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Dáil Éireann debate -
Wednesday, 11 Dec 1985

Vol. 362 No. 10

Private Members' Business. - Valuation Bill, 1985: Committee Stage (Resumed).

Question again proposed: "That section 2 stand part of the Bill."

Before progress was reported on 9 July last, we had discussed section 2 at length and before the question is put I should like to indicate that I have been examining a number of the matters raised and have decided as a result that beyond reasonable doubt the Bill does what I said it would do when I introduced it in May. I found that the fears expressed by the Opposition and elsewhere are grossly exaggerated. On Report Stage I will be proposing an amendment to section 1, with a consequent amendment to section 8. I cannot do that now. The amendment would clarify the Bill and establish beyond any doubt that the fears expressed by the Opposition in the House and elsewhere are grossly exaggerated.

I recall 9 July and the welcome we all gave to the indications by the Minister that he would reconsider the terms of the Bill. I recall, too, the response then not only from the Opposition but by business and commercial interests throughout the country who had been clearly concerned at the impact the Bill would have, because it would lend a valuation base to equipment, containers, pipes and machinery which previously had not been covered. In July we were reassured by the indications which the Minister seemed to be conveying to interest groups throughout the country and to ourselves. It was a case of parturiunt montes.

We have waited all those months to see the effects of what the Minister undertook to do and the understanding which we in the Opposition were given and which legitimate interest groups outside had from discussions with the Minister. However, in the last two days we got copies of the amendment which the Minister has said he will move on Report Stage. That amendment is not in any way adequate to give effect to what may have been the Minister's intention. It is not acceptable to the Opposition and to interest groups outside. I am satisfied, and my opinion is confirmed by the views of others, that the amendment does not in any way allay what the Minister called grossly exaggerated fears and misrepresentation. Unless and until the Minister is prepared to make really effective amendments which will tidy up and clean the Bill, such as the amendments I have proposed——

There is not an amendment before the House.

I referred to a Report Stage ministerial amendment. The Minister will have seen our amendment and I suggest that they will put the matter beyond any doubt. If we have a signal from the Minister that he will accept our amendments, which represent the views of the Opposition and of the legitimate interest groups outside, we will be prepared to allow the Bill to go through, and indeed to support it. Otherwise, we will have to deal with the Bill in a lengthy and detailed fashion.

I want to make a brief reference to the proposed ministerial amendment and to the Minister's suggestion that the claims made originally about the Bill were totally exaggerated. If the Minister had shown me that he was correct I would have accepted it. Much consultation has gone on between officials of the Department and the Valuation Office and a commonsense approach was adopted to the problems to which we genuinely pointed. I am amazed at the good intentions expressed by the Minister to Irish industry. If they had been set down in legal phraseology in the Bill we would not be here for 15 minutes tonight. Unfortunately they were not. In the long debate that will take place, perhaps the Minister will be able to enlighten me about why the proposals suggested by the Opposition were not inserted in the Bill.

I cannot allow this on the section.

All I am saying is that Deputy O'Kennedy's amendment would have the effect of transcribing the good intentions of the Minister and incorporating them in the Bill. In response to the Minister's opening remarks on the section it is obvious that he has not moved ground in any way, that he has not done anything to remove the fears that were expressed. I should like to think that those fears were exaggerated but having had the position examined privately and also having had the view of the CII of which I am a member, I find that they are not in any way exaggerated. When it comes to interpreting the Bill, those concerned will refer only to what is in the legislation. They will not be interested in what the intentions of the Minister might have been. It is regrettable that after such a long period of discussion and negotiation we are back to the fundamental problem that the valuation base is being extended, that "machinery" has been changed to "plant" and that the definition of "plant" is widespread in the various sections. The Bill is not providing what the Minister tried to tell us it was providing.

These amendments are to section 3. There was passing reference to them by the two previous speakers but the Deputy is embarking on a long speech and I cannot allow that.

Section 2 determines what are to be defined as heridaments for valuation and section 3 defines what those are. I am suggesting that section 2 is expanding the base but we shall have plenty of time during the remainder of the evening to argue this.

Question put and agreed to.

Amendment No. a1. a is an alternative and may be taken with amendment No. a1.

I move amendment No. a1.:

In page 2, subsection (1), in the Schedule, to delete the reference number "3," in column (1) and all words from and including "All cables" down to and including "which pertain to them," in column (2).

This amendment has been tabled in my name since the Bill was before the House last, that was in July. The effect of the amendment would be to delete the reference to No. 3 in column (1) of the Schedule. In effect that would be to delete the reference to all cables, pipelines and conduits, whether underground, on the surface or overhead and including all pylons, supports or other constructions which pertain to them. If that amendment were adopted the items referred to in the Schedule and which were not included previously in any Valuation Act since 1852 would be deleted. The amendment I submitted today confirms a case I made in this House during the Second Stage and subsequently on Committee Stage. I acknowledge that the amendment is an alternative because it seeks to delete the words "all cables" and substitute all easements or rights of way over or under land appertaining to all cables, pipelines and so on.

