When we adjourned last evening we were dealing with this section of the Bill. Under the Bill as it stands at present, a vacancy in a local authority can be filled by an order of the court or by casual vacancy by co-option. Only when the number declared to be validly elected is less than the quorum can a new election be held. I want to put it to the Minister that a council constituency comprises a number of electoral areas. For instance, there could be four electoral areas, each electing seven or eight councillors—say, eight with a 32-member council in all. What I am suggesting to the Minister is that surely if in one of these electoral areas a majority of the councillors elected —say, five in the case of an eight-member electoral area—are subsequently disqualified from membership a new election should be held. It seems extraordinary that a new election shall be held only if there is less than a quorum of qualified members remaining on the council and that, in such circumstances, a new election has to be held in every electoral area. One could deem that reasonable on most counts. Where an election in one electoral area—subsequent to a court order—resulted in the disqualification of a majority of the members elected, why not provide in the Bill in such circumstances that a new election be held?
Local Elections (Petitions and Disqualifications) Bill, 1974: Committee Stage (Resumed).
Of course, this is simply a re-enactment of the 1941 legislation. The position is that the only occasion on which a new election will have to be held is if there is not a quorum remaining. If there is a quorum remaining, then vacancies are filled in the normal way of casual vacancies. Therefore, it is not proposed to have a special election for one electoral district. It never was the practice and I do not think anything has occurred which would encourage the House to change that. It is most unusual. As a matter of fact, I cannot bring any circumstances immediately to mind in which everybody in an electoral area would be disqualified. It has never happened and provision is made for the situation if there is not a quorum remaining. But, apart from that, the situation is that people are co-opted to replace them.
The Minister is using as the argument, against what I am suggesting, that it has never happened. I would suggest that the same argument could be used against the provisions of this section because I am not aware of such a large number of councillors being disqualified from membership as to leave a situation in which a quorum did not exist on the local council.
But existing legislation lays that down.
The Minister seems always to adopt the position that if something is in existing legislation, that it is gospel and can never be improved. What we are working on here are suggestions on how to improve legislation. Surely, with time, the Minister's mind must be opened to further improvements of existing legislation. To say that because it is in existing legislation and that, therefore, it is perfect and need not be changed is something I could not accept. All of these provisions, when they come before the House, are open to full critical examination. If there are reasonable suggestions put forward as to why they should be changed or improved, then I think we are being reasonable in doing that. But to say that because what I suggested earlier may never have happened in the Minister's memory and, for that reason, what we are asking should not be seriously considered for inclusion in the Bill is not at all acceptable to my mind. I would say to the Minister that the same argument could be used by me against the inclusion of this section because what this section is covering has, to my memory and probably also the Minister's, never occurred either— where all the members were disqualified—so many members were disqualified that there was not a quorum remaining on the council. Surely the Minister accepts that four or five separate elections are held to arrive at a situation where one has a complete complement of elected councillors, there being a differing number of electoral areas comprising each county council constituency. If, in one of these electoral areas, there are eight members to be elected and subsequent to the election a petition is brought before the court and an order made by the court disqualifying five of those persons, a majority of them, surely, in such circumstances, one could not deem the election held to have been a fair and proper one and that the right thing to do, in such circumstances, would be to order that a new election be held.
I am suggesting that this be included in the Bill only in circumstances where the court did not direct the filling of those five vacancies with specified persons. Obviously, the specified persons in such cases would be persons deemed by the court to be entitled to election had not those other persons been elected, probably those next in line on the ballot paper on the count, those with the next largest number of votes as deemed by the court. I think that the suggestion is reasonable and should receive serious consideration by the Minister. The circumstances with which the section is trying to deal would be of a much more hypothetical nature than the one I am suggesting. We are fully justified in asking that a provision be included here to cause a new election to be held if a majority of the elected members in any electoral area are subsequently disqualified and the court does not declare any specified persons to fill those five vacancies.
I am sure Deputy Molloy will agree that a far more likely thing would be five councillors travelling to a meeting in one car. No matter what their political affiliations we all know it is not unusual to find all of them travelling together if they have any distance to go. If an accident occurred and they were all killed would Deputy Molloy feel that there should be a new election for that area rather than that people should be co-opted to the casual vacancies which would be the normal way of dealing with it?
That is not a criminal political offence.
The Minister is not serious?
Can we have order? Deputies will have an opportunity of speaking on the Committee Stage as often as they like but in the meantime they should desist from interrupting.
Again Deputy Cunningham has come in a little after the discussion started and he has not got the trend of it. He should sit there for a few minutes and he will find out what is going on.
The Minister is the only person who knows all about everything.
Deputy Cunningham has been interrupting and his interruptions have led directly to this disorder.
There has been a reasonable discussion going on between Deputy Molloy and myself about whether there should be a new election to replace a number of people who would be disqualified in one electoral area, or whether there should be co-option as this section decides.
This section? This section does not decide on co-option. This section decides on a full election. It is the reverse. We are talking about section 16.
We are out of order in a way because this only refers to where there is less than a quorum. What Deputy Molloy was talking about is where there is a quorum. Deputy Lalor says that this section decides there should be a new election. It does. Therefore this matter does not arise on this section at all. I am trying to follow Deputy Molloy's line, which is that it would be better in any case where a whole group out of an area had been disqualified that there should be a new election. I do not think that is right and I have said that if they were killed in an accident there would not be a new election. This section does not deal with this sort of thing at all. It simply deals with where there is no quorum. If there is no quorum there must be a new election. Deputy Lalor is right there.
I do not accept the example the Minister has given as being a basis for refuting my argument. We do not dispute the right of a council to fill vacancies occurring due to death of members, whether it is one, five or six, by co-option. Those are what are called casual vacancies in the Acts. What we are referring to is a vacancy which is caused by an order of the court arising out of a petition which seeks to disqualify certain members because in the opinion of the petitioner and subsequently in the opinion of the court those persons were not lawfully elected to that council at all. Where a majority of the elected councillors in an electoral area have been disqualified the electorate who voted in that area should be given an opportunity of filling the vacancies through a new election.
I am not interested in what is in the present law or what is not. I am interested in what is not in this Bill, and this is our opportunity to bring the facts before the Minister. I am suggesting that in such circumstances, in order to ensure that democracy operates in a true fashion and that the wishes of the electorate in an area are reflected in the persons who sit on the council to represent them, a new election must be held.
I should like to support Deputy Molloy. In a case like this three things can happen. First, the court can decide to have the runners-up deemed to be elected but if five are disqualified and there are only four runners-up the court cannot decide to have the runners-up deemed elected. There are then the other two methods. There is the method of co-option to fill casual vacancies. I agree with the Minister that if five councillors are killed in an accident this is how the vacancies are filled. This does not apply here. This arises out of illegal practices. The only solution I can see is the third one, the method put forward by Deputy Molloy. It is the only logical, reasoned method of doing it. I suggest when something happens such as the case described by Deputy Molloy the only sensible way of dealing with it is to give the electors of that area the opportunity of a new election.
Deputy Molloy said that there would be four areas in a 32-member council, four eights. What Deputy Molloy is saying now is that if a majority of those in an area were not properly elected there should be a new election?
In one area.
If the quorum is ten or 12 and there is a group of eight who have been legally elected, just because there is not a quorum would the eight councillors in that particular area have to go before the people again even though they were all legally elected? In the case which Deputy Molloy is putting up now he is only referring to an area where more than half of them would be illegally elected. At the present moment a quorum would put the whole council out. Even though one area was properly elected the whole council of 32 would have to go out to be re-elected. That is not fair. If an election is carried out properly in one area and nobody is disqualified, it should stand. If the majority of them are disqualified in any particular area there should be a new election there. I would like clarification on the other matter because it would be grossly unfair on the quorum.
The law as it has stood right down the years states that where there is a quorum they can co-opt. Deputy Molloy takes one particular area and says : "Suppose in one area everybody has been disqualified and not replaced, why should there not be another election for that electoral area?" The position about it is this. Deputy Cunningham spoke about only four being left. It does not matter if there is any one at all left. If only the number who went up got elected it makes no difference because they are not being replaced by the court so the council would not be confined——
They have been replaced by the court.
The whole point of this section is that where they are not replaced by the court then the council have the right to co-opt if there is a quorum left. If there is only one area disqualified then there would be a quorum left and they would not be confined to those who contested the election. In fact, if they needed people outside and they decided to have them they would co-opt them. Local authorities, as I know them down the years, have certain rules. One of the things they have carried out very fairly—there may be exceptions I am not aware of—is that, if a man or a woman, who has been elected to represent one particular group or party, goes out, that person is replaced.
That is not true. Deputy Gerry Collins did not get his father's place on the Limerick County Council. Fine Gael grabbed it.
There are exceptions, of course. As far as I see here, the situation is that we are laying down this matter. I should like to make one other point. I want to let all of us have the fullest discussion on this but we are in the position that there has not been since 1961 any court of petition. I should like to ensure that there is a court before the local elections on the 18th June. The only way we can do that is if we are able to get this Bill through this House today and through the Seanad tomorrow. If not, we will be late. Apparently the regulations which have to be made confine us to that time limit.
I think it is the Press conference which the Minister is having on Friday.
The nominations are next week. Do I take it that Deputy Lalor does not want a Press conference, that he feels it should not be announced? If that is his feeling, I have plenty of things to do. I do not have to go to the Press conference or anything else. All I want to do is to ensure everybody knows exactly what is in it.
That is what we are trying to do.
The Minister is taking the House for granted.
I am not. If the Deputy does not want the legislation before the local elections and he wants it to continue as it has been for the last 13 years then the responsibility is his, not mine. I am attempting to get it through.
There is a very easy way to get it through.
Would the Minister like me to reply to the allegation he is making about my efforts to prevent it?
Yes.
I want to say there is no effort on my part and certainly from this side of the House to prevent this.
I will allow the Deputy to reply but it seems to be evading the real issue of section 16 and what is relevant to it. However, Deputy, I will allow you to comment in respect of what has been said.
This is a personal explanation. The situation is that I made reference to a Press conference which the Minister is to have on Friday. I think (1) to line up a Press conference without the Bill being through the House is an insult to this House; and (2) the Minister wants to rush this Bill through the House unquestioned so that he, with the assistance of the Government Information Bureau, can get his ideas about these new regulations across to the Press and not give the Opposition a chance to put their views across. We are the people who have the practical experience of operating at local election level. We know what many of the snags are. The Minister does not want to give us the opportunity of having a straightforward discussion on it. He is in a great hurry now.
My information, as Whip for the Opposition, is that this business was ordered for yesterday. We could have had a debate on it from 4 O'clock until 10.30 p.m. This was curbed yesterday for governmental reasons. Three and a half hours were taken off the time yesterday and now the Minister comes along and tells us this Bill must be through today. If the Minister gives us an explanation of the reasons for this, it will be acceptable to us. I believe the Minister is going round in a circle on this section. Deputy Molloy cited the case of a particular electoral area.
We must get back now to the section. There should be no further reference to extraneous matters. We must get back to section 16.
I am on the section. The situation is that under section 14 (1) (b) the court can decide that they are unable to determine the correct result of an election. I presume that deals with a particular election in a particular electoral area. For example, in a particular electoral area which returns say, seven seats to a county council, the court can come to a decision and declare, the election void. Now we are looking for the way to make the replacements. In view of the fact that the court have decided they are unable to give a result of that election, those seven vacancies have to be filled. The case Deputy Molloy is making is that those seven vacancies should not be filled as casual vacancies. A provision should be included to state that there should be a fresh election in that particular electoral area to elect the seven councillors. If there are four electoral areas, we all know of cases where in three of them you could have an overall majority of one party as against another. They could actually co-opt the seven people from their own party to that electoral area.
