Local Government (Superannuation) (No. 2) Bill, 1979 [Seanad]: Committee Stage (Resumed).

Question again proposed: "That section 3 stand part of the Bill."

(Cavan-Monaghan): This is the section which enables the Minister for the Environment to amend local government superannuation schemes. I was pointing out that it becomes effective by regulations which may be made retrospective. I was emphasising the point which runs right through the Bill that it is retrospective legislation operated by regulation. That is even worse and more objectionable than retrospective legislation which spells out what is being done. This legislation confers on the Minister the right to amend schemes, to make new schemes and to do that by regulations. These regulations have retrospective effect to give legal effect to things that were done as far back as 1969. I want to put on record that I consider this a most objectionable way of doing things. I made the point on an earlier section as clearly as I could. At any time retrospective legislation which ratifies payments made as far back as 1969 and apparently ignored by the local government auditor because presumably he was told that it would be legalised later on, would be highly objectionable, but when it is to be done by regulations it is even worse.

I know that I shall be told that these regulations must be laid before each House of the Oireachtas and if a resolution is passed by either House within 21 sitting days annulling them they cease to have effect but we know that with the best opposition in the world these regulations are sometimes not scrutinised as closely as they might be. We also know that a Minister making these regulations usually, or indeed invariably, has a majority in the House which will enable him to carry them through. I object in the strongest possible terms to this method of legislation. We are giving the Minister a blank cheque for the future and giving him power to give general absolution for the past and to do so by regulation. I object to that procedure and will continue to do so.

I should like to explain the reasons for section 3. The present legal position is that superannuation is regulated almost entirely by statute. The aim of the Bill is to get to a position where superannuation is regulated entirely by schemes. In making the change-over two approaches are possible, an instantaneous change-over or a gradual one. Under the first approach all enactments would be repealed as soon as a comprehensive codified scheme would be brought into operation covering all aspects of superannuation. The disadvantage of this approach would be that nothing could be done until the comprehensive scheme was ready and this would take a considerable time because of the delay involved in any codification process due, for example, to the need to assemble material from many enactments, to identify the spent provisions and the live ones, to iron out anomalies. This delay would mean that we would have to wait much longer before validating the improvements already made and welcomed by everybody. It would also raise a problem if any further improvements had to be urgently made.

Under the second approach of a gradual change-over, which is the course adopted in the Bill, the statutory framework is maintained for the time being and interim schemes can be quickly introduced validating improvements already made as well as providing for any further urgent changes that may be decided on. Where these involve a departure from statutory provisions, regulations will be made amending the relevant enactments. Later, when the comprehensive scheme is ready, all the relevant enactments will be repealed.

The disadvantage of this course is that the amendment of enactments by regulations, although there are numerous precedents, should be avoided where possible. In this case, however, it was felt that the balance of advantage lay in adopting this approach, having regard to the need to avoid further delay in validating improvements already made or in introducing any further urgent changes that may be found necessary. The enactments which will be subject to amendment are, in any event, due for repeal at a later stage under section 11 or will otherwise become spent. A similar approach has been adopted for the civil service under the Superannuation and Pensions Act, 1976, and there are advantages in keeping in line with civil service arrangements because of the interaction that exists between the two schemes.

I do not want to harp on the delay in retrospection, but I want to talk about it now for a few minutes. I have heard a lot about it but I have not heard one complaint from anyone on any side of this House that we should not do it. No one has come to me from any side of the House to say that. Everybody I know was delighted with all the benefits. Our policy right across the civil service has been to improve superannuation conditions as soon as they are agreed and to seek validation subsequently. This is to prevent persons who are receiving or about to receive superannuation benefits suffering hardships which could arise from longer delays in promoting legislation. As regards the period of delay in the present case, the reasons for this were explained on this Second Stage. They can be summarised as follows. A series of changes were introduced in the civil service superannuation system in a period of eight years beginning 1968. These were applied in the local service also but one step behind, so to speak, in three main stages—(1) the Widows and Orphans Scheme, 1969 (2) miscellaneous improvements mainly in the kind of service to be reckoned, in 1971; (3) the new comprehensive superannuation revision scheme in 1977-78. The Act to validate the civil service changes was passed in 1976. At that stage a working party was in being to consider the position in the local service. When their interim report was implemented in 1977-78 the present Bill was prepared and was introduced in the Dáil in May 1979. It is, precisely, the granting of improvement in legislation and it is necessary for humanitarian reasons.

This Bill and the section are welcome and, as I said earlier, I cannot be held in any way responsible for any delays that may occur on the Bill. We have agreed on the bringing in of all the schemes. People who were entitled to their moneys under the scheme have received them, and they were very welcome to them. I have not heard anybody on either side of the House saying that that should not be done. From what I have heard throughout the country everybody is very pleased and most grateful that this Bill was brought into operation and that there was no undue holdup in the benefits. That is the main thing. Whatever can be said afterwards, I am fully satisfied that it was in the best interest of the people looking for the benefits.