Apart from those of us on this side of the House, the interest groups who have expressed concerns, and these include industry and business generally, would be happy if the Minister were to accept the amendment. I wish to indicate the urgency and the need for the amendment. While acknowledging what the Minister conveyed in what I believe was good faith, both to ourselves and to the representatives of industry, nothing said in this House by him, much less anything he might say outside, has any legal effect and I speak as one who for the past 20 years has had considerable experience and practice in court. This has been held to be the case down through the years. In interpreting legislation the courts never referred to what was said in the Dáil or to what the Minister intended the words to mean. The courts have regard consistently only to the terms of the law.

The amendment the Minister has submitted and which will arise now only on Report Stage is totally inadequate to meet the needs the Minister indicated he would meet. The Minister's amendment which proposes that plant shall include any fixture or structure which though free standing is of such size, weight and construction as to be of a permanent or semi-permanent nature, would mean that at law we would be including all such equipment as pipelines, cables and so on about which we have expressed reservations on the Stages of the Bill so far. The Minister has indicated, admittedly honestly if not naively, in the explanatory note he supplied that the amendment he is asking us to accept as significant does not change the Bill or its purpose in any way so that all of these months have been wasted.

Have they not been a process of education?

After six months we are told that we have been wrong that the CII were wrong, that all the assurances they sought are not being given. What the Minister is telling us is that he has considered the matter and found that we were all wrong so now there is no need to introduce amendments of the kind we have been arguing for.

It is not only pride that would force us to reject that approach. It is a matter of the reasonable analysis of the ordinary meaning of the words the Minister proposes. For that reason I urge that one or other of the amendments in my name be accepted. This would leave the matter beyond doubt and would exclude cables, pipelines and conduits, whether underground, on the surface or overhead and including all pylons, supports and other constructions pertaining to them. If the Minister is not prepared to accept that I urge him to accept the alternative amendment since the existing valuation process applies to easements and to the property over which those pipelines and so on pass. The amendment would ensure that we would not be incorporating into the law equipment, plant, containers and pipes.

This has no relevance to the Deputy's amendment.

It has everything to do with my amendment. If we are to engage in the education process perhaps I should start now. The amendment reads:

In page 2, subsection (1), in the Schedule, to delete the reference number "3" in column (1) and all words from and including "All cables" down to and including "which pertain to them." in column (2).

Is the Minister suggesting that what I have been arguing has no relevance to that amendment? If so, it is hardly surprising that he is so confused as to come back here telling us that he is meeting our case when he is doing the opposite.

That is a totally separate question.

They are all interlinked. These matters were not included in the valuation base and we are anxious that they be excluded now. Either the Minister can accept the simple request I am making and delete that Schedule or else insert at the beginning the reference to easements over these matters. That would be acceptable. That is all I am asking. If the Minister does not see fit to accept our amendments it will have a drastic effect on industry. I do not share the view that the response of the Confederation of Irish Industry, individual industrialists or business people has been unreasonable or exaggerated. The addition to the valuation base of matters included here which are used for manufacturing purposes or processes could add at least an extra £50 million to the rate paid——

It has been clearly demonstrated that that is not the case.

There are views that suggest that that figure is conservative.


The Chair suggests that Deputy O'Kennedy concludes his contribution without interruption, and then the Minister can reply.

It may be that the Minister is suggesting that the commissioners would not interpret the law in this way and that they in their discretion would not implement the law in this way, but they could interpret the law to include all of this equipment which hitherto has not been rated for valuation purposes. In view of the Minister's refusal to accept my submission, is the Minister not aware that An Bord Telecom and the ESB, for instance, will have to face an extra bill of perhaps £15 million? If these businesses find it necessary to pass the extra costs onto the private consumers and the business consumers, the productive sector will suffer even more.

Most people are aware of the climate for industry and enterprise. To add this burden through a deliberate extra charge by the State would be not only intolerable but insane. The ESB are already paying something of the order of a £22 million levy in lieu of rates, a figure which most people regard as excessive having regard to the actual value of their property. An additional £8 million, which is what would probably arise here, would be unsustainable and unjustifiable in any circumstances. Many people outside of the House are convinced that the Government are not aware of the effect of their actions on investment. They do things for what they believe to be the right reasons but the consequences of their actions are disastrous for investment and enterprise. We need a major boost for enterprise and business and not the plethora of schemes and support agencies that are proliferating. We need to assure enterpreneurs that at last we are going to encourage them. This Bill will just add an extra burden to the already crippling levels of taxation that they face.

In response to sustained opposition from these benches and from industry generally, before we adjourned last July we understood that the Minister would be coming back with a response to our proposals. Despite all of that we now have an amendment which the Minister proposes to introduce which will not meet the needs. The Minister seems to be guided by technocratic analysis and advice without any awareness of the impact of his decisions on commercial and business life. It is becoming clearer that there is a very sharp distinction between how the Government promote a new era of investment——

That is cant and rubbish.

——and how this side of the House would promote it.

I can come after the Deputy and spend as much time talking about irrelevancies.

Three years ago——


The Minister's figures are wrong. The Minister has not got a figure right since he came to office.


The difference between 56 per cent of an overrun on the current deficit and 3 per cent is pretty big. The Deputy cannot talk about figures.