The Minister says that this is no change from previous legislation, that it is something we have inherited. If it has been there for a long time we now have a new Bill, we have a collection of 15 geniuses in a new Government and surely they should be able to come up with an amended Bill which could cater for that type of eventuality. The Minister says a lot of things have never happened. Thank God, the electoral system in this country, a system that is much criticised, is straightforwardly operated in a democratic fashion and we have very few electoral abuses. I am thinking specifically of abuses creeping in in a particular area in the next election and having a situation in which the court decides under section 14 (1)(b) that it is unable to determine the correct result; in that situation it would be very wrong for the other 17, 18 or 19 councillors to have the right to co-opt seven members. The electors in that area would not have any opportunity of sending in the six or seven people whom they would like to see elected and Deputy Molloy is quite justified in making the point he has been making.
I would hate to think that the reason we are having all these long speeches on minor points raised on this Bill is because of the fact that there is a Press conference arranged for Friday. I would have preferred if the Bill had been discussed last night until half-past ten. Indeed, I was hoping it would be finished by then or before half-past ten last night.
It is not our fault.
It is the Government's fault.
It is not Deputy Molloy's fault.
When you get Henry Kenny going on the ten o'clock news——
There are too many Government Ministers gadding about when they should be in this House.
The trouble about the Opposition is they have a nasty habit of judging this Government by their standards.
The Minister is quoting John Kelly now.
We do not do these things. I have got in a great deal of amending legislation, including this, which is something that has got to be done. Do not blame me for delay.
What section are we on now?
Section 16.
Section 16 and all the other sections should have been the law before the last local election and the local election before the last.
We would have had it last night only the Minister for Posts and Telegraphs had to be up——
First it was the Press conference, then it was Henry Kenny, and now it is the Minister for Posts and Telegraphs.
Let us get back to the Bill now.
The Chair could confine the Minister to the Bill.
First of all, everybody will agree that those who will be affected by this Bill should know in good time that they will be affected by it and the only way they can do that is by passing the Bill in good time. We then have the situation that ballot papers must be printed.
Are we on section 16 now?
We are. Does the Deputy not want to hear an explanation or is he adopting the attitude of asking questions and then trying to interrupt when the replies are being given?
When the Minister goes off at a tangent.
Order.
This section must be passed along with the other sections.
We know that.
It must be passed because at ten o'clock on 16th May nominations start and, within an hour of the nominations being submitted, they have to be decided by the returning officer. If we do not do this within a reasonable time—that is, before tomorrow morning—that will not be done. If Deputies opposite would prefer to go on talking without my making any effort to reply, then OK. I am trying to reply to the points they made. It is my opinion that the section as it stands is all right and the eventuality to which Deputy Molloy referred is most unlikely to occur but, if it does occur, this section will deal with it. While there might be areas in which it might occur, areas in which political advantage might be taken, the ordinary rank-and-file councillor throughout the country deals in a fair way with his fellow councillors.
The Minister does not know Laois.
I have been a member of a county council for a long number of years and I am giving the experience I have had.
It is a pity the Minister's experience is limited to Meath. He should broaden his perspective.
It is a great deal broader than the Deputy's.
As a matter of fact, it is. I believe this section does the job it is intended to do and there is no reason why we should attempt to change it at this stage.
I want to refute something the Minister said. He said the eventuality I suggested is most unlikely to occur and that is his reason for claiming that our suggestion is not worthy of inclusion in the Bill. I would put it to the Minister that the eventuality suggested by this section is much more unlikely to occur.
Hear, hear.
The eventuality the Minister suggests is that the court might deem such a number of elected councillors to be disqualified from membership of a local authority as to leave less than a quorum on the council. Suppose the total number of elected councillors was 33 and 23 councillors were disqualified by the court, then, and only then, would the Minister's provision in this section come into operation because there would be less than a quorum and there would have to be a new election. I suggest the possibility of that ever happening is much more remote than the possibility of what I suggest happening, but the Minister casts that aside on the grounds that what I suggest is most unlikely to happen. Some electoral areas are as small as four members.
Three.
Where four members are elected and three are subsequently deemed to be disqualified through an order of the court, following a petition, I do not see any justice in allowing the remaining member to fill the three vacancies by co-opting other members. This is a direct insult to the electorate in the area and I do not see how the Minister could claim in such circumstances that democracy was operating or seen to be operating. Remember, in order to bring a petition, one must do so within 28 days of the result of the election being announced.
The petition is brought at the commencement of the term of life of the council and, if the term is five years, this petition is brought in the early weeks and months of the life of the council, and the Minister is suggesting that the other councillor should have the right and the authority to co-opt three members to fill the three vacancies in the particular area. He is suggesting the three co-opted members would represent the electorate in that area for 5 years. The persons co-opted might not reside in the electoral area; they might come from a district 50 or 60 miles away. In effect the electoral area can be seriously disenfranchised and lose its representation on the council through the operation of the system the Minister wants us to allow.
We do not agree with that system. We consider it is most undemocratic and we are making an appeal to the Minister, who has taken time on a number of occasions to tell us how urgent it is that he should have the Bill by a certain date. We would point out that we were not the cause of the Bill being introduced at the last minute, nor were we the cause of the postponement of the debate yesterday evening to allow for a debate on the Estimate for the Office of Public Works, for which there was no urgency whatever. We could have debated the remaining provisions of the Bill from 7 p.m. to 10.30 p.m. More than likely we would have cleared it had we got some indication from the Minister that he was prepared to listen to and to act on our reasoned arguments. As the leading spokesman on this side of the House in this debate, I put it to the Minister that if he gives us some indication he is prepared to accept the points we are making he will not be long delayed in the House. However if he persists in adopting a stubborn, not-an-inch attitude, he is leaving us no option but to take further time to explain our points in greater detail so that he may understand exactly what we are asking him to do.
I appeal to the Minister to give us some indication that he accepts we are making a valid point, that the situation which could arise in the circumstances I have set out could be serious. We accept the Minister would require time to introduce some changes to correct the situation. We do not accept as a valid argument that because a point we are discussing was not included in previous legislation consequently there is no need for it, especially when we remember that the previous legislation about which the Minister spoke is the Municipal Elections (Corruption and Illegal Practices) Act, 1884, and the Municipal Corporations Act, 1882. We should like the House to adopt legislation that would fit the circumstances of 1974.
It is a pity the Deputy did not check his facts. He stands up in this House, he shouts and bawls and he tries to give the impression he knows everything. This attitude really annoys me. What I am quoting from is section 46 of the 1941 Act which was introduced by Fianna Fáil——
It can be improved.
It was in operation until 1961 and was considered all right while Fianna Fáil were in office. In 1961 the way in which petitions were carried out was ruled to be wrong and from then to date there has been no system of petition whatever. I am trying to get this measure through now. While I agree there is a valid argument in that we could have spent more time on this yesterday, that is the only part of the argument that is valid. We are dealing with section 16 but what we are discussing has no relevance to it. The item we are talking about deals only with a situation where there is no quorum. The Deputy is making a case for amendment where there is a quorum and where co-options are taking place in a certain way. Section 16 deals with a situation where there is no quorum, good, bad or indifferent. I suggest what the Deputy has said is out of order and I do not propose to pursue it further.
I disagree with the Minister's statement that what we are discussing is not relevant.
The Chair will decide. On a point of order, may I ask for a ruling on this?
It appears to me it has been accepted by the Minister and other speakers and by the Chair prior to my being here as being relevant and I do not see why I should change that now. However I think it will be accepted on all sides that we seem to have devoted a considerable amount of time on section 16 and perhaps we could move on.
I should like to point out why and how the suggestion is relevant. Section 16 is the only section that provides for a new election. All the other sections provide for a filling of the post by the court, by a declaration that a specified person be deemed the elected person in place of the individual who is disqualified, or provide for the filling of the vacancy by co-option. Section 16 is the only section that deals with the filling of the vacancy by an election. Am I correct in this?
Section 16 specifically states where there is no quorum.
The section is the only one that deals with the holding of a completely new election.
The Deputy is not talking about a completely new election. He is talking about an election in one electoral area. That is a different thing.
The Minister is talking about a new election.
Yes, I am talking about a new election, which is dealt with in section 16.
I am referring to a situation where there is an obligation to return to the electorate to decide who will sit on a council.
No. What the Deputy is talking about is where a particular electoral area returns to the electorate.
I am referring to a situation where there is an obligation to return to the electorate to decide who will sit on the council.
Section 16 does not refer to that.
Section 16 refers to a situation which necessitates a return to the electorate in order to decide who shall be deemed members of the council. That is all the electoral areas, all the county council constituencies. If a situation arises where there is less than a quorum on the council, they must return to the electorate who will elect new councillors.
Section 15 deals with the matter about which the Deputy is speaking.
Acting Chairman
The Chair has some difficulty in deciding if the point Deputy Molloy has made is appropriate to section 16.
I am asking the Minister to consider the inclusion in the Bill of a provision that where all members, or a majority of the members, in an electoral area are deemed to be disqualified, in such circumstances there shall be a new election. Under section 16 the only time a new election can be held is when there is less than a quorum on the old council. I suggest it is granting less than full democracy to people when their councillors can be deemed disqualified and their places filled by co-option. As we know from practical experience, the co-options could involve persons who are not residing in the electoral area concerned, who may have no knowledge of the problems of that area, or who may not know any of the people in the electoral area. An anomalous situation could be created because of the Minister's provisions.
I am asking the Minister, as a practical politician, to accept what I am suggesting could happen. I am asking him to accept my proposition that it should not be allowed to happen. I am also asking him to accept that now is the only time when he or the House can provide against such an eventuality. Finally I am asking him to concede that it should be done now.
It does not arise on this section.
This is the place to legislate and not anywhere else. It is our duty to ensure that legislation passed by this House has as few flaws as possible. In this section there is a definite flaw. What the Minister is providing for is that, if an election in all the county council electoral areas of a county is declared illegal, a large number of those elected are declared to be illegally elected and are therefore disqualified, this leaves a situation where there is less than a quorum.
We are trying to ensure that the same would apply to each individual electoral area. Take the case of Donegal where there are five electoral areas. If there is illegality in each one of them and certain councillors elected in each electoral area are disqualified and there is less than a quorum, then the Minister is providing for a new election. That is fair enough. We are not quarrelling with that. We agree that is the correct procedure. If it arises that in one electoral area the overall situation covered by this exists and all councillors elected are disqualified, or a majority of them are disqualified, then the Minister is denying the people of that electoral area the right to remedy something for which they were not responsible.
We are saying that, if in an electoral area the situation described by Deputy Molloy arises, the wrong way to remedy it is by co-option and the right way to do it is as has been advocated, suggested and pleaded by Deputy Molloy: an election in that particular electoral area. I do not want to see legislation go through this House which can and will give rise to a situation in which, after the council elections on 18th June, there may be an electoral area where people who genuinely set out to do their national and local duty to elect their own representatives are subsequently deprived of that right. Unless the Minister agrees to what Deputy Molloy has suggested, he is asking the representatives of the electors in the other parts of the county, in the other electoral areas outside this electoral area, to decide who should represent the electors and the people generally of that electoral area for the next five years or, as has been the case since the last council elections, the next seven years.
And the previous one was seven years. I agree with Deputy Cunningham that five years is long enough.
The Minister extended it last year.
We are equally guilty. We extended it from five to six years and the Minister extended it from six to seven years.
I did not have time to bring in legislation like this.
We will not sling any mud over that.
Acting Chairman
While Deputy Cunningham is making what could be regarded as a reasonable case, to me it is extraordinarily hypothetical.
