tenacity worthy of a better cause. The Minister is not long enough in office to know enough about this——

That is what you think. I learned a fair bit about it.

Nobody on this side of the House is in favour of doing away with the rule that people should retire at 65, but where their conditions of employment give people rights, these should not be taken away.

I approach this business with a great amount of restraint and I say to the Minister that this Bill is not a Bill for county or city managers. It is a Bill to do away with one manager. It has been said by the present Minister that when the Waterford City Manager was appointed he knew he should go under the 1945 Act. If he knew that, what was the meaning of bringing in successive Acts ever since? It is definitely a worsening of this man's conditions. I have seen great strikes in this country when one man's conditions were worsened and his fellows came out on strike.

At 72 years of age?

I do not care whether he is 72 or 79. The point is that when this man was appointed, there was no question of that——

Is there any hope that the county or city managers would go out on strike in his defence?

I did not say that: the Deputy should not put words into my mouth.

I said "Is there any hope".

I do not think so. I have been opposing the managerial system since I came into public life and the strangulation of local government by the Custom House, and I say to this young man who is now Minister for Local Government that what this Bill will do is an unjust thing. It is probably the first Bill he has introduced in the House and I suggest to him that he should not do an injustice.

Before the Minister concludes——

It does not seem likely that I shall get a chance of concluding.

I cannot guarantee that.

There is no question of the Minister concluding.

I am not interested in the Waterford City Manager at all, but I am interested in the principle. I am with Deputy Dillon when he suggests that legislation to change the conditions of any civil servant retrospectively is a bad principle. The Minister replied to that by saying that the principle was intended to be included in the 1955 Act, but, through some inadvertence, certain loose ends were left untied and he proposed to tie them up now, or, as has been suggested, to copperfasten them. Was it intended by leaving these loose ends in the 1955 Act to provide specifically for the fact that certain men were in office whose conditions would be changed if the Act of that time had been made more specific? Are we doing an injustice to one or two or three or four city managers by attempting to tie these loose ends now, or would it be more just to let the position remain as it is, allow the present incumbents to see out their period of office, to resign or die, and leave things as they are? In other words, was this purely a piece of innocent drafting to tidy up legislation that does not need tidying up in fact?

In reply to Deputy Russell's questions, let us say it is innocent drafting that was responsible. I think that is the term he used to describe the drafting that gave us the position whereby there might be a doubt. I am not saying there is a doubt.

It is just a simple drafting Bill with no serious ulterior intent?

No; it is just to clear this matter up once and for all, and to put these people on exactly the same basis as all the other servants of like nature at the moment. None of them raised a voice in protest over the years since these things applied to them and quite a few of our managers have retired. I cannot see at all where the injustice arises. I would not like to do anything unjust.

Irrespective of the legalities or illegalities or doubts that may have existed in previous legislation, I have no doubt whatever in my mind that what I propose to do in this Bill is not an unjust thing to any serving officer of any local authority or State service. The reason why I said that and the reason why I am so satisfied, is that, as I have already said, the 1941 Act was there. The intention to have an age limit and the possibility that an age limit might be invoked by the Minister was known and was conveyed to all interested parties in the 1941 Act. The particular manager whom we are now discussing and any other manager who may be concerned in this were appointed subsequent to the passing of the 1941 Act, and therefore knew the terms of that Act, some of the terms creating this hazard of employment, namely, the power given to a Minister in some future year to decide an age limit. The only requirement that was laid down as necessary on the part of the Minister to make that retiring age limit effective in the case of this or any other manager was that it should not be done before 1946 and that when it was being done subsequent to that year, six clear months' notice should be given of the intention of the Minister. In the case of the Waterford City Manager that has been done and the six months expired on 31st of last December.

Incidentally, in regard to the matter that has been mentioned here, I should like to ask Deputy Lynch, when the 1954-55 Act was going through this House, did he or did he not agree, in the company of Deputy Kenneally and of the then Minister for Local Government, and in the presence of the Secretary of the Department of Local Government, that, provided the Manager of the City of Waterford was not disturbed in his office until the end of 1957, the amendment which Deputy Kenneally had before the House to the 1955 Act, asking that he be left until the end of 1957, would be withdrawn? In other words, he was given the benefit of the amendment that he had tabled on condition that he withdrew it and it was not being written into the Act, nor was it being excluded. Since then this manager has got the benefit of the amendment then proposed by Deputy Kenneally and supported by Deputy Lynch. That benefit ended last December. Now, surely, no one, particularly Deputy Lynch, can accuse me or anybody else who supports this measure here to-night of being unjust to the Manager of the City of Waterford above all other managers that may come before us or may be affected by this Bill if it passes through this House.