The Minister should buy a good calculator.


We came in here tonight prepared to respond to the Minister, but the Minister has shown that he is not prepared to respond to common sense. Interjections of the kind which the Minister has just made are not uncommon.

I spent the past four months——

I have been listening to the Minister for the past three years since he introduced his first budget and I regret that experience has shown that we were all too right and the Minister was all too wrong. How often have I heard the words "arrant nonsense", "crap", "jargon"——

I would not use that word in here.

I could mention many occasions where the Minister just dismissed every suggestion from this side of the House with a dismissive gesture. Unfortunately the reality proved that we were all too right. I am saying the same tonight. I am pleading with the Minister to accept at least the second amendment. I will not insist on the first amendment. We should get back to where we were before the Minister introduced this Bill and simply insert the provision in relation to easements which would leave it beyond doubt that what we will be talking about will be the inclusion in the valuation base of easements or rights of way over or under land appertaining to cables, conduit pipes etc. That was the case up to this.

If the Minister is saying, as he did when he first introduced the Bill, that this has existed for 100 years, why is this Bill necessary? If nothing has changed, if the valuation base is the same as it was in 1852, why is this Bill necessary? If we want to reach agreement on the fact that the valuation base will be the same after this Bill as far as business and enterprise is concerned, then the second of my two amendments should be acceptable because it leaves it clear beyond doubt that we are talking about easements and not the actual equipment included in this section of the Bill. I will leave it at that.

I await the Minister's response but I am sure some of my colleagues would like to make their position known on this as well. I would be glad if the Minister would signal to us that not only is the intention right but that the words to give effect to that intention will be introduced by way of an amendment and then we could all happily for once go out of here agreeing that what we intend we have written into the law.

The items that are at No. 3 in the Schedule in section 3, in common with all of the other items listed in the Schedule, have always been valued and rated. To say just a little bit more about that, the inclusion of the items at No. 3 in the Schedule does not change the practice with regard to the valuation of cable, pipelines, conduits and so on.

I am not interrupting the Minister, I just want to ask one question and, if the Minister can clarify this, we will be happy. When the Minister tells us that the items included in No. 3 in the Schedule, about which I have been expressing concern, have always been included for valuation, would the Minister then mind explaining why it is that he has to add them to section 48 of the original Act?

If the Deputy will allow me, I will come to that. The inclusion of the items listed at No. 3 in the Schedule does not change the practice with regard to the valuation of cables, pipelines, conduits and so on. Section 12 of the Act of 1852 provides for the valuation of these items on an easement basis——

That is the argument.

——but the practice of valuing them on the linear unit basis, otherwise known partially as the contractors method, has been invoked for over 100 years. What we are doing in the Bill is putting on a legal basis a practice of long standing. It will not lead to an increase in valuations. It provides merely for a continuation of the practice that has always been used. For that reason obviously I cannot accept amendment No. a1 because the effect of that would be to remove these from the valuation base completely. I would not be disposed to accepting amendment No. a1.a because that would take away the ability to follow the practice that has been followed for 100 years in valuing these items and which has turned out to be a very convenient method of dealing with this. The inclusion of these items at No. 3 in the Schedule does not in any way affect the actual valuation and rating of these items.

If the House will allow me just a little latitude — and I will not stray any further than Deputy O'Kennedy did just now — that is my intent and I will demonstrate that it is my intent by limiting myself to saying, in reply to Deputy O'Kennedy's question as to why the Bill was necessary in the first place that I explained that very clearly on Second Stage when I made no bones of the fact that what I want to do with this Bill is to clarify the position in relation to valuations, to put beyond doubt matters that up to now seemed to have been in doubt and which, in the courts, have led to certain decisions having been made that have reduced the base in certain specific cases.

If that was all the Minister was doing there would be no problem.

That is the full extent of the intention of this Bill. Since we are dealing with section 3 and the Schedule, I am not taking an excessive liberty in going a little further and dealing with what has actually happened since we last had a discussion on this matter in the House. If I may use the phrase, I am hanging my remarks on No. 5 of the Schedule. What we have done since our last discussion on this Bill in July is to take up the concerns expressed by a number of people, including Deputies in the House and a number of people outside. We decided to put their contentions to the test.

I arranged for representatives of the Confederation of Irish Industry, of the Valuation Office and people involved in the industries concerned to carry out six factory visits during the course of which the valuation officers would describe how they would go about valuation on the basis that this Bill were passed so that we would have a clear picture of what, in practice, the Bill would actually mean. The conclusion from each one of those inspections and visits was that the one problem that arose was a misunderstanding of the term "plant" as used in the Bill.

In each case, on the inspection of a factory, carried out on the assumption that this Bill were passed and all of its provisions were in force, the inspection of the factories picked by the Confederation of Irish Industry, not by me, showed conclusively that the Bill did not change the practice, the procedure or the valuation of the premises, plant, equipment, machinery, all of the whole complex of things in each one of those factories. It also allowed us to show very clearly that the difficulty arose from the fact that "plant", in the terms of the Bill, has a specific meaning assigned to it.