He is making it on section 15, which has been passed.
The situation envisaged in section 16 is so hypothetical that I am sure it will never arise. In section 16 the Minister is legislating for a situation which is very unlikely to arise. In the case of a county like Donegal which has five electoral areas, I do not think electoral illegalities would be so widespread as to create a situation in each of those five electoral areas which would result in the number legally elected in that county council being less than a quorum which, I understand, is one-third of the members: 30 plus one; 11. Although it may never happen he is right to legislate for it as he is doing in section 16.
I am not doing it in section 16.
We are not opposing that although it is fairly unlikely to happen. It is more likely that, in a county where there are five electoral areas, you could have that situation in miniature. Take, for instance, an electoral area where there are four councillors and three of them are disqualified by the court, or even four of them. I admit it is not necessary that there should be a quorum in that one electoral area. But sub-committees could be set up or an area roads committee and there would have to be a quorum. There could be county development team operations in the area. However, I will not go into that.
That is section 15, as Deputy Cunningham has suddenly realised.
I am trying to reinforce the argument. This is the only place we can legislate and this House should not pass a Bill which would provide that the people of that electoral area would be dependent on the grace and goodwill of those elected by the electors in the other electoral areas. I should not like the people in that area to be dependent on my party or any other party to carry out a co-option which would exactly represent the decision of the electorate and which was found to be illegal through no fault of the electors.
The Minister has not provided in the Bill that if the situation described by Deputy Molloy arises in any electoral division the people to be co-opted will have exactly the same representation from a party point of view as was given by the electorate. Perhaps it would be an improvement if he would include that in the Bill, but I would not press it too far. He said it happens, but there is no legal provision that it should happen. Therefore, it is not binding and if it does not happen there is no way of remedying it. It does not happen in a very large number of counties. The tidiest and best method of dealing with it is that put forward, propounded and explained by Deputy Molloy, and as a legislative body this House would be doing the right thing in providing for this.
I feel I must apologise to the Chair because in order to answer the queries and arguments of Deputy Cunningham I must refer to matters which I hold are relevant to section 15 and not relevant to section 16. Yesterday, Deputy Molloy made a great song and dance about the fact that section 15 (3) was the one which dealt with co-option.
And I was right.
If the Deputy was right yesterday he cannot be right today. Can the Deputy have been right yesterday and have a directly opposite argument and be right again today? It must be great to have that facility.
Be the big man and admit it.
The Minister was wrong yesterday and he could be wrong again today.
Do not explode. Keep your feet on the ground.
The Minister is trying the usual bluff.
What Deputy Molloy and Deputy Cunningham have been saying, in effect, is that they would like by-elections to take place in certain circumstances at local authority level.
Nobody mentioned by-elections.
They did not, I agree; they were very careful.
In certain circumstances.
Would you make up your minds? Would the three of you go into a huddle and decide exactly what you are in favour of?
The Minister said "in certain circumstances".
I did and Deputy Molloy is prepared to agree with me.
So the Minister says.
Deputy Molloy did not say it.
The Minister said it.
And the Deputy agreed.
I wanted to know exactly what the Minister said.
Acting Chairman
I would remind the Minister and the Members opposite that both sides have expressed anxiety about making progress. This verbal duelling, with speakers addressing remarks to each other, is not helping. If every speaker addressed himself to the Chair some progress might be made.
The position about Deputy Cunningham's and Deputy Molloy's arguments is that in the event of either all the members elected for a particular area, or as it was subsequently amended, a majority of the members elected——
It was not subsequently amended.
I did not hear it at first. I heard it later on, coming towards the end of the argument, but I will not argue over that. Suppose Deputy Cunningham and one of his friends in his own party were the first two elected out of five and it was subsequently decided by a court that the other three—the majority—were not properly elected and the court did not decide who should replace them, does Deputy Cunningham suggest that there should be an election in that area for all five seats?
Yes.
He is a very big man.
The same as for the whole county, the whole area.
The whole stake of five seats. Deputy Cunningham agrees that he should contest the seat which he has already fairly won and his friend should contest the seat he has also fairly won. Lest there be any doubt, I am proposing that, since there is at present no appeal court to which a petition can be submitted under the electoral law, one should be made possible under this legislation. The appeal court set up under the 1941 Act was declared illegal in 1961 and since then there has been no such court, and I do not think we should allow that situation to continue. In drawing up this Bill I have used the sections of the 1941 Act which I considered were ample to deal with the situation and this is one of them. What has been suggested here is that a whole new set of circumstances should be thought up. If it is done in this way we should have a by-election or an election for a particular electoral division with three, four or five seats and if all, or the majority of the members elected are declared to be invalidly elected, we should have an election even though some of them have been properly elected. They should all have to throw in their lot——
The Minister does not think they should have to stand again?
I do not think the situation should arise at all. I do not think there should be any such election. If the council, through the years, had the right to co-opt, as section 15 of the Bill says we have, we should stick to that. The situation is amply provided for under section 15 and I see no reason why we should change the law because of a peculiar sort of thinking which has arisen here.
I should like to advise Deputy Molloy that this would mean not alone changing part of the Bill which has already been passed through the Committee Stage but would also mean that certain other portions of the Bill would have to be drastically altered. As Deputy Molloy is aware a Bill is not drawn up, one section here and one there; it must follow a logical pattern and that having been set out——
It is a package.
An excellent word. It is a package.
And you accept the good with the bad.
I am prepared to accept what is in the package. There is no good and no bad; it is an adequate Bill——
Like Sunningdale.
I know that Sunningdale has taken the sleep from many of you but we are not discussing it now——
Acting Chairman
The Chair would like to get agreement that the discussion on section 16 has been developed, extended and refined to the point where perhaps, it is no longer relevant and, with your permission, the Chair feels that section 16 should now stand part of the Bill.
I object to that and I think it is rather extraordinary that such a suggestion should even be made.
I suppose I should say "Votáil".
The Minister has said that the thinking behind our suggestion is peculiar in his opinion. I do not accept that any of my suggestions could be deemed by any reasonable fair or logical person to be peculiar thinking. If I have to spell it out again I am prepared to do so. What I do consider peculiar thinking—to use the Minister's own words—is for the Minister to say that he disagrees with our proposal that there should be a new election in an electoral area if all, or a majority of the members elected are subsequently deemed to have been improperly and unlawfully elected.
They do not have to be. It is not that they have been unlawfully elected because of some fault of their own. It may be so because of the fault of someone else at the election. It may be an innocent act.
They may have been innocent in regard to the events which led to their improper election. The fact remains that the court deems the election improper and unlawful. They are not entitled to remain as elected members on the council. The Minister does not agree with our suggestion because if a majority of our members are deemed to have been unlawfully elected—perhaps three out of four are declared improperly elected—the Minister says it is unfair to oblige that person who is properly elected to stand again before the electorate in that particular electoral area.
He would have to stand as well as the others who were deemed to be improperly elected. Is that what the Deputy means?
Yes.
All the council should stand?
Others would put forward their names in the new election.
If the Minister considers that peculiar thinking I consider it much more peculiar that he should object to our proposal. The provisions of the section which the Minister asks us to support provide for a similar situation.
No.
Where the quorum is ten and where there are nine properly elected persons on that council, each of whom came number 1, number 2, number 3, and so on, and got elected under the Minister's section as proposed all of those nine people who are deemed properly elected will have to go before the electorate.
Is Deputy Molloy objecting to that?
The Minister objects when a somewhat similar provision is contained in our suggestion. He does not object when the same provision is included in his own suggestion. The Minister cannot have it both ways.
If there is a quorum it should not be done. Deputy Molloy should not pretend to be as naïve as that. You would not ask nine people to co-opt the rest of the 31 persons. You are getting lost in your own argument.
The Minister may not have the capacity to follow the arguments we are making.
I have the capacity to do things which Deputy Molloy was not able to do when he was in office.
The Minister should go easy on the self-praise.
I hate people putting such an argument.
Do not bring Deputy Cruise-O'Brien into the argument.
Acting Chairman
The Chair feels that the debate is not relevant at present to section 16. The Chair suggests to Deputy Crowley that it is not in order to refer to a Minister in this manner.
Perhaps the Chair has better words for this.
Acting Chairman
The Minister for Posts and Telegraphs is the correct title.
The whole point of our argument is that if all or the majority of the members of any electoral body are deemed to be unlawfully elected, in such circumstances the vacancies thus created should be filled by way of a new election and not by co-option. I fail to understand how the Minister can disagree with that proposal. I have pointed out to the Minister that the persons co-opted could come from an area far-removed in the county from the area for which the disqualified people had been elected. There is a small electoral area in Galway County Council called Connemara. It is an area created by the Minister for his own party reasons.
May I suggest that this is not in order? Section 16 does not deal with that matter.
The Minister might prefer to sit in the Chair.
The Minister got upset now when there was a passing reference to the second gerrymander. I refer to the gerrymandering of the areas involved in the county council elections.
Fianna Fáil should not talk about gerrymandering.
A subtle gerrymander was carried out. The order should have been brought before the House where it could have been debated.
The Minister does not like any of his Bills being debated.
Will the Deputy keep to the Bill, please?
Galway County Council consists of a number of electoral areas. The smallest area elects four councillors and the largest nine members. Other areas elect five or seven members. There are various sizes of electoral areas electing various numbers of councillors. Connemara returns four. If following an election a petition was brought before the court and it was decided that three of those people had been elected through some means which the court deemed unlawful, we say that the vacancies thus created should be filled by a new election in that electoral area where more than a majority has been disqualified. The Minister is saying that, where three out of four are so elected, those three places can be filled by co-option. That is not satisfactory. It would lead to a situation where the persons co-opted to fill those three vacancies could come from a place 60 or 80 miles away in the area of Connemara about which I am talking. They would have no knowledge of the problems of the area and might never have visited that area except on holiday. They might know nothing about it.
This is not democracy. It is not local government. It does not give power to the people. It does not give representation on the local councils to the people. It is defranchising these people. It is the same as telling them that in the event of such a situation occurring they are not entitled to vote again.
Apparently this was Fianna Fáil policy in 1941.
Some time ago the Minister said that this had not happened before.
The law to which the Deputy is referring came into existence in 1941.
Either the Minister agrees or disagrees with the point I have made and I have made a valid point.
That is not so.
Therefore the Minister is satisfied that three people, one from Gort, one from Loughrea and one from Ballinasloe could represent the community in the Connemara electoral area which area, as the Minister may not know, consists of a community that is approximately 50 per cent Irish-speaking.
Is that the Deputy's poor opinion of the Galway county councillors?
There is no logic in that question because I would not know who the county councillors might be following an election. Consequently it would be hypothetical on my part to express an opinion in relation to a council that did not exist. All I am saying is what they could do, that we should anticipate loopholes of this kind and that we should legislate to avoid the position that people in such an area as the one to which I am referring might be left without any representation. The most distressing feature of this whole question is that this disenfranchising, this depriving of the people of their representatives, must according to the terms of this Bill occur in the early months of the council. It is more than likely that that is the time when it would occur because petitions would have to be brought in the first place within 28 days of the result of the council election.
There could be a situation in which three strangers to an area could be co-opted to represent an area such as the Connemara electoral area for a period of five years and they would have to be tolerated by the people in that area for that entire period. Apart from the question of the lack of representation for the people in any such area there is also the counter-effect of such a situation, that is, the over-representation of other areas. As a member of a county council I have experience of situations where expenditure of money was brought before a meeting by the manager but where, by the votes of those members present a decision was made as to whether certain moneys would be spent. Therefore, one can understand how an area such as the Connemara electoral area would be left without any support at times when financial matters were being discussed at county council meetings. I would deplore such a situation.