It is a very extraordinary argument for the Minister to put forward that, because two Deputies agreed or purported to agree, it is all right, if a man gets a particular right to which he is entitled up to 1957, to take it from him then, although he is still entitled to it and the man himself has not agreed to cede it. It is disturbing that I could go to a Minister and say: "Deputy Burke has four years to go and no Bill should be brought in to dismiss him now because he has a right to continue while he is alive, but if you agree with me to give him two years more, it is all right to take it from him at the end of those two years." Surely that is crooked arguing.

I have not the right; Deputy Kenneally had not the right; and Deputy Lynch had not the right, to give away what an official is entitled to. The argument made by Deputy Dillon is well founded. If a person has a fundamental legal right to remain in office, no legislation can be passed which will take that away without imposing a hardship on the individual and outraging justice.

Does the Deputy believe that a man should be left there until he is 100 years of age?

If the Government or the Minister or whoever was responsible was soft enough to give him those conditions of employment, yes.

What will be the reaction on other public servants?

Do not blame that person and do not try to take away what a citizen is entitled to.

That would be legislation for an individual.

Why did the employer, in this case, the Department of Local Government, give him those terms of employment?

Are they now to say: "We made a mistake on such a date. Now we will take this right from him"? The general rule is there. We are not arguing against the general rule. We are arguing that a citizen has certain rights under the terms of his appointment. The Minister says that he knew that they would be taken from him. The Minister went further and made a very interesting point, that he believed it could be done only after six clear months' notice. What was the citizen to do in those six months? What is the intention behind the six months—that this citizen could take such legal steps as he might be advised to take? He could go into the High Court to challenge the Minister's ruling, but that is a costly method. There is no doubt that the six months' notice meant something. Did it mean that he was to twiddle his thumbs for the six months and, at the end of it, say: "I will have to go"? No. The intention was that he could take such legal steps as he might be advised to take, that he might petition the Minister to give him a further period or to take such steps as he might think fit and proper, which is the normal thing.

Now, out of the clear blue sky, in order to copperfasten certain loose ends, this Bill is brought in. This Bill could be brought in only because the man has rights and this Bill is to make sure that they are taken from him. You may argue that it is right to take them from him because he is an old dodderer, 74 years of age. When I was a young lad, I thought everyone over 50 should be put in a bucket and thrown away, but now I do not think so. Is there anybody who will say that the Leader of the Government to-day would not be fit to be a county manager at 76 years of age?

Look at the Chairman of the Milk Costings Commission.

He was 85.

And look at the report.

That is not his fault. It was the Government that appointed him and they must have regarded him as a fit and proper person at that age when they made the appointment.

This cannot be argued on Section 3.

No, but I am arguing against the arguments put forward as to why Section 3 should be retained. I am making the case that the Minister would be well advised to withdraw Section 3, and I put it to him that if it is going to take a right from a citizen of the State which he has under statute, it is unfair to take it away from him by this side-door method.

Just while it is fresh, let us clear the matter up. It is not true that my justification for taking this benefit—if benefit it be, at all—of permanent officership of Waterford City away from the present holder is only because two people, two Deputies of this House, are alleged to have agreed to its being taken away at the end of 1957. That is the argument Deputy MacEoin is now making, and that it is absolutely wrong that these two people, or any two people, could have agreed——

The Minister said that.

I said that—but the Deputy should not have inferred from it, without further inquiry, that it was a bad argument because I only mentioned those two people and that the man himself did not agree. The man himself, according to the records on the file before me, did agree. He agreed to what the two Deputies who interviewed the Minister subsequently agreed to and, as a result, withdrew an amendment but, in effect, got the benefit of that amendment for the past couple of years. It all boils down to the fact that this manager has got two years to which he was never entitled and to which, under the 1955 Act, he would not have been entitled.

You are making it worse now.

I am wise to the game that has been going on over there for the past half hour and I have taken steps accordingly. At the moment, you are scouring the highways and the byways to get Fine Gael supporters, and others, if you can. We have taken steps and our people will be here, in addition to the other supporters, so that you will not get away with a snap division. That, in effect, is what has been going on here and it has been very obvious to anybody who has been keeping an eye on the movements opposite. The crocodile tears being dropped on the Fine Gael Benches do not become the people who are shedding them at the moment either on behalf of the Waterford City Manager or, indeed, any other manager.

We have heard a lot of ráiméis and phoney arguments to the effect that if the Leader of the Opposition is such-and-such an age and somebody else is such-and-such another age and that if they are capable of being the leaders of the nation, surely they would be regarded as being capable of running Waterford City. We all know that these arguments are a bit stale.