My amendment — if I may make a very brief passing reference to it — is designed to clarify that definition. However, the misunderstanding arose from the fact that all of us, in the course of everyday business, used the word "plant" in several different ways. Deputy Reynolds knows this as well as I do.

I do. That is why I cannot understand what the Minister is saying.

A number of us will use the word "plant" when we are actually talking about a whole factory. A number of use will use the word "plant" to describe items of earth-moving equipment, plant hire. A number of us will use "plant" on some occasions in the restrictive sense in which it is included in the legislation.

I love that. The Minister should go to the courts and find out.

What I have set out in my amendment is the specific definition of "plant" that is used in the process of valuing property. That is what my amendment sets out to do.

As defined by officials in the Valuation Office, by the Minister's officials or by whom?

During the course of those visits we also looked at the specific question of process plant, again an area subject to some wondering on the Opposition side of the House and indeed outside the House. Process plant would include a whole assemblage of vessels, pipes and other equipment. We particularly took a creamery as being one of the specific areas mentioned, a good example of an operation which necessarily included a lot of process plant. There was an impression abroad that process plant of that kind would be subject to valuation under the provisions of the Bill. It has always been regarded as machinery by the Valuation Office and, therefore, exempt from valuation and will continue to be exempted from valuation under the terms of this Bill. That is why I have brought in an amendment to clarify the definition of plant, and it is clear from definition that it does not include process plant in the concept normally talked about. It was clear from each of the inspections that nothing in this Bill changes the approach that the Valuation Office use to the valuations.

That was educational visiting.

They were very educational and they showed conclusively to those who had expressed fears about the effect of the Bill that there was no foundation for those fears. To make assurance doubly sure I have brought in an amendment which we will reach on Report Stage to make clear just what the definition of plant is that is being used here.

It does anything but that.

I could go on at length about this, a Leas-Cheann Comhairle, and in case you have any doubts about the appropriateness of my remarks to the section, I remind you that it is in the Schedule that we refer to plant. We could give the example of a creamery. A cooling system in a creamery consists of a whole array of pipes, vessels and other usually stainless steel equipment which is commonly regarded as process plant and which it is feared might be brought in under the terms of the Bill. It is regarded as machinery for valuation purposes because the equipment induces a change in the milk; for example, it cools it to a certain temperature. If this change were to happen naturally or chemically, the vessels, tubes and so on would not be regarded as machinery. They would be regarded as plant and, therefore, valued. Since it does not, they are not. Again, it is to make that clear that I have brought forward the amendment which I will come to later which shows clearly that process plant of this kind——

It shows clearly that the milk business——

I am sorry. I will not be tempted into the kind of ill-humoured badinage that Deputy O'Kennedy seems to object to. I intend to stay——

Stay with the amendment.

——with the amendment. It is important that in making these definitions we are rigid so that people will know exactly what we are talking about.

The Minister is doing it for the benefit of the Valuation Office.

We also had a look at the Sugar Company.

The only crowd who are happy after the Minister's visit are the Sugar Company.

On a point of order, we had here argument about the terms of a Bill. I hope I can get not only the indulgence but the support of the Chair in insisting that that is what we confine ourselves to. We do not need a tour of the nation to illustrate what our job is here, Sugar Company, creameries or whatever else. I wish the Minister would address himself to the terms of the Bill and the amendment. If he does that he will clarify in terms which will be definable in law the purpose of this Bill and his amendments. If not and he brings us on a tour from here to Timbuctoo, it will not matter a damn. It will be of no consequence as far as the Bill is concerned.

We are on an amendment.

I know that.

I am sorry Deputy O'Kennedy appears to be annoyed by this. I think I can say fairly that I have taken less latitude than Deputy O'Kennedy took a few moments ago when he was moved to talk about things like the investment climate and so on in terms with which I would not agree. I am still sticking to what is in the Bill and in the section. I assure Deputy O'Kennedy that in referring to this tour of the country I would like to do here tonight what that tour did for the people in the CII who felt at the beginning that the Bill did a number of things other than those I said it would do. If I am going on a tour of the country in this way, with your permission, Sir, it is simply to point out that there is nothing in this Bill that changes the practice or valuation base with the exception of the cases which I referred to very clearly in my introduction on Second Stage. I do not deny that they are important. Deputies on the other side of the House and, indeed, on my side of the House have written to me over the past few weeks in urgent and pressing terms asking me to get this Bill passed.

Where are they now?

I do not know. For example, Deputy E. O'Keeffe may be around the place. He has been asking me if we could not for God's sake get this Bill passed because Cork County Council.

He must be a member of Cork County Council.

I have their full backing and they know perfectly well that I am aware of that.

Why do Cork County Council want it passed urgently?

For the very reason for which I am bringing it in.

Is it to get a great deal of additional revenue from industries in County Cork?


A previous valuation had been appealed to a court and reduced in a way which was not in keeping with the intention of the legislation and with anything that I am proposing here. I do not for a moment criticise the courts.

Is it final?

It is not final.