What is amazing about this debate is that the Minister indicates his preparedness to accept that sort of situation and that he asks the House to allow it to continue. I appeal to him to be reasonable and to accept the validity of my argument. I hope he will give us some indication of his intention to make the changes that are necessary to avoid the type of situation I have envisaged.
Perhaps two examples that I can give the Minister may convince him that the case being made by Deputy Molloy is one which——
Not under section 16 because what Deputy Molloy has been talking of bears no relation to section 16.
What the Deputy has been saying is related directly to the section.
I shall give the Minister two examples——
Yes, if the Acting Chairman so allows.
Let us take the Buncrana county council area and the Buncrana urban area. We shall begin with the urban area in respect of which the Minister is legislating in section 16. There are nine seats on the Buncrana Urban Council and if after the June election the validity of the election is queried in court——
That could not happen unless this Bill were passed. It could not have happened since 1961.
Perhaps the Minister would cease interrupting.
We want to make the Bill a better one and this is the place in which to do that. If, say, six of the nine urban councillors in Buncrana should be deemed after being elected to be disqualified, the Minister would order a new election in that area. This is the provision of section 16. The Minister is seeking to legislate in such a way as to provide that in the event of there not being a quorum, in other words if only three members are elected legally and the others are disqualified, there must be a new election.
In the Buncrana county electoral area there are six seats but, say, because of electoral abuse, four members who were elected are deemed to be disqualified, those four seats would be filled not by the people who on the 18th June had done their national and local duty, but by councillors elected in areas as far away as 100 miles—for example, in Bundoran or Killybegs. I am sure that the councillors in those areas would not wish to interpret the decision of the people who elected the four people who had been disqualified. Of course, the electorate in the urban area would be the electorate also of county councillors in the county electoral area. Therefore on the one hand the electors of Buncrana would be given an opportunity of electing urban councillors after the disqualification of a number of members but the people of that town would not be given the opportunity of electing replacements for county councillors.
The whole situation is illogical. It is unreasonable and is not fair. All the Minister has to do is to make provision to cover this very valid point. If this is not done now I do not know when it could be done but, as it is here, it would give rise to grievances, because the situation which is sought to be remedied in section 16 would happen less frequently in local elections than would the situation which we have described could happen in one electoral area and which is unlikely to happen in all of the electoral areas throughout a county.
Outside the House, the Minister is at all times a reasonable man. When he comes in here he undergoes a change of personality and must oppose everything that Fianna Fáil put forward. To adopt an attitude of fairness is the sine qua non of this whole operation. Supposing there are four or five people elected in an electoral area and they are deemed to be ineligibly elected for some reason, the Minister proposes that they be replaced by a system of co-option, I presume, in the same ratio of party representation as happened in the invalid election. Am I right about that?
There is no provision for that in the Bill or any Act.
I presume that that would be the spirit of the Bill.
That is what we do in County Meath.
We do that also in County Cork. But how do we know that that might have been the ratio prevailing if the election had been conducted in the proper fashion? That kind of representation may not have emerged. Suppose Fianna Fáil got two seats, Fine Gael two and Labour got one seat in the invalid election, how can we decide that that would have been the ratio had the election been conducted properly?
If the Minister wants to act fairly, he must consider having another election in that electoral area. I know that this will present difficulty. I can understand the time and the technical difficulties presented for this type of amendment to be put in at this stage. As I said before, it is not alone the Minister who is responsible for legislation passing through the House, but it is the responsibility of every Member. If we pass shoddy or loose legislation, it is not alone a reflection on the Minister but it is also a reflection on all of us for not at least attempting to tighten up and bring in proper legislation.
If the Minister is reasonable, I do not think that he can deny the legitimacy of the case put forward from this side of the House. Co-option is a very handy, easy and simple way of filling a vacancy. Where there are a number of vacancies and they are being filled in the ratio of an invalid election, we are then treading on very dangerous ground.
The Minister is a Member of a Government which preaches local representation, open government and accessibility to public representatives at all times. Yet by this Bill he could be denying to a certain section of the people the right to elect their own members and in the ratio that they so determine.
I do not think there are any political kudos for the Minister and our side to have the type of argument we have been having here all evening. If I were in the Minister's place I would be very amenable to this type of amendment. Unless he wants to be accused afterwards of acting in a biased fashion, he will have to ensure in this section that fair representation occurs. While he may have been a member of a county council—I was also a member of a county council— which acted in the main fairly, and allocated various positions in proportion to party representations, we know of other county councils where this did not happen. It is to preserve that type of democracy that we are asking the Minister seriously to consider the amendment put forward by Deputy Molloy.
I cannot fathom the reason for the Minister's opposition. He is a politician and must realise that elections are always the fairest and the best way of hearing the proper voice and wishes of the people. If we are to have this system of co-option where members can be co-opted so far away from the electoral area concerned, and who have absolutely no interest or ambition to serve the people in that area, we are taking a very serious retrograde step in relation to the democratic set-up here. There is no excuse for the Minister saying that this has not occurred since 1941. There are many things which did not occur since 1941 but that does not mean that they will not occur again. The Minister, therefore, should give serious consideration to our amendment.
My main feeling in this regard is one of fairness, of proper representation, and of the ability of every section and every member of our community to exercise the franchise in a proper manner. If he insists on going ahead with the co-option idea he will be doing a very serious disservice. Perhaps the Minister has good reasons for not doing this. Perhaps he is under pressure from the Government or his own party not to change a line. Perhaps he is of the opinion that anything put forward from this side of the House should not be accepted.
Let me interrupt the Deputy, please. I am not anxious to hold up this Bill. I do not believe the amendment suggested is required. As a matter of fact, I am not quite clear how it could be done but I am prepared to consider this matter and see if I can get an amendment before Report Stage. I do not like to do something which might not be necessary. In a brief discussion I had off the record with Deputy Molloy we cleared more points than we did in the last couple of hours across the floor. I am sure there is a moral in that about Committee Stages. I am very anxious to help if I can. Because of what the Deputy said, I feel he has a genuine fear which I did not appreciate. I said that I could not see it happening but he said it could happen in his county.
As far as the exact wording is concerned, it will be very difficult to ensure that it does exactly what Deputy Molloy and his colleagues feel should be done. Perhaps Deputy Molloy would be prepared to say what amendment he wants because if we put down an amendment now and on Report Stage he says that that is not what he wants, he can appreciate the difficulty there would be. I would like to meet him on this point.
The Minister accepts now that our motives in putting forward these arguments are genuine. When I left the House for a few minutes I deposited an amendment to this Bill adding a new section. The new section would provide for the arguments I have been making. I have left the wording of it in the Dáil Bills Office.
The Minister has asked us to give him time to consider how he can put down an amendment and he suggested it might not be as simple as it looks. I should like to cite a precedent to him on a Bill which I had before the House when I was Minister for Local Government. During the course of the debate a point was made by a Fine Gael Deputy and I accepted in my own mind that he had a valid argument and that my Bill as it stood did not meet the point he was making. I was prepared to withdraw from the House to enable consideration to be given to an amendment to meet the point made.
The Report Stage will follow and it can be dealt with then.
I have just given a precedent involving a Minister's generosity——
I accepted many arguments on the Motorways Bill from Deputy Molloy.
If I had a few minutes with Deputy Callanan he would agree with me because he was a member of the same council in which we had this difficulty. Would the Minister be prepared to examine the amendment and would he accept this——
If I agree with it.
Acting Chairman
It would be for Report Stage.
On Report Stage a Deputy is restricted from making the same argument as fully as on Committee Stage. Could it be considered on Committee Stage? There are plenty of precedents for amendments being accepted at short notice. Last week a ministerial amendment was circulated only shortly before——
I have no objection. If the amendment is suitable, then it can be fitted in and it does not matter whether it is on Committee or Report Stage.
On Report Stage a Deputy is not permitted the same range of argument. As well, the Minister in the meantime might decide it was not possible to do this and he might not bring forward any amendment or an amendment that might not do what we are looking for.
That is a point.
Report Stage is not a time when a Deputy can argue points.
The Chair might help us here. Could we adjourn consideration of section 16?
Acting Chairman
The Bill can be recommitted on Report Stage in respect of section 16.
Reason prevails.
If the Deputy had publicly stated what he said privately, reason would have prevailed.
Was what he said in order?
Yes.
The Minister should not put too much emphasis on the few words we had. It was really a rehash.
Do not let us start the argument again.
There is just one point of clarification I should like to mention. The section states:
Where a local election is not questioned by a petition within the period of twelve months beginning on the day on which the result is declared, as on and from the expiration of that period the election shall not be questioned on any grounds and the election shall be deemed to be valid for all purposes.
I should like to refer the Minister to section 4 which states:
(1) A petition may be presented by any person who has reached the age of eighteen years and shall be presented by being lodged in the office of the county registrar for the county in which is situate the principal office of the local authority to which the petition relates.
(2) Subject to subsection (3) of this section, a petition shall not be presented save within the twenty-eight days next after the result of the election is declared.
If in section 4 it is specified that such a petition must be made in 28 days, why is a period of 12 months mentioned in section 18?
That is in the case of a bribe.
I accept that but one would imagine that two months would be adequate. If it refers only to a bribe I will accept it.
I raised a point on this section on Second Stage and I invite the Minister to reply to it, if he remembers it. I do not wish to delay the House by repeating the point.
Section 19(2) of the Bill provides that a witness may not be excused from answering on the ground that the answer might tend to incriminate him or on grounds of privilege. This provision simply repeats the provision which was contained in the former law relating to local election petitions. A similar provision is contained in the law relating to parliamentary election petitions. The Referendum Act, 1942, also has a similar provision in relation to referendum petitions.
It is not correct, therefore, to say that we are introducing a new concept into our law. What the section does, in fact, is to repeat a provision which has always been a feature of the law relating to petitions. Neither is it correct to say that it is an old, out-dated provision which has been copied from an enactment passed in the last century.
I asked the Minister to look into and see if it was necessary to include such stringent provisions in this Bill because is seems to be in conflict with what is accepted in ordinary law. Whether it is contained in a previous enactment holds no great sway on this side.
It was in 1942. It should be noted that the section contains a built-in protection for a witness in such a situation. If the court is satisfied that he has answered truly he will be entitled to receive a certificate from the court and his answer cannot then be admitted as evidence against him in any civil or criminal proceedings. The only exception to this is criminal proceedings for perjury in respect of the evidence itself, in other words, if it turns out that he did not, in fact, answer truly.
It should be emphasised that the witness is entitled to this protective certificate as of right. He is not, therefore, in effect being required to incriminate himself.
I had better take it subsection by subsection. Subsection (1) states:
(1) The court shall be entitled of its own volition, at any time during the trial of a petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial, and where the court so directs the costs of bringing the person before the court (including any moneys payable to him as witness's expenses) shall be regarded as part of the costs of the petition.
I am informed this is most unusual in ordinary law.
What the Deputy asked is whether this is a new concept.
What I am now asking is why it is included in this Bill. I am advised its inclusion seems rather harsh and Draconian. In ordinary law this is an unusual provision.
I am told it is very important that the Bill should contain a provision of this kind in order to assist the court in its task of determining the matter at issue in the petition and ascertaining the correct result of the election. It is obviously very important in a democracy that elections should be free from any shadow of doubt or suspicion.
The Deputy would agree that it is right to give the court this assistance particularly when there is no new principle involved. The witness will be fully protected by the certificate of the court. I would not agree at all that is Draconian, or that it is new, or that there is anything unusual about it. If the evidence is given truthfully the certificate issued prevents the witness from being prosecuted. If the witness does not give truthful evidence he can be prosecuted for swearing false evidence and that can happen in any court. There is nothing unusual or wrong about this. We checked with the Attorney General's office and we were informed that it was the correct wording for this.