As was said here on the Second Reading the other night, in the case of the Leader of the Opposition or the Leader of the Government, or any other elder statesman in this House, no matter what his position, they do not enjoy and will not enjoy the benefits, by way of pension and gratuity, which this man will enjoy, despite the fact that his jurisdiction has only been over Waterford City during the past 15 years whereas some of the people mentioned have had the responsibility of the nation on their shoulders for more years than that man has been the manager of a city. Let us not cod ourselves and let us get the matter into proper perspective. Let us realise that these elder statesmen have earned a lot more by way of retiring gratuity— and that goes for some of those who are making the arguments at the moment. They have earned and are entitled to more, in my estimation, than the man we are now discussing.

We shall not get it.

I am sure you will not and one of the reasons that could be advanced for that is that I do not think you think enough of yourselves —and you should. That is merely by the way—as, I am sure, the arguments which were advanced were merely by the way.

Give yourself a pat on the back, Seán.

The fact remains that this is a drafting amendment—an amendment that has showed itself to be possibly necessary in the future—to make the 1955 Act effective in all cases, even in cases that might be disputed. A number of managers have accepted the terms of that Act without any question whatever and retired. Why cannot the present Manager of Waterford City—who has got two years in a permanent capacity, to which he was not entitled, as city manager—gracefully accept it? I would say to his best friends not to damage him in the House by pursuing this matter to the extent that it may be to his disadvantage before the year is out.

I do not intervene in the hope of delaying the House for any reason. I happen to come from the Waterford constituency and, also, I happen to be an alderman of the corporation over which this city manager now reigns either as manager or acting-manager. I am amazed to hear that the then Minister for Local Government, behind closed doors and without the knowledge of this Deputy for Waterford, at any rate, made any arrangement with a Fianna Fáil-Fine Gael alliance of the time to keep on Mr. Raftis. I see no reason why Mr. Raftis should be treated in any different way from the ordinary city managers of this country or, in fact, from the ordinary county managers. At the time of the 1955 Bill, I suggested to the then Minister that it was wrong to have any back-door methods or to make any attempt to continue somebody in office on a personal basis.

I have no particular feeling for or against the question whether this man should be kept on or not but, if he should be kept on, a similar case can be made for many more. I believe it is a good thing to retire city and county managers at 65 because all other local government officials are required to retire at that age and I see no reason why they should be exempt. I suggest the Minister should continue with his amending Bill as it is and have the very same law for all city managers.

Deputy Loughman intervened to-day to inquire what were the conditions originally fixed in the Waterford City Management Bill. He did not appear to know them. I will tell him. If we look at this Bill, we shall see that the purpose of Section 3 (1) (d) is to repeal sub-section (3) of Section 13 of the Waterford City Management Act, 1939. Sub-section (3) of Section 13 of the Waterford City Management Act, 1939, by virtue of which this manager holds his present position, provides:

"The manager shall hold office until he dies, resigns or is removed from office."

Sub-section (5) of the same Section 13 of the Waterford City Management Act, 1939, provides:

"The manager shall not be removed from office without the sanction of the Minister and shall not be either suspended or removed from office by the council save by a resolution passed by the council for the purpose of such suspension or such removal (as the case may be) and for the passing of which not less than two-thirds of the members of the council voted and which was so passed after not less than seven days' notice of the intention to propose such resolution had been given to every member of the council."

Does that not sound a very solemn and exhaustive description of the fixity of tenure that the manager is supposed to enjoy under the Waterford City Management Act?

You may say, in retrospect, that that was foolish, improvident or anything else you like; but what is important to my way of thinking is that if the Oireachtas makes that bargain, by a Statute of the Oireachtas, with the humblest citizen of the State, it shall not thereafter by unilateral action cancel the agreement therein enshrined. I do not believe it ought to do it under any circumstances and I want to reiterate what I have said several times before. I do not give a fiddle-de-dee about the Manager of Waterford City. I do not know the man and know nothing of his merits or demerits. I am concerned here with the principle. I do not believe that in any circumstances we ought by unilateral action to cancel an agreement of that kind. But this is a peculiarly unsuitable occasion to put our hands to such work, because in the ordinary course of time this manager will resign or die.

An amazing deduction.

Deputy Dillon wants two laws for all public servants.

It is perfectly appropriate, then, in the interregnum between this officer's period of office and the appointment of his successor, to make by Statute of this Oireachtas any amendment the Oireachtas may deem prudent, in the conditions of employment of the Waterford City Manager.

One would imagine, from hearing the Deputy speak, that it was the first Act ever amended in this House, that it was a novel affair.

Go bhfóiridh Dia orainn!

I am sick listening to the hypocrisy.