Is the Minister saying that the courts are coming to decisions not in keeping with——


I do not for a moment accept that point of view and I do not think Deputy O'Kennedy means it. He knows as well as I know that there are numbers of different ways in which deficiencies in legislation and in the working of legislation in particular can emerge. One is through decisions made in courts. If those decisions show that the legislation can be interpreted in a way that is not in keeping with the intent of a legislator, it is up to the legislator to make up his or her mind as to whether to take action. I have made up my mind and the Government have made up their mind in this case that we are going to take action. We have that action in this Bill and it is designed to do what I said last May in this House it was going to do.

Let me turn briefly to the Sugar Company. That was another case in which it was alleged that the provisions of this Bill would increase the valuation substantially. Inspection there showed that there is nothing in the Sugar Company in that factory that would be captured by this Bill that is not already included in the valuation base. We come to the ESB. Deputy O'Kennedy pointed out that required of the ESB——

A sum of £22 million.

—— is a contribution in lieu of rates. We have been discussing the matter with the ESB for quite some time in order to clarify the valuation so that we will all have a better base to work on. That process continues. This Bill will make no difference to that.

On my amendment, the Minister is indicating, though unintentionally, that there is a need for these amendments. As he put it, his purpose is to clarify the position and put beyond doubt matters that have been in doubt and also to ensure that interpretations by the court would now be brought into line with the original intention of the legislation. Clearly the courts and the courts alone are the people charged under our Constitution to give effect to the meaning of Acts passed in this Oireachtas or in the Parliament which preceded it. Words have no meanings except those attributed to them where the test arises in court. For that reason words or intentions expressed in the course of debate by the Minister are of no consequence at all.

The Minister told us that he is putting the matter beyond doubt in his amendment but I have to tell him that he is not doing anything of the kind. Our case is that the ordinary meaning of the words he had in the original Bill, or in the amendment he has proposed, can only introduce into the valuation base plant, equipment, pipes and so on that were not included according to the decision of the court in a number of cases. Nothing can be clearer than that. Frankly, the Minister is trying to get around the decision of the court on the interpretation of the legislation that has been in existence for some considerable time. He wants to add in matters that the court as of now will not include as being properly liable for valuation. That is clear and the Minister is nodding his head in response to that. We must be clear on that if we are to talk in terms of clarity.

We must make it clear that we vehemently oppose that move. The Minister has placed great store on the trip around the nation to sugar factories, creameries and so on. I must acknowledge that we do not for one moment question the bona fides or the intentions of the staff of the Valuation Office in this regard or what they intended to convey to those they met in the course of their journey. If we are talking about the legal interpretation the Minister will have heard — I do not know if the Minister was ever introduced to any course in law and I do not make that remark in any snide or critical way — of one of the basic principles res inter alios acta, matters done between all of us, which are of no effect at all in terms of the legal issue that will arise or the interpretation by the courts. The fact that some officers on one day gave assurances to people in Avonmore Creamery, the Thurles sugar company or else where will be of no consequence if an issue arises between the Minister for Finance and the industry of Deputy Reynolds or any other men of enterprise here.

What the Minister has said is the actual law because the valuation staff said that was how they would use it, is equally of no consequence. It is for that reason that we are saying that all the assurances here and outside do not matter. We are only concerned with what we pass here. It is about time that we were really determined to understand as best we can as legislators, not as lawyers, what these words mean. The same applies to debates on Finance Bills. Having listened to the Minister I have no doubt what these words not only mean but will be taken to mean in the future.

It is my view that they will be taken to mean that areas which were not included such as equipment and plant will henceforth be included. That is why I am insisting that the Minister should accept this amendment or introduce one to this effect. If he introduces an amendment we will study it fairly and if it gives effect to what he states we will accept it. However, there is no point in telling us what the valuation staff said in Thurles or elsewhere. There is no point in telling us in an assertive way that he is putting the matter beyond doubt. There are other judges who will decide whether or not there is a doubt.

I can give the Minister one opinion, which is reinforced by other counsel who do not wear two hats as I do. That opinion is that it is far from being beyond doubt and that the Minister would be including areas that he says are not intended for inclusion. The Minister should accept our amendment which would bring the matter beyond doubt.

I am not entirely clear on the position in regard to amendments and so on because I understood, according to the Whip, that this Stage was ordered for 9 p.m. I turned up at three or four minutes before nine to find that the debate had started. As far as I can see the Minister has not put down any amendment on Committee Stage but proposes to table one on the Report Stage. That is an extraordinary position. Why he will not put down an amendment on Committee Stage and allow it to be properly debated I do not know. He has had six months to do so.

I should like to raise a point of order with the intention of being helpful to the Deputy. My basic amendment is to section 1 which we disposed of on Committee Stage in July. According to the rules of the House I cannot return to that amendment until we reach Report Stage.

The Minister will not agree with the definition.

Has Deputy O'Malley a copy of what the Minister intends to introduce on Report Stage?

No. I am sorry about this but I was here before 9 p.m. Apparently there was some arrangement to start early.

The reason Deputy O'Malley does not have a copy of the proposed amendment is that under the rules of the House I am not allowed to circulate it until we come to Report Stage. I gave a copy yesterday to Deputy O'Kennedy as a courtesy because I believe in the maximum of clarity in these discussions. If Deputy O'Malley wishes me to do that privately outside I will be happy to do so.