It would appear from subsection (2) (b) of this section that what a person says at the trial of a petition would not be privileged and that he could be sued in a civil court for slander. I am suggesting to the Minister that that might be deemed to be an undesirable situation.
It is not; it is the direct opposite. The subsection states:
An answer by a witness who has received such a certificate to a question put at the trial of a petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be in any proceeding, civil or criminal, admissible in evidence against him.
That in fact means the direct opposite to what Deputy Molloy has said. The only time it can be used against him is if he is being tried for perjury as a result of the evidence he has given. In any other case the evidence which he gave cannot be used against him.
It cannot be used in a slander case.
No, he gets a certificate for that purpose.
A person cannot refuse to give evidence because it might incriminate him which means that he must give the evidence but, having obtained a certificate and not being guilty of perjury, a person who gives such evidence cannot be prosecuted even if the evidence incriminated him.
He cannot.
This is peculiar.
He cannot be prosecuted unless the answers he gives are incorrect.
I should like the Minister to check on that matter. It seems remarkable that we go out of our way to ensure the fullest possible evidence but, having given that evidence a person could, subsequently, be prosecuted even though his own evidence cannot be used against him. It appears that he can be challenged in another court. The Minister stated that once a witness obtains a certificate, irrespective of how guilty he is, he cannot be prosecuted and that sounds rather peculiar to me.
That it not quite correct. The witness either gives true or false evidence. If he gives true evidence he can be prosecuted but the evidence he has given cannot be used against him because he has a certificate to certify that his evidence was accepted as true evidence. That is as it should be. If a witness gives false evidence that is his funeral.
The Minister stated that if a witness obtains a certificate he cannot be sued.
It should be noted that the section has a built in protection for a witness in such a situation. If the court is satisfied that he has answered truthfully he will be entitled to receive a certificate from the court and his answer cannot be admitted as evidence against him in any civil or criminal proceedings. The section assumes that he is open to criminal or civil proceedings but the evidence he gives cannot be used against him and he has a certificate to that effect. It does not give him complete immunity but his evidence will not be acceptable in the court because he has obtained this certificate. The witness is entitled to this protection as a right and he is, therefore, not being required to incriminate himself.
The query is whether a witness, by giving evidence which he was required to give, would incriminate himself and my reply is, no. He cannot incriminate himself. If he tells the truth he obtains a certificate saying that the evidence which he gave cannot be used but if he tells an untruth he can be prosecuted for perjury.
The court has to decide whether the evidence given is truthful and the court will not issue a certificate if it is not satisfied that the evidence is truthful. That is the opinion of the court and, no human being being perfect, the court can only give the best decision of which they are capable.
If evidence which the court was prepared to accept as truthful from a witness who was obliged to appear before this petition court had slanderous implications for an individual in the community who was so irate at the statements made that he subsequently decided to bring a civil case against the petitioner for slander, how would he succeed or how would the case get off the ground if the evidence given at the petition court was deemed privileged and truthful?
That is something on which I would not like to comment because what I would be asked to do if I were to decide on that matter is whether or not the court was competent to decide if the evidence given was true or false. We must accept that the evidence is either true or false. If it is false I imagine that in every case proceedings will be taken against the person for perjury. There can be no protection for him against that. If the evidence is accepted as true, and it does annoy people as it almost certainly would it is possible that people would attempt to sue a witness for slander or defamation of character. If his evidence was accepted by the court as being true he would receive a certificate to cover him. We must accept that the court is competent in each case in which they say the evidence is true or false before the certificate is issued.
It is possible that somebody, even though he did not tell the truth, would be protected but this is highly unlikely. I do not think there is anything we can do at this stage and I feel that adequate precaution is being taken.
We would all subscribe to the principle that all citizens are equal before the law and we are guaranteed that under our constitution. However, I question how a citizen could be deemed to be treated equally by the law if a witness in a petition court uttered slanderous remarks against him and the court subsequently deemed these remarks to be true by issuing a certificate of truth but he has no recourse in law against such slanderous statements if this person is protected by this privileged certificate. We are creating a situation exactly similar to that in this House in which any statements uttered by a Dáil Deputy in the course of debates here are under privilege. I was not aware that such a privilege was extended, in the case of slander, to anybody else outside the House. I am referring only to slander.
What the Deputy is saying is that the court would have issued a certificate to a person who had sworn falsely. This is the only way it would happen, if they had been so convincing that what they said was accepted. It is a thousand to one against that sort of situation arising. I would not like to say it could never arise, but I believe the protection given is necessary and adequate. If this protection were not given, it would, perhaps, be unfair to ask a person to go before the court to give evidence, and then the whole question of having such a court at all would break down. We all want to ensure that the election is run fairly and that undesirable practices are not allowed. The only way to prevent it is by having a court in which the matter can be investigated. We must give protection to the witness who swears truly; if he swears falsely, that is his funeral.
Most people would be upset if a remark had been made which involved some slander on their character, but a person would be entitled to be doubly upset if not alone a remark was made involving his character but that the person who made it was subsequently given a certificate that he had, in fact, spoken the truth. It seems to place the person in an invidious position vis-à-vis the law and his right to redeem his character in the eyes of the community. It is a tricky point and one about which I would have serious reservations. The Minister is saying we should accept this action as it is and accept that while what we suggest could happen, there is no way out of it. I do not know whether that is good law. We are obliged to pass legislation which could have an effect on a man's character and have repercussions for his family for his lifetime and for generations. Such a thing could have a greater effect on a person's whole life than stealing £1,000 from him; that he could get over, but slander on a person's character is a most serious thing in many people's minds. I am not happy about this, and I just record my displeasure at the wording of it. I think it is undesirable as it is.
I share Deputy Molloy's view on this. He has dealt with the civil aspect of it, where a third party is deprived of a right. The Bill also visualises depriving the State of its right, in that a witness who is brought before the court turns out to be guilty of a number of electoral offences. Maybe this provision is good from the point of view of getting at the truth in relation to a petition, but when a person makes a clean breast of everything and then gets the certificate, it is impossible for the State to use any of the evidence, however incriminating, he has given to the court.
The Minister says that can be got over by bringing in outside witnesses afterwards to testify that this person was involved in electoral offences and that he can be criminally charged for doing wrong. No matter what evidence is presented by the State against this man, a good counsel acting on his behalf can always raise the objection: "This man admitted in the petition court that he did this and he was guaranteed under legislation that this could not be used as evidence against him." This provision is too much of an inbuilt protection whereby the Minister, in a civil case is giving away the right of a third party individually and, in a criminal case, giving away the rights of the State and the Attorney General on behalf of the people.
The alternative to this is that the person is not brought in to give evidence and the whole sorry mess cannot be cleared up at all, because the person, if brought in, would incriminate himself. Unless they are given a guarantee of immunity on their own evidence, they will not come forward. However, that does not stop them from being prosecuted, but it does mean that the evidence they give in this particular court cannot be used against them. Either we have this court to deal with witnesses in this way or we have no court. Maybe the provision is not perfect. Legislation like this is very difficult, but we are assured by the Attorney General's office that the phraseology is correct and that there is nothing wrong in law; as a matter of fact, that it is the right procedure to adopt. As I said today, I am not a legal man. Therefore, I cannot say what the particular points of this are, but Deputy Molloy suggested the last day we should ask the Attorney General's office, and they said: "Yes, this is the correct procedure" and I think we had better stand by that.
My request the last day dealt with the power to direct that a person should be brought before the court and obliged to give evidence. The other point was in regard to subsection (2): "...on the ground that the answer thereto may incriminate or tend to incriminate him or on grounds of privilege." What I was getting at was this obligation to give evidence. I accept that the Minister does not seem to be able to go any further in explaining the situation of a person by whom a civil case for slander could be brought, because he feels he has been slandered by this privileged evidence. In the circumstances, I would ask the Minister to get some opinion from the Attorney General's office on the question of slander.
We have, in fact, asked him and the general advice which I have just mentioned is that this is the correct phraesology. As far as the question of slander is concerned, there is nothing to prevent the action being taken by somebody outside. But the evidence which the witness gives at this court cannot be used for the purpose of proving anything outside; in other words, it is not evidence.
It is hard luck, then, on the man who is slandered.
It appears to be so but I would hate to try to rule on that.
First of all, subsection (1) talks about the costs awarded against a returning officer being paid by the local authority concerned. Subsection (2) says that where the court is satisfied that the returning officer— on a sort of personal basis—has been grossly negligent, the court may make an order against him. Subsection (3) refers to orders being made—I presume under subsection (2)—and costs being awarded against an officer which are paid out of moneys provided by the local authority and so on. If the order is made for gross negligence by the returning officer under subsection (2), why should the local authority pay it at all? Subsection (3) provides that if the order is made against the returning officer, arising from his own personal incapacity, he is supposed to pay the costs himself. If he is supposed to pay the costs himself, why should subsection (3) arise? Why should the local authority pay it on his behalf?
Actually, the reason is quite simple. On the face of it I thought it to be the same as Deputy Lalor. But the person may at an early stage have used local authority money to pay certain funds and this is what is recoverable from him in addition to whatever expenses arise.
During the course of the case?
That is correct, yes.
If under this section, a case is referred for the opinion of the Supreme Court on a point of law, why provide, under subsection (3), that the costs be part of the costs incurred in relation to the decision if the point which was raised was not relevant to the conduct of the person against whom the order for the costs was eventually made?
This would be all part of the trial. If somebody wants to raise an issue that has to be decided, I think it only fair that he be responsible for the costs if he is making a point which is not considered to be or does not turn out to be what he says because it would be part of the costs of the trial. It is as simple as that.
Whoever the court decides is responsible for the costs is another question. The court, of its own volition, may decide to refer something to the Supreme Court for clarification on a point of law. If that clarification is such as can be shown subsequently that it was unnecessary to refer it to the Supreme Court and their decision proves that it was irrelevant as far as the person who is eventually charged with the costs was concerned, why should the cost of that referral fall on a person who, in the first instance, was not responsible for its referal to the Supreme Court and, in respect of whom the Supreme Court deemed his conduct was in no way involved in the point so referred?
The court will have the right to decide on the costs themselves. I understand that what is being said is that this will be considered part of the costs of the court because this sort of thing must be paid for. It will be part of the entire case and the court will decide on whoever pays the costs, whether it be the State, the returning officer or the petitioner.
If it is the petitioner and if the point that the court raised——
If the court raises the point, I do not think they could then put the costs against the petitioner. That would be a rather peculiar way of dealing with it. But the court will decide and, if we agree that the court is ruling fairly, surely this would be a point which would have to be taken into account. The only reason it is inserted here is to ensure that there will not be a separate way of dealing with these sorts of costs. The costs of the case, whether at the original petition court or at the High Court, will be the one responsibility. The court will decide what way the costs will be paid and who will pay them.
Is the Minister suggesting that the court will decide to split up the costs?
Oh, yes.
If the petitioner is charged with all of the costs, the point referred to the Supreme Court did not involve the petitioner and nothing he had done was responsible for the matter being raised, does it not seem unfair then that he be asked to pay the costs?
He is not being asked. The court has discretion to decide these things. We might as well start early on and say: the court shall decide that this amount shall be paid by one side and that amount shall be paid by the other. The whole lot has been put to the court and they must make the decision as to how the costs will be paid. I think it is fair that this reference to the High Court should be included also. It does not interfere with the allocation of costs because that is dealt with already.
Could the Minister help me by saying which section deals with the power of the court to divide the costs amongst a number of people.