Stamp your letters outside.

Deputy Burke raised an interesting aspect of this, because he said the city manager and I belonged to a secret society. I am most intrigued to hear that that suspicion has lodged in Deputy Burke's mind and I would be very grateful if he would tell me the name of the secret society of which he suspects the manager and myself of being members.

Sinn Féin.

It might be the Boy Scouts.

They are a respectable organisation.

I observe that the Deputy is thrown into some confusion by the question and I see that the confusion makes him dumb and that he is not in a position to amplify or substantiate what he said. It does not very much matter what he says about me in this House—because we are here to defend ourselves—but I do not think we should pass off allegations about persons outside the House as belonging to this or that organisation, which we cannot substantiate. There is, of course, not a scintilla of truth in the allegation made by the Deputy. I do not know the City Manager of Waterford and I know nothing about him. I never heard of the city manager there until his case was raised by Deputy Lynch. But that does not alter the general principle.

May I recall that this general principle has arisen out of an inquiry made by Deputy Russell of Limerick, as to whether there was a retrospective element in this section? Of course, the answer is that there is and the answer made by the Minister—that this is "a drafting amendment"—is to be excused on the ground of his inexperience. No Minister who knew what he was talking about could say such a thing. This is a very material amendment It is an amendment which could be challenged in the courts and it may yet be challenged in the courts.

Go on; push them to it now.

I have a kind of feeling that the Minister is apprehensive that it will be challenged in the courts. I am sorry to say that, as I have frequently warned the House, the mentality of Fianna Fáil when they get a majority here, as I have seen repeatedly on previous occasions, tends to move in that direction. They would resent any citizen of this State challenging their legislation in the courts; they would regard it as lése majesté, as unjustifiable. I think the Minister would consider it a personal affront to himself if any citizen went into the courts to challenge his right in this regard.

The Minister is entirely wrong in describing this as a drafting amendment. It is nothing of the kind; it is a very material amendment. It removes a fundamental section of the Waterford City Management Act of 1939 which provides that the manager will hold office until he dies, resigns or is removed from office. Sub-section (5) of the same section, Section 13, purported to lay down very rigid conditions for the procedure appropriate for removal of a county manager—which can only be done by a two-thirds vote of the council after seven days' notice of the meeting had been issued, and subject to the sanction of the Minister himself.

The more I reflect on this, the more abundantly clear it is to me that this House should be informed by the best legal opinion that can be got as to the constitutionality of this proposition, with special reference to its impact on the Waterford City Management Act of 1939. I would invite the Minister to make that opinion available to us when the next stage of the Bill comes to be considered.

Question put and agreed to.
Section 4 agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take the Report Stage?

This day week?

Can we have it now?

In the ordinary course I would not delay the Bill, but in view of the grave constitutional issue raised by Deputy Dillon I must do so. After all, this Bill may be ultra vires the Constitution and I think we should invite the best possible legal opinion that is procurable on the Bill and particularly on Section 3. The Minister would have an opportunity between now and this day week to get that opinion or consult with the legal adviser.

The only thing I would like to say is this—and I am sure the Deputy is quite well aware of it. I would say he is aware of a lot more than has been said by his colleagues over there, that would have been helpful, but naturally he cannot be too helpful in present circumstances. I would say that if there is a constitutional question on this matter, that is not something upon which I can pentificate in this House. I do not suppose that Deputy Dillon, who has raised the matter, can pontificate on it either. I do not care whether I get the Report Stage to-day or this day month, but I should like to get finished with the Bill. The whole thing boils down to the adage that what is sauce for the goose is also sauce for the gander. If every other county and city manager is retired at the age of 65, I do not see why there should be an exception in a particular case.

I do not think this is the appropriate time to argue this matter. We shall be prepared to meet the Minister's argument in the matter at the appropriate time.

That is the point: it is not necessary to get any voice or opinion on whether or not this is constitutional. You can assume that it is because it has passed through the hands of the draftsmen and of my legal advisers. Therefore, it must naturally be assumed that it is constitutional.

Would the Minister consult the Attorney-General between now and Report Stage?

No. It is all here. That is what I have been trying to tell the House.

Is the Minister prepared to submit Deputy Dillon's point to the Attorney-General?

No. It would be an insult to his intelligence.

If the Minister wants to adopt that attitude, he certainly cannot ask for the Report Stage now. The argument becomes impossible. We are quite prepared to be reasonable, but the Minister has now taken this attitude.

You have not been reasonable for a long time. Your interpretation is complete eyewash. I do want to put it on record that there is not anything further I shall have to add to the matter when the Report Stage comes before the House.

Report Stage ordered for Wednesday, 5th March, 1958.
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