I would be glad to receive it in due course. I am extremely disappointed to find that we are in this position because we were led to believe during the recess and in recent weeks that the difficulty which arose and which was discussed at some length on 9 July had been resolved to the satisfaction of everybody. I understood that the Minister for Finance intended putting down amendments which would cover the points in question on Committee Stage. We now find that he is putting down an amendment on Report Stage to define "plant" obviously in a way that seems on reading it not to be satisfactory.

I should like to direct the Deputy's attention to the little addendum under the amendment. It is very revealing.

It states that much of the material appeared in the original section 7 (2), hence the second amendment. In the course of remarks on the section I heard the Minister say that there was no question of anything new being proposed. He said the Bill would not apply to processed plant. If that is the case I should like to ask the Minister if, in order to make assurance doubly sure, he would accept amendment No. 4 in my name, the first amendment put down on 8 July last. That amendment reads:

In page 4, after line 25, to insert the following subsection:—

"( ) This Act shall not apply to process plant or to any form of plant or machinery used to convert or change the substance of any material whether by way of manufacturing or otherwise.".

That seems to be totally in line with the verbal assurances given by the Minister and if it was accepted I would not greatly mind what other amendments were made because that would cover the matter which a lot of other Members and I are very fearful about. I doubt if the Minister's proposed amendment on Report Stage will have that effect.

The Minister did not have to wait until Report Stage to introduce that amendment. He could easily have introduced it on Committee Stage as a new section. It is most unsatisfactory to introduce it on Report Stage when we can only speak once. If I ask a single question on Report Stage I am precluded from speaking again on the matter. It is most unsatisfactory to introduce an amendment in that way. New amendments of that kind, other than technical ones, should be introduced on Committee Stage to allow the House to debate them. I regret to have to say that it seems to me that this procedure is only a contrivance to avoid proper debate. That amendment would not stand up to proper debate.

If the Minister is correct and means what he says, that the processing plant shall not be rateable, let him accept amendment No. 4, the first amendment of all which caused a flurry of amendments to appear at late hours, including some as late as today. That would get over the whole matter and after that none of the other aspects would matter that much. There is a problem on this question of pylons, but I am less concerned about that because clearly that is a matter for the ESB, RTE and Bord Telecom who are in a position to fight their own corner if they want to. They have access through Departments to fight this matter, which industry generally does not. Might I briefly make a procedural inquiry to the Chair? Are all Stages of this debate agreed to be completed by 11.30 p.m. tonight?

I am relieved to hear that. Committee and all subsequent Stages by 11.30 p.m. tonight was on the Government Whip. I am glad that that is not the case. I am afraid that this needs quite a fair amount of examination, being a matter of some importance. To my mind it is tragic to see us dragged into this unnecessary debate where, for entirely bureaucratic reasons, court decisions are sought to be upset under the guise that everyone knew what the law should be and was until the courts set it aside. We had another example of that within the last 18 months and it has been dragging on for that length of time — that is the famous Air Transport Bill. Is the same principle applying here?

There is nothing like a court decision to enable bureaucrats to say, "We only want to clear up the situation. We will get the crowd in Leinster House including, it is hoped, our own Minister, to accept that this really means nothing. It is only clearing up a court decision". The court decisions involved here are fairly clear. They say that machinery is not rateable. The purpose of this Bill, basically, is to make machinery rateable. We have heard from the Minister that he has had representations from a number of Deputies in County Cork, presumably made at the instigation of Cork County Council, urging him to have this Bill passed quickly. Deputy Reynolds informs me that the industry concerned, from which they would hope to get a very large amount of additional rates is Whitegate, owned by the Irish National Petroleum Corporation. I do not know how much is involved, but it is probably several hundred thousand pounds. That is why they are so anxious about it. I would say to Cork Deputies, and all Deputies, to think again. It is not just Whitegate; it is not just Pfizer who fought a case successfully before Mr. Justice Costello in the High Court on 31 July 1984. Cork County Council will have to remember that their additional income will not just come from Whitegate, which presumably because it is publicly owned is regarded as fair game, or from Pfizer which is foreign owned and looked on to some extent as fair game also, unfortunately, but from Golden Vale in Charleville, Mitchelstown, Ballyclough, Drynagh Creamery and the other creameries in west Cork and the creameries in east Cork. That is a very serious situation. How much more will all those processing industries have to pay if this Bill is passed? There is no question but that they will have to pay substantial additional money — how much I do not know. No one will know until the actual evaluation is done.

The Deputy knows this.

Clearly, to put Whitegate back into what is described as the situation it was in and to put Pfizer back will draw hundreds of thousands of pounds extra each year out of industry.

Not just in Cork.

Not just in Cork; we realise that. I have been talking about Cork because that was the one mentioned earlier but, of course, the same thing is true in almost every part of the country.

Right across the board.