Subsection (1) of section 20 says:
All costs, other than the costs of counting votes afresh under section 8 of this Act, of and incidental to a petition shall be in the discretion of the court which shall have power to order such costs or any part of such costs of any party to the petition to be paid by any other such party, and, where the costs or any part of the costs of any such party are so ordered to be paid by the petitioner, the court shall, where necessary, make provisions for the payment of those costs...
This is merely saying: in addition to the ordinary costs of the court, if there is a case put to the High Court, it is included also in the costs.
If that is the position, I will accept the section.
May I ask the Minister why he thought it necessary to refer specifically to a person who is in holy orders or is a minister of any religious denomination? Is this the constitutional thing where all citizens——
They have been excluded up to now for some extraordinary reason.
This is merely constitutional?
We believe it is unconstitutional to debar people in holy orders from membership of local authorities. I think we would all agree that they are entitled to membership if they so wish. I do not think many of them would be interested.
I move amendment No. 1:
Before subsection (2) to insert a new subsection as follows:—
(2) An order made under this section shall not exclude an employee who is a member of the administrative staff from the operation of section 21 (1) of the Local Government Act, 1955.
In his introductory speech and subsequently in a document which the Minister circulated there were proposed orders under section 24 of this Bill. In other words, he was giving us an indication of the classes of employees of local authorities, of vocational education committees or committees of agriculture who would be allowed to stand for local elections in the future and also specifying those who would not be so allowed. The Minister proposes that all administrative staff down to but not including the rank of clerical officer and all town clerks shall be excluded. In excluding certain members of the administrative staff he allows clerical officers and anybody below that grade who is a member of the administrative staff to stand for election. My amendment would prohibit the inclusion of clerical officers. The Minister is proposing that rate collectors will not be allowed to stand for local elections. Neither will rent collectors, rate inspectors, rent inspectors, housing welfare officers, means investigation officers and social workers. I should like to make a comparison between the clerical officer and the rate collector. The Minister proposed to allow a clerical officer to stand for election and to prohibit a rate collector. I have some difficulty in understanding the logic of the Minister's thinking here. How can one argue that a clerical officer is entitled to stand while at the same time a rate collector is not? On the other hand, if one argues that a rate collector is not entitled to stand why then allow a clerical officer?
A clerical officer would find himself in a position where there was a real conflict of interests if he were to be elected to a local authority—a local authority, mark you, of which he is an employee. He would, if elected, find himself having to serve two masters. He would have to serve the electorate who elected him to the council to represent their best interests. As The Farmers' Journal says about being fearlessly on the side of the farmers, any elected councillor is expected to be fearlessly on the side of the electorate. The electorate would be one of his masters. The other one would be the county manager and his superior officers in the local authority to whom he would have a duty as an employee. We in the Fianna Fáil Party have given some thought to this since the Minister circulated these documents. We would ask him to reconsider his decision in relation to clerical officers. We think this may not be a good thing for local government or for local democracy. A clerical officer elected to a council would immediately find that he was not an independent person. He would be greatly inhibited in all his actions. His superior officer, the county manager, would be sitting beside the chairman at the county council meetings and he would be in a very awkward position in pressing the manager to do something when he owed an allegiance to that manager as an employee. Though there may be some enthusiastic clerical officers who would stand for election I do not imagine there would be very many. If there was one foolish enough to try it and to get elected he would be placing himself in an invidious position. We, as a Parliament, should try to ensure when passing legislation that such invidious situations are not allowed to arise and that such conflicts of interest are not tolerated.
The Minister has come before the House with a long list of grades. He is excluding all professional staff, all library staff down to and including the level of assistant librarian, certain officers of fire brigades—we are in some doubt as to what exactly that means——
Chief officer, first officer, second officer, third officer. The people who would be administering it would all be excluded.
I did not catch all that but I take it we could agree to them anyway. Clerks of works are excluded, inspectors, including inspectors of weights and measures, assistant inspectors and analogous grades. If they are analogous to those grades we would agree with their exclusion.
A rate collector is not to be allowed to stand. The Minister has said that a clerical officer should be allowed to stand. We think there is a definite conflict here. A clerical officer works inside the county council building having daily access to files and in constant touch with other members of the council staff at various levels. He is in a position of authority and privilege and we feel he should be above politics and should not be invited to be biased in his dealings with the public. If he is to be an elected councillor then he would be less than human if he were not to take advantage of the information available to him as an officer with access to files in the county council building. The community having dealings with the council would within a short time come to realise that it was a waste of time approaching any of the elected members other than the member who worked in the county council office. This person's work load would reach such proportions that it would interfere with his work in the county council. How would he divide his day between people who called to the office to see him as a councillor and the people who called to the office to see him as a clerical officer? One could go on arguing this but I would ask the Minister to agree to the amendment and exclude all administrative staff. We accept that what the Minister has done in respect of the other levels of employee is good but we think it is wrong in this case.
The Minister has excluded a rate collector. He does not have access to files. He does not have daily contact within the county council office. I am now referring, of course, to outside rate collectors. In some authorities rate collection is done by an officer of the council and certainly I would agree with their exclusion, but in the case of the traditional outdoor rate collector I cannot see the justification for excluding him if the clerical officer is to be included. He would not have the conflict of interest to the same extent as a clerical officer would.
The Minister used the argument the last day that a rate collector is involved in the compilation of the register of electors and for that reason it would be improper to allow him to stand for the local elections. That is not a very solid argument because the rate collector can stand for the Dáil which is a much more important elected office. It carries much greater responsibilities. I cannot see how the Minister can argue that a rate collector, because he is involved in the compilation of the register of electors, should not be allowed to stand for the council but that he should and is allowed stand for the Dáil when it is, to all intents and purposes, the same register that is used for both elections.
I feel a rate collector should be allowed to stand for election to a council and the arguments against allowing clerical officers to stand are very strong. I appeal to the Minister to amend his proposed order allowing clerical officers to stand and prohibiting rate collectors from standing.
Deputy Molloy's amendment states:
(2) An order made under this section shall not exclude an employee who is a member of the administrative staff from the operation of section 21 (1) of the Local Government Act, 1955.
That is too general and too restrictive. It is too general in that one interpretation could include a lot of people and go much further than I think Deputy Molloy would intend. It is too restrictive in that it would not apply to professional staff such as engineers, town planners and law agents. One must be specific in this.
All I wanted to do is to exclude clerical officers.
I would not be prepared to accept that. We talk about workers' democracy. The only reason I have decided not to include more people is that I do not want to include people who can take decisions. This is one of the things that caused a certain amount of trouble. The Deputy is probably aware that at least one member of his own party, who is anxious to be a candidate, has said that he is prepared to take certain steps in order to do so. I would not like to restrict him from taking those steps in order to qualify.
I do not know who he is.
The Deputy might not know who he is. I believe that clerical officers who have not the same responsibilities should be included. They do not take decisions. Therefore, they are entitled in my opinion to stand for election and, if elected, to take their seats. My only regret is that it has not been possible to include people further up the ladder. It is right that those people should be entitled to go into a council chamber and argue their points. While there may not be many of them, at the same time if they go in there the county manager, or whoever is in control of them, is not God. Those clerical officers are entitled to look on the face of those who employ them. The question of staff will not arise because it is not a matter which can be discussed at council level. The ordinary day to day matters which clerical officers deal with will not impinge on their duties as public representatives if they get elected.
As far as rate collectors are concerned there are good reasons why I would like to say they should not be appointed. One concerns the compilation of the register of electors. Deputy Molloy says they can stand for the Dáil. That is so but the position is that rate collectors draw up the register of electors and in doing that they can, if they so desire, leave people on and off. While the majority do not do that, I had the experience—I am quite sure Deputy Molloy might have a similar experience if he goes through the areas—of finding a group of people, who are known supporters of mine, not on the register at the last election. I think there were 11 of them altogether. Those people were living in the area all their lives.
The rate collector could have been a candidate for the Dáil. He is not excluded.
He could have been but he was not. At local level this could be very much more important because of the number of votes involved. The rate collector is in touch with the local authorities and with the local people. He will be deciding whether or not rates can be demanded now or extended over a period. Many rate collectors have to do certain things, particularly those working on poundage. The same applies to rent collectors. It is not fair to anybody to allow people who have the right to bestow such a privilege on the public to be members of a local authority. Rate collectors are in all parties, as, indeed, are clerical officers, and it is right to leave rate collectors and rent collectors out and put clerical officers in. It is at least putting the clerical grade one step on the way to a workers' democracy, the right of a worker to sit on the board that employs him. We are all in favour of it, Fianna Fáil as well as the National Coalition, and I think this small step should not be turned down.
One might accept the Minister's argument if he was prepared to include rate collectors but one could not reject out of hand the weakness in the Minister's argument against the inclusion of rate collectors. I am greatly surprised at the trifling reasons the Minister has given for his proposal to debar them from standing for local authorities considering the arguments he has used in favour of allowing clerical officers.
Clerical officers do not take decisions but rate collectors do. That is a valid argument.
That is not a very valid argument. The Minister is very well aware of the position a clerical officer is in in a county council and the access that person has to information.
What type of information?
If a clerical officer is operating a housing section, for instance, he has day to day information about what is happening in that office. In most cases he will be dealing with the documents.
Can he influence any decision which would favour any member of the public? Can a clerical officer take a decision which would favour the public?
The Minister knows that situations create circumstances and that in the circumstances it would be quite possible for such an officer to be in such a position of influence, particularly when one is now encouraging them to participate actively in political matters in the authority in which they are working. The Minister is trying to adumbrate an extraordinary principle.
We are all in favour of workers' democracy and local democracy and we are anxious to ensure that as many persons as are reasonably possible should be allowed to offer themselves for election and to place the minimum of restrictions on such people. It is stretching it a bit far to expect that a person working in a county council office as a clerical officer could actually go forward for election to that council. I thought the Minister would have some strong argument against allowing a rate collector when he was prepared to include a clerical officer.
We are all well acquainted with rate collectors and I do not think any honest appraisal of the involvement of a rate collector in council affairs and the involvement of a clerical officer in council affairs could result in a conclusion that a rate collector was in a more important or more ifluential position than a clerical officer. I do not see how anyone could come to that conclusion. Rate collectors spend most of their time out of doors. They operate from their own homes. Their visits to the council offices are irregular.
But it is not in the council offices they would be able to work influence. Surely the Deputy is not that native.
The Minister is confining it solely to the fact that they draw up the register.
I gave a second reason, quite a valid reason.
The collection of rates. The Minister is well aware that a rate collector has no power to waive rates. That is the responsibility of the council. He has only one obligation and that is to collect whatever demand is handed to him. That is his only obligation.
The Deputy is not that innocent.
If the Minister is questioning my innocence I, in turn, would seriously question his innocence in the arguments he made in favour of the clerical officer. I do not know why the Minister should expect us to be so naive as to accept these arguments. It is obvious the clerical officer is in a very real position of influence. There could be a very real conflict of interests and his independence would be greatly restricted. He would be seriously inhibited in all his activities because of his dual allegiance. He would be asked to serve two masters and, in the circumstances, because of the political implications, it is a bit much to expect us to accept this. The Minister is excluding the rate collector and he says the exclusion is only because the rate collector compiles the register. I do not see how the Minister can hold that against him when a rate collector can stand for the Dáil. If he can stand for the Dáil, why can he not stand for the county council? He compiles the register for both elections and the same register is used for both elections. If he can stand for the one, I do not see why he should not be allowed to stand for the other.
If he is the rate collector for the area in which he is standing the number of votes there would not put him into the Dáil but they could put him into the county council. I grant you he may not be the most popular man in the area, but that is beside the point.