(Cavan-Monaghan): In defence of this disgraceful retrospective legislation by way of regulations, the Minister of State comes in here and says “You cannot hit me now with the child in my arms”.

I will take any club that comes.

(Cavan-Monaghan): The child he is talking about is the benefits conferred on widows and orphans and on local government employees back as far as 1969. Of course, like everybody else, I approve of the benefits that were conferred on widows and orphans and local government employees back as far as 1969 and 1971 and whatever dates apply. But it is my duty here, as spokesman on Environment for my party, to say that I disagree entirely with the system that allows bureaucracy to jog along for ten years in anticipation of the authority from Parliament, and that is what has been done here and is continuing to be done.

That is what I object to, the setting up of a bad precedent assuming authority. One cannot blame the bureaucracy because the bureaucracy would not do it if they had not the say-so of the political head of the Department. I admit that there has been a number of them since 1969, but this is not good enough. This is embarking on the slippery slope of assuming that bureaucracy is the all-powerful arm of government and that this House is only a rubber stamp. This may be said to be a lot of hot air but it is nothing of the sort. We either confer, without question, authority on permanent heads of Departments and the people under them to act on our behalf, or we say that they cannot act unless they have power to do so. No amount of talk will put me in the situation of being alleged to have said that these benefits should not have been conferred or these improvements made but at the time when they were being made some enabling Act should have been put on the Statute Book to give authority for what was done.

The local government auditor had to ignore or approve things for which there was no authority. If that sort of thing is tolerated the effectiveness of auditing accounts is very small indeed. It was said here on the last day that the Government made a decision to do this but the Government is not all powerful, they get their authority from this House. When I raised the question of the local government auditor I was told that no complaint was made by him in regard to any of these things. If not, why not? Surely a scheme introduced or a payment made in 1969 or 1971 which is being validated now deserved to have been drawn to the attention of somebody by the local government auditor. If it is necessary to validate it now there was no legal authority at the time but only assumed authority when it was done. That is what I am against and what I will continue to be against.

Deputy Fitzpatrick raised certain points one of which was to bring in a Bill. We would have to bring in a whole range of Bills. What we are doing here is changing over to regulations so that things will be done by regulation in future in the usual way. I do not apologise to anybody for the improved benefits going back as far as 1969. We had successive Governments, including a Coalition Government, who did not do anything about it. Were Deputy Fitzpatrick and his party of the opinion that we should not have paid out the benefits and that we should have waited till now? I do not know of anybody who wants it that way. The widows, orphans and others who were entitled to help were very glad of the benefits. I make no apology now.

We are now bringing in a system which will update the whole position and which will mean that further improvements will now be made by regulation. Possibly the Bill at that time was not up to the standard desired now but changing circumstances and time have brought about this situation. This is a step in the right direction and I am satisfied that it is the right thing to do.

(Cavan-Monaghan): I am fully aware that repetition is undesirable, is frowned upon and is not in order. When I spoke last I made it as clear as crystal that I was not complaining about the awards, the gratuities or the pensions paid in 1969 and 1971. I now repeat that. When I last spoke I put a number of queries to the Minister which he did not answer when he intervened just now. Instead of dealing with the queries I put to him the Minister saw fit to repeat what he said several times before, that he did not apologise for improving the pensions and gratuities. Will the Minister find out how the local government auditor got around——

I told the Deputy last week that there was no complaint from the local government auditor.

(Cavan-Monaghan): I want to know why there was not.

The Deputy did not want the money to be paid. He cannot have his loaf and eat it.

(Cavan-Monaghan): A good political point.

Has the Deputy met his match?

(Cavan-Monaghan): One meets a lot of matches over there in different places. Will the Minister find out how the local government auditor over the years apparently did not raise any question on payments that were made without authority? A whole series of Bills should not have been introduced but an interim Bill should have been introduced authorising the Minister to do certain things subject to certain reports to this House. That would have made the thing legal. It would have given the Minister the authority in the interim to do what he is getting the authority to do now. The Minister would not be doing it nor would civil servants be doing it in anticipation that the House at some future date would march through the lobbies and give authority for what they are doing.

This point is not so foolish if the Minister will have a look at it. This has been going on for ten years. We are now validating things that were done in 1969 and 1971. I was a member of Government during that time for four and a half years but I am here now and it is my duty to bring to the notice of the House and anybody else who wants to hear about it that we are having moneys paid and benefits conferred without authority, and in anticipation of authority, which was not even asked for until ten years after it was necessary. That is what I am objecting to. The Minister can say again: "Do not hit me with a child in my arms."

I would never do that. The Deputy would do that better himself.

(Cavan-Monaghan): I am very glad the pensions were paid, but I would be much more pleased and very much more happy if they were paid in a legal manner rather than in an illegal manner. I would be very much more happy if they had been paid in such a way that the local government auditor did not have to close his eyes.

Progress reported; Committee to sit again.