Perhaps there are some counties that do not have major processing industries, but they are few and far between. Happily, most counties have and some like Cork and Dublin have a large number of them. The consequences will be extremely severe. All the assurances in the world given, no doubt, with all good faith by the Minister in this House are not worth the paper on which they will be printed in the Official Report, as Deputy O'Kennedy has pointed out to the Minister several times. They mean nothing. The only thing that will mean anything is the wording of the actual Bill that will be passed by this House and by the Seanad. You can have all the Official Reports you want with all the assurances of the Minister, all the letters that you want from the Minister and apparently some people have letters giving them assurances but I have had to point out to them that those letters are absolutely useless.

Even since those letters were received there have been further letters to show that the assurances are not so acceptable after all.

Please continue, Deputy O'Malley.

You cannot legislate by way of extraneous letters. The only way you can legislate in this country is by way of the legislation which is actually passed. This Bill is brought in, we are told, to get over, deal with, or whatever the phrase is——

A loophole.

That is a great word in the Irish Civil Service. It is like a vacuum, it must fill itself automatically. This is a loophole and therefore anything is fair game once you are closing off a loophole. The Government bring in this Bill which greatly extends the whole question of what is a rateable hereditament. I have in my hand a letter which unfortunately I cannot quote to the House because it is from a public servant who deals in this area and knows a great deal about it, lamenting what has been done and saying that having read the debate on 9 July last he feels it is his duty to bring to my attention what is being done and what the consequences of it are going to be. I wish I could quote his letter and his name but I cannot do so, but you have my assurance that he is a very senior man and expresses great concern and he is of the view that the situation will be quite different from what the Minister portrays it as, that it will greatly extend the whole concept of what is a rateable hereditament. He gives me the history of the different court cases which have brought about the present situation, why and how it was done. He gives me the history of the 1852 Act and the amendment in 1860.

Closing loopholes in those two Acts, which is the phrase used in relation to this Bill, really is a joke. How can the processes that exist in 1985 ever have been in the contemplation of the Legislature in 1852 or 1860? In 1852 the only motor power to which they could refer was watermills. There was nothing else. You could only have a factory provided you were situated on a falling river. What relevance has that to the modern processing industry that we are talking about now? What relevance has it, for example, to a chip fabricating plant which we have in Limerick today? How can you say that you are trying to restore into the 1852 Act what the Legislature had in mind but which was improperly cast aside by the court in 1984?

I did not say improperly.

Cast aside, with the implication that it was improper because it reduced the revenue.

That it was not the intention of the legislators of 1852.

You are still on amendment a1.

They interpreted their intentions in the legal way.

I would suggest to the Minister, the Valuation Office, the Revenue Commissioners and whoever else is involved in this that the proper approach here is to say to themselves and to us as the Legislature that the 1852 and 1860 Acts are totally out of date. Look at the language of them — long, "raiméisy" medieval English. To say that you are amending those Acts in order to make clear the intention of the Legislature in 1852 when you are talking about genetic engineering plants or things of that kind is laughable. What should be done, therefore, is to bring in a new Bill, having repealed those two Acts altogether.

Hear, hear.

I have a similar amendment to Deputy O'Kennedy's further down the list. Deputy O'Kennedy's amendment has a sensible objective in that it is trying to prevent the expansion of a whole new concept of things, machinery, objects into the category of being rateable hereditaments. For that reason I fully support it and I hope that these amendments will be pressed because the consequences of their not being pressed would be disastrous. It is not enough just to press them. The Minister cannot go on with this kind of legislation. If he wants to raise an extra £80 million or £100 million from industry by way of taxation, let him say so and let us vote on it in the budget. That is the appropriate time to do it. He should not use this kind of back door method, telling us we are only blocking a loophole which has arisen as a result of a court case. We have seen the consequences of an attempt to block a loophole 18 months ago in the Air Transport Bill. It is not good enough.

The Minister will agree that I do not trouble this House too often on legislation. I have spoken during the past year or so on only a small minority of Bills and only where I have been aware of an urgent need in the public interest to oppose some provision. I know that in this Bill and in this provision in section 3 there is a wide extension of the whole concept of rateability and the consequences for industry at this time are especially harsh. The Minister should not proceed with it, particularly in this way. If he wants to raise £60 million or £100 million from industry he should do it in a more open way in the budget.

We have heard two eminent legal speakers regarding the interpretations of this Bill. I am not well versed in legal matters but in ordinary language it means that what was contained in the old Valuation Acts in relation to easements and hereditaments is the valuation of what we commonly know as the right of way. The Minister is proposing that the cables or pipes which run through that right of way are to be valued. Is that right or wrong?

More or less right.

That is a fundamental change, although the Minister said there was no change. It is a clear contradiction.

That has been the practice for 100 years.

The Minister contradicts himself again. What do you do with a man like that? I will not waste my time any further. I have got a clear admission from the Minister that what he is doing is fundamentally different.

Have the ESB being paying on their lines for 100 years?

Not at all. The Department of Posts and Telegraphs were not paying on their lines either.

If the Minister had been there 100 years they would have being paying.

I will not permit this debate to be conducted by question and answer.

I did not think it was necessary to explain that the ESB did not pay on cables but that in future they and Bord Telecom will pay. That is a fundamental change, a widening of the base of valuation. Deputy O'Kennedy's amendment clearly sets out to go back to what the Minister said was his intention, that is, to preserve the old traditional basis of valuation. That is what the amendment is about.