The Minister seems to object to the principle. The same argument would apply if he were a collector in an area which was in his Dáil constituency. That would probably be the area in which he was best known and it would have a serious influence on whether or not he would be elected.
But it would be a relatively small vote.
We have a rate collector in the Labour Party.
Certainly, but it is not because he is a rate collector.
There is no criticism from this side because he is a rate collector.
You have teachers elected to the Dáil and you had teachers who could not stand for the local authority, but they could stand for the Dáil.
All teachers can stand for local authorities.
Some of them can. All of them will be able to after this.
We agree vocational teachers should be allowed to stand. There should be no inequality there. We are surprised that the Minister deems it necessary to exclude rate collectors and to include clerical officers. The Minister states that the wording of my amendment may be too broad and, because of that, might include other categories which we might not wish to include. He may be right in that. All I am anxious to include is clerical officers. The amendment could read "all administrative staff down to and including the rank of clerical officer": It would be a simple matter to change the wording. It could be done by agreement. The Minister fully understands the thinking behind this and the only purpose of the amendment is to exclude persons employed in administrative capacity. I would ask the Minister very seriously to reconsider his stand on this. We feel rather strongly about it.
I am not prepared to change this. I already explained the position fully. Clerical officers do not take decisions. They work under supervision. We are reaching a stage at which we shall have to give a great deal more say to workers in the running of affairs generally. We talk about this and when I take one tiny step forward by including the lowest clerical grade—I particularly wanted to include a clerical grade—I am told that clerical officers practically run county councils; it is not the county manager who does it. That is the argument. Deputy Molloy did not use those words exactly, but he certainly suggested that clerical officers take decisions.
They influence decisions.
We are not half so naive as the Minister thinks we are. We have our own practical experience.
That may be so, but my experience is that clerical officers are people who are not in a position to either take decisions or influence decisions. There are people who are paid to take decisions and it is they who take them. I believe clerical officers should be included and I am including them. As far as rate collectors are concerned, rate collectors are entitled to stand for the Dáil, and so are rent collectors, but no one would suggest that the area in which they operate is big enough to get them elected to Dáil Éireann, but it could get them elected to a local authority and, because they have to deal with the public in a certain way, I believe it would be wrong to give them the right to stand for local elections. This is a question of representation and I have been approached— I will be quite honest about it—by representatives of the three parties who asked why not include rate collectors, rent collectors and a whole lot of other people. These people are collecting money from the public.
So are subpostmasters collecting money from the public.
But not in the same way. They merely give out stamps or postal orders when they get the money across the counter. They are not in a position to say: "If you have not got the money now, I will come back in a week's or a month's time." The rate collector can do that. I should hate to put him in that position. I do not believe either rent collectors or rate collectors should be in. I do not believe home assistance officers should be in. People who are in contact with the public——
Clerical officers are.
They are the lowest clerical grade in the local authority.
They are not the lowest clerical grade.
They are the lowest clerical grade.
Clerical assistants and clerk typists. Everyone is wrong except the Minister. I suppose he thinks clerical assistants are not a clerical grade.
The Deputy should have a look at the list. May be in Donegal they have another name for them. A clerical officer is someone who works under supervision.
We know that. The Minister need not spell it out.
So also does the assistant secretary of a Department work under supervision.
But he can take a certain amount of responsibility to do certain things. A clerical officer can address an envelope and insert a document in it or, perhaps, type a letter. Clerical officers do not influence or take decisions.
Neither does a rate collector.
We are either in favour of giving representation to workers on local authorities or we are not. If we are not, then let us come out and say so.
That is not the issue.
It is an issue here. A clerical officer is the only grade of clerical worker who can stand for a local election.
A rate collector is a clerical officer.
A rate collector is not a clerical officer. He goes around from house to house in a certain area. I have two reasons for not including rate collectors. First, they are the people who draw up the register. They are responsible for putting people on or off the register—maybe they do that in error. My second reason is that they can say to people that they do not have to produce substantial amounts of money for a certain time. It would be wrong to put temptation their way. Perhaps some of them would not be bothered with it but if votes were involved they might decide to take a certain course. Therefore I decided to leave out rate and rent collectors and I think I took the right course.
The Minister is somewhat confused about the real meaning of industrial democracy. He tries to confuse the situation of allowing employees of local authorities to stand for council election with proposals to grant workers places on the boards of their factories——
The Deputy should spell it out for me. I have been only 26 years at this work.
There are two separate principles involved. The Minister is taking a small step with regard to clerical officers but he tries to indicate that if he had his way he would allow all the staff to stand for election——
Not all the staff, but I would go higher.
This could be the start of the rot so far as local government is concerned because people can be put off standing for local elections. They will say that it should be left to the staff, that they should be the councillors who will talk with the county manager. What is the point of a person putting himself forward as a candidate at an election to represent his area if the staff in the council, to whom he will be making representations on behalf of the people, will be the people sitting beside him on the council in exactly the same position as far as being elected is concerned but in a different position so far as their access to files and information is concerned? Their standing with the staff would be on a different level than that of an ordinary councillor or a member of the public. The Minister is introducing a completely new principle which will be to the detriment of local government. It will discourage good citizens of the community who are prepared to make the sacrifice of going forward on to the councils in a voluntary capacity where they will not be paid but where they are prepared to give their free time in the service of the community. This service is given on an unpaid, voluntary basis and it is one of the most admirable services in the country. The Minister is breaking away from that principle, and in the long run it will be to the detriment of local government and local democracy.
The Minister should be consistent. If he goes down to a certain grade, he should not start picking and choosing after that. The clerical officer in a county council, which deals with a variety of services too numerous to mention, is where the action is. He knows what is happening, he has access to information and files passing through the various offices. While he is not the person who makes a recommendation to the county manager that Mr. X should be given a housing grant or loan, he is familiar with the matter. If he is elected to the county council he will have certain information even before a decision is taken. A county councillor will write to the county manager or county secretary on behalf of an individual but the clerical officer, if he wishes, may notify the individual concerned of the decision recommended to the county manager.
If he did that kind of thing how long would he stay in his job?
How can the Minister prove it?
I am sick and tired of listening to allegations against county councillors and county officials. According to Deputies opposite, there is not a single trustworthy person on local authorities or on the staffs.
It is the duty of a county councillor to find out the facts and to make recommendations. He must go to the office and discuss it with officials. The person at the office counter who will discuss a routine inquiry may be a clerical assistant, a clerk-typist or a clerical officer. More often than not it is not the principal officer or the staff officer who deals with the inquiries. There is nothing wrong in a councillor getting information on the progress of a particular case but behind the counter there may be a person who has been approached on the same case. Why should he not give the information if the man outside is trying to get as much information as he can? Why should the man inside the counter not be at liberty to give information? Is the Minister going to elect councillors who will be hamstrung because they are officials of the council?
I do not elect them. The electorate do that.
We should not hamstring them by any legislation passed in this House. There is as good a case to be made on behalf of allowing a rate collector to stand for election. The Minister has said rate collectors are not popular, that they would not have much chance of getting elected.
I did not say that. I said that normally rate collectors might not be very popular. I did not say they would not stand a chance of being elected.
Rate collectors were popular enough to become Members of this House. In the Minister's constituency there were rate collectors who got a considerable number of votes, even in areas where they collected rates. If I were a rate collector and a county councillor, when compiling the register I would do my very best to ensure that it was perfect, that there could not be any allegations made against me. It would be an encouragement to the rate collector to ensure he was above reproach.
Allegations are made against rate collectors that they left out names here and there. This happens. With the best will in the world a rate collector or anybody else can leave names off the register. The rate collector is not the only person who is charged with the responsibility of ensuring that the register is complete and accurate. The Garda have the same job.
I will not let them stand either. Gardaí cannot stand.
Not for that reason. Not because they have something to do with the register. A subpostmaster can stand.
What has he to do with the register?
He has to display the register.
What has he to do with compiling it? He simply hangs it up in the office.
The Minister asked a question because he thought he had nothing to do with the register.
He hangs it up in the office and he cannot write anybody off it.
There are forms available——
If a name is not on the register he can send in a form. I know he can write on an ordinary piece of paper but there is a form which you can get in the post office and send it off to the county manager.
So what?
That is another function.
He can write on a piece of paper, as Deputy Briscoe says.
Most people do not know about it.
What is the thinking behind the exclusion of a rent collector?
He collects cash from people who would be voting at the election. So that there would be no question——
A clerical officer in a motor taxation office takes cash.
He will not be taking cash from many people in the area in which he is standing as a councillor.
He will.
Even if he did, he would do it under supervision.
The rate collector is given a chit to collect the rates. He goes out and says: "There is a demand note. You can pay me or you can send it in by post. You can pay me by cheque..."
Or you can wait a month.
Or six months.
The Minister must be very innocent. If a rate collector returns a certain proportion of the rates before certain dates in the collection year, he gets a bonus. Can you picture a rate collector saying to people: "Because I am a county councillor I will allow you a month to pay your rates." He may do that in the case of one person, and does. I know that. He will not make a practice of it because it hits him where it counts, in the pocket. If there are soft rate collectors in County Meath that is another matter.
The ratepayers are good payees in County Meath.
There are no soft rate collectors.
None of the arguments which the Minister has put up holds water. The rent collector who collects weekly rents is responsible for taking the money and lodging it. What difference is there between him and a motor taxation clerical officer who does the same thing with even larger sums of money? The sums of money involved in motor taxation are very much larger than the weekly amount collected and lodged by the rent collector. The Minister has also excluded home assistance officers. They do not handle money and they do not handle the register, so why are they excluded?
Deputy Cunningham feels that home assistance officers should be allowed to stand for local authorities?
If the Minister draws a line all the people under that line should be allowed to stand. The line is either right or wrong.
Why should I draw a line if there is somebody under that line I consider to be wrong?
The Minister has said he will have to raise that line.
No. I said I would like to raise it in certain cases, not the line but the category. I have not done so. I have dealt only with a certain group and excluded certain people. Let us hear more about home assistance officers from Deputy Cunningham. He wants them to be allowed to stand. I would be interested to hear his argument as to why home assistance officers should be allowed to stand.
We could tell you a lot about a couple of home assistance officers, especially in the Kerry area.
What did Deputy Molloy say?
I said we could tell you a lot.
You said a little more than that. I believe that if you want to say something you should stand up and say it.
The Minister has been complaining all evening that he is standing up too often.
The Minister knows what I am talking about.
A supervising road ganger recommends people for employment. He does a number of jobs which could be open to abuse. We cannot exclude people because they are liable to do something which is an abuse of their power. The Minister is very wrong in saying that clerical officers are all right and rent collectors and rate collectors are not.
Before anybody else speaks I would again appeal to Deputy Molloy. If we are to get through this we would want to make some progress. As of now the position is that apparently the Opposition feel that certain people should be included and Deputy Molloy has an amendment down. I do not agree and I do not intend to accept the amendment. We could talk until 12 o'clock tonight, if we had time, and we would not be getting any further. This is my information and the House can accept it or not. The Bill must be reprinted tonight for the Seanad to have it at 10.30 tomorrow morning. The deadline for the Bills Office is 8 o'clock for printing purposes and even that will be touch and go. Would it be possible now to take the section to which Deputy Molloy put down an earlier amendment and put it in so that the Bill could be reprinted?
Which amendment?
The amendment to section 16.
Go back to section 16? What does the Minister want to do?
Put it in now. If the Bill is to be reprinted we will at least have that done.
I understood that the Minister was to bring forward an amendment.
I am prepared to accept Deputy Molloy's amendment.
Do you accept that it covers the situation adequately?
In the short time available, and having regard to the late hour, it has not been possible to consider the amendment fully and in detail. It has not been possible to consult the parliamentary draftsman or the legal advisers on the amendment but, in view of the necessity to have the Bill passed by the House tonight if possible, I will accept the amendment and I will not raise any objection to it. I will let it go in as it is. I appeal again to Deputy Molloy to use his good sense and unless there is some issue on which he feels the Bill should be held up, to give us a chance to have the Bill reprinted.
Is the Minister suggesting that we should go back to section 16 now?
If that is permissible.
To deal with the amendment and come back to section 24?
That is right.
I cannot see how this will make much difference to the printing.
Could this not be done on Report Stage?
This affects the printing for the Seanad?
Yes.
On that basis I agree, provided we come back to section 24.
It would be more appropriate if we could have this matter dealt with on Report Stage.
That would be the normal way to deal with it.
Section 16 was not reported.
We are going on to the budget at 7.30.
I do not think the Chair is aware of what happened in his absence.
Unless we can get this through we will be in extreme difficulty. I know the Opposition are as anxious as we are to get this Bill through. Whatever we are going to do with it, let us do it.
Surely there is no possibility of this Bill being reprinted unless we reach Report Stage.
Otherwise I do not know how we will have it for the Seanad.
This cannot be done.
I am prepared to go back to section 16. It is irrelevant to me whether we take section 16 now or section 24. If we have not completed section 24 I do not see how the Minister can proceed with the printing of the Bill.
I came in especially to speak on section 24. I have no intention of unnecessarily holding up the House. I was not aware of any urgency. The Minister's suggestion is so ridiculous that I think every Member should be on record as pointing out the fallacy of it.
I do not want to hold up the House but may I repeat for Deputy Brennan, who was not here, that the Bill was first introduced in 1942 and in 1961 a legal action was taken which completely removed the petition section. Since then there has been no appeal section in any Bill and if we proceed we are proceeding without any appeal and it is not our fault. Deputies opposite were there for ten or 14 years and they did not do it.
We must proceed in the normal fashion. If Members want the Bill passed tonight they must proceed with due despatch between now and 7.30.
Surely there is no legislation which must go through before a certain time. This House has to ensure the right of all its Members——
It is a matter for the House; it is in your hands.
I do not mind. If the House want to do it another way.
Is the Minister's request to go back to section 16 withdrawn?
It is over-ruled.
I fear it must be over-ruled. The amendment can only be taken on Report Stage.
The Chair is probably right but I should like to put on record our satisfaction at the acceptance of the amendment. It was necessary and the Bill was weak without it. If we had gone back to section 16 I do not see how it would make much difference. Am I right in saying that until all the sections are passed the printing of the Bill for the Report Stage cannot proceed?
That is my information.
It does not matter which section we go to. I would go back to section 16 now but we shall still come along to section 24 and be in the same position.
On a point of clarification, I understood that we were passing section 16 but wanted to come back to it later——
That was on Report Stage.
And we will have a Committee Stage debate on the Report Stage.
I think that must be clarified, that we should have a Committee debate on the Report Stage.
There was only one amendment down and I am accepting it and the only reason for a Committee Stage debate was to allow a Committee Stage amendment in.
This debate could become very protracted but it could be brought to a speedy conclusion if the Minister would agree to the exclusion of clerical officers.
No. Deputy Molloy said the same thing before when he asked me to have another amendment of his accepted and, having discussed it with him, I agreed to accept it. Now he is proposing a further one. I do not propose to accept his amendment now.
Is the amendment withdrawn?
It is certainly not withdrawn. We have not even begun the debate yet if that is the Minister's attitude on this matter. I make a final plea to the Minister that there is no point in arriving periodically in the House and telling us how urgent this Bill is and that the timing of it now it vital for it to come into operation before the local elections that are pending. The timing of the Bill was not decided by the Opposition.
It was decided by you last week when you would not agree to proceed because you had not a bit of paper. You were like a little baby.
The Bill was introduced by the Minister as a last-minute measure following a parliamentary question put down by me. The Bill appeared about a week later.
You had three years as a Minister and your party had 14 years to do it but you did not do it.
Could I bring the House back to Deputy Molloy's amendment?
The noise is coming from the other side. The timing of the introduction of this Bill was a decision made solely by the Minister.
I want the Deputy to get back to the amendment. He is deviating from the matter under discussion.
This could have a good deal to do with a speedy conclusion of the whole debate. We completely reject the argument that we are up against the wall and that by a certain time and a certain day this Bill must be passed. We should not be asked to debate it on the basis that there is no time left and that it must become law. We do not agree with it as it is worded. We are making it quite clear to the Minister now that he can have the Bill with the amendments he has agreed to take from us and with the amendment that he has put in following the tabling of my amendment, if he accepts an amendment prohibiting clerical officers. We do not agree that administrative staff at that level should be involved as candidates in local elections. If he agreed to that, this can be finished in five seconds but if there is any delay the Minister should be quite clear where the blame lies.
I shall not agree to it.
Ours is a very reasonable request. The Minister has laid down a principle whereby he has excluded rate collectors. Yet he has included clerical officers. We see no logic in that. If the Minister wanted to include rate collectors very strong arguments could be made in favour of that. He proposes to exclude them. We question whether that is right or not but to get the Bill through we are prepared to settle for an amendment excluding clerical officers. If the Minister accepts that, the debate can be over in ten minutes.
Deputy Molloy has not made an argument as to why clerical officers should be excluded although he accepts that rate collectors should go in. He says that if you do not put in rate collectors you must take out clerical officers.
Shall I repeat all the arguments?
You can repeat them as long as you like. They carry no weight. I have made the case that clerical officers are a very minor grade in a local authority, do not take decisions and are therefore eligible as candidates, in my opinion. I think if we speak of workers' democracy we must give them that right. Deputy Molloy tries to give the impression that he knows all about workers' democracy. I worked as a trade union official for 25 years and I know more about workers' democracy than the Deputy.
We should be discussing the amendment.
Is he to preach to me about what workers are entitled to get? Clerical workers are entitled to some say in a county council if the public elect them. For that reason I propose to give them the right.
Why not rate collectors?
I am not prepared to accept rate collectors. Incidentally, Deputy Molloy did not suggest rate collectors.
It would be consistent. Why not put them in?
The Deputy did not suggest it. He has just now thought it up. Rate collectors are (a) the people who compile the register and (b) they have the right, as have rent collectors and home assistance officers, of dealing with the public and being involved financially with them.
So also have clerical officers.
For that reason I am not prepared to agree. I am putting in the very minor grade of clerical officer because I believe that grade should have a right to be on a local authority somewhere along the lines. They cannot affect their own decisions because those are a matter for the county manager.
The Minister is very naive.
Apparently, it is suggested that because they are councillors they might get promotion but if they did they would immediately promote themselves out of their right to be a member of a local authority. Can Deputies opposite not be logical? As regards making decisions I think it was Deputy Cunningham who said that while they do not sign documents recommending something to the county manager they deal with ordinary routine clerical work under supervision. I do not know why this great argument against clerical officers has grown up in the Fianna Fáil Party. I thought they were liberal in their outlook. Indeed I thought the argument would be the other way, that they would be suggesting we were not going far enough and should allow other grades in. Instead, they have changed and now say they should not be allowed in.
There is no consistency.
If the Opposition want it that way they can have it but on a matter of principle I decided that clerical officers should be eligible and that is what I shall stand over.
I came into the House to speak about this because I could not understand the Minister insisting on going through with something for which there is no demand from the people concerned. I have done homework on it and feel this will be an embarrassment to them. Administrative staff and voluntary members of public authorities are two separate groups. Surely the Minister is not thinking of putting people who are working in the local authority offices in the position of being representatives of the people? I cannot understand this. It would not be fair to the officials concerned.
I was on a local authority for 14 years. Apart from the administrative work of going to meetings and discussing the agenda, the major part of a councillor's work consists of making representations with regard to housing grants, the building of specific houses, the repair of cottages and looking after roads and various grants. The staff in the office know all about these things. These people live in different parts of the county and a stage could be reached where the clerical staff would be on the council. That is an extreme case. They could say "Now we will have a meeting". They would be excellent councillors. They could give information to various individuals about getting houses and supplementary grants. They could bring the grants themselves to the people on a Friday night. They could tell a man why his cottage was not being built and what to do in order to get the work done. They could point out the errors in the original applications. They would be idiots if they did not use the firsthand information available to them.
I believe county councillors should learn more about their business. This is the first time I heard the argument about them knowing too much.
It is privileged information.
You might as well ask the Secretary of the Department of Finance to become a Member of this House. It is much the same. There are a few county council staff officers in this House, including the Leader of the Minister's party. They had to relinquish their posts when coming in here. We are paid for being here. It is a wholetime job. A county councillor is in a voluntary position. He is representing an area and is elected from an electoral area. He has certain work to do. Under the Minister's proposal he would have an unfair advantage. He might succumb to the temptations which are inevitably there for him. He would be a superman if he did not do so. It is all very well for the Minister to say that we are attacking the standards of officials of county councils. Men are human. In political life one finds that you go to bed as an ordinary citizen and rise an elected representative. Therefore, as a politician, you are suspect. That metamorphosis would take place in so far as a clerical officer is concerned too. He would be a clerical officer one day and a politician the next day. He would be a poor member if he did not use the information available to him and his inside knowledge in order to get things done. He would not be human unless he used his position.
Why should he be suspect? I am surprised to hear a politician suggesting that politicians are suspect.
I am talking about the outlook of the general public. Their opinion of politicians has not been enhanced by many of the events of the past year.
If they were not surprised in the three years before that, the last year should have been easy for them to understand. We did not do anything we are ashamed of.
You are there under false pretences. You have not yet apologised to the electorate.
What did your party do? Public moneys are safe with us.
There were a few quarrels in the party rooms. Skin and hair were flying.
You are thinking of the old days.
I must insist that the House get back to the discussion on the amendment.
No Minister with respect for what a local authority should be would press for the acceptance of this section allowing clerical officers to be members of local authorities. None of the arguments advanced is valid. There is no analogy whatever when you talk about workers' democracy. The duties of a local authority member concern those who elected him. There can be no comparison with a person working in a firm who is entitled to have a share in the business for which he is working.
He can have a share in the running of the business. It does not have to be a share of the money.
Where is the workers' democracy in the local authorities?
Not where your outfit would be concerned.
I can see why this Bill has been delayed so long in the House. There are a certain number of representatives in each council. They represent everybody in the electoral area. People who are working as clerical officers or in any other grade are represented on that council. I cannot understand what pretence is being carried on about the workers' democracy. There is no analogy whatever. The Minister's argument falls when it is said that rate collectors are not eligible and must not be eligible while clerical officers, who are working at a centre of the operations, are eligible. It does not make sense.
There is something about the registers also. The responsibility of being on the voters' list rests on each individual citizen. It is his duty to see that he is on that list.
Someone else is paid for putting him on.
The rate collectors and gardaí have a duty to compile a list. If they do not do it, there is nothing illegal about it. They invariably miss some names but the message must be brought home that it is the responsibility of the citizens themselves to ensure that their names are on the list. The rate collector, if he is dishonest, as the Minister suggests he might be——
I did not suggest that.
——might fail to put on the names of some people and take off the names of others, but he will not get away with that for very long. Such a man is a part-time employee. He is moving among the people and is free. In most cases he is in a good position to do a good job as a representative for any party or as an independent. It would not be fair to take a man who is tied to his desk at the administrative centre of the council and elect him a member of the council, imposing on him the obligation of representing a particular part of the electoral area. This would create a new dimension in local representation which was never thought of before. It is a retrograde step. I appeal earnestly to the Minister to seriously consider accepting the amendment. Let him not impose this obligation on decent clerical workers.