I listened with interest to the Minister taking us around the country on an educational tour for the Valuation Office or the officials of his Department. He is being less than honest when he tries to convey that everything in the garden is rosy. That is not the position. He should not try to tell us that the concerns of the CII have been dealt with and imply that we are putting up silly arguments. The one company which is reasonably happy is the Irish Sugar Company. Telecom could not be happy, although I do not know what view they have expressed. The situation has changed drastically in relation to equipment in communications exchanges. Gone are the days in most exchanges when the old electro-mechanical equipment was in use. The Minister needs to clarify the definition. It is not in this section, a Cheann Comhairle.

That is what I am trying to check.

The Minister made a passing reference to it and to the various companies. He will have to change the definition later because they are not safe in this situation. He tries to give the impression that the fears expressed by the CII have been allayed but that is not the case. The Minister has maintained throughout this debate that there is no fundamental change but I have gained an admission from him tonight that one fundamental change is taking place.

We should press ahead with this amendment without wasting further time. We are saying to the Minister in good faith that this section will have serious repercussions. I have sought legal advice and I have no doubt as to the interpretation that will be put on this. Despite the Minister's good intentions expressed to the CII, we should not allow a move in the back door, whether the Minister admits it or not. Fundamental change is taking place. The basic valuation base is being expanded and we all know this is designed to bring in more revenue to the Exchequer.

The commercial sector is bearing more than its fair share. It is producing wealth to keep everybody else going. It is working hard under many burdens and this is not the time to increase them. There is a clear admission that this will happen, although I will not quantify it or exaggerate it. Let us do the job in the open. We should not try to pull a fast one or "con" the people into believing that no changes are taking place when there are fundamental changes.

I join with my colleagues who have spoken in support of amendment No. a1. A case has been made by the legal profession, the business community and by Deputy Reynolds, a man of known business experience, and confirmed by the representatives of industry, the Confederation of Irish Industry that the provisions in this Bill are a retrograde step and damaging and expensive as far as industry is concerned at a time when it is going through a deep recession.

The Deputy is making a Second Stage speech. He should stick to the amendment.

I ask the Minister to accept the amendment. I accept that he has given assurances. However, although he may have good intentions that is the only way in which the assurances he has given verbally and in writing to the CII can be copperfastened and written into legislation. It is the only effective way of saving a major increase in the rates of the business sector.

It is very obvious that the reason for this Bill is because of the situation in Cork regarding the oil refinery which has caused enormous problems for Cork County Council, and I envisage even greater problems in that regard. We must widen the scope of existing legislation to take into account the new situation which has arisen which has overburdened processors and the chemical industry which has a fair amount of plant, pipes and cooling facilities uncovered. The manufacturing sector is suffering most and should not be taxed by the back door. The Minister should raise the money in a different form instead of burdening those companies——

I ask the Deputy to speak on the amendment.

I am afraid of what will happen because of the cost factor if this amendment is not accepted. Industry will suffer greatly as a result.

I wish to repeat, for the benefit of Deputy Reynolds, that as far as amendments Nos. a1. and a1.a are concerned, legislative confirmation is provided in the Bill for a practice which has been in existence for 100 years. I know that the ESB have not been there for 100 years——


Write it into the Bill.

I want to put into legislation the practice which has been followed for the last 100 years in valuing cables, pipelines and conduits——

The Minister suggested that there was no change.

I wish to point out to Deputy Reynolds who is getting excited and to Deputy O'Malley in particular that if they took the trouble to read section 7 (1) (a) of the Bill they would see that machinery is specifically excluded——

Why? Everyone is wrong except the Minister.


The Attorney General is too young.

Question put: "That the figure and words proposed to be deleted stand".
The Committee divided: Tá, 60; Níl, 50.

  • Allen, Bernard.
  • Barnes, Monica.
  • Barry, Myra.
  • Begley, Michael.
  • Bell, Michael.
  • Birmingham, George Martin.
  • Bruton, Richard.
  • Burke, Liam.
  • Carey, Donal.
  • Conlon, John F.
  • Connaughton, Paul.
  • Coogan, Fintan.
  • Cooney, Patrick Mark.
  • Cosgrave, Liam T.
  • Cosgrave, Michael Joe.
  • Coveney, Hugh.
  • Creed, Donal.
  • Crowley, Frank.
  • D'Arcy, Michael.
  • Deasy, Martin Austin.
  • Desmond, Eileen.
  • Dowling, Dick
  • Doyle, Avril.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard J.
  • Prendergast, Frank.
  • Ryan, John.
  • Sheehan, Patrick Joseph.
  • Skelly, Liam.
  • Enright, Thomas W.
  • Farrelly, John V.
  • FitzGerald, Garret.
  • Flaherty, Mary.
  • Flanagan, Oliver J.
  • Glenn, Alice.
  • Harte, Patrick D.
  • Hegarty, Paddy.
  • Hussey, Gemma.
  • Keating, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McLoughlin, Frank.
  • Manning, Maurice.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Molony, David.
  • Moynihan, Michael.
  • Naughten, Liam.
  • Nealon, Ted.
  • O'Brien, Willie.
  • O'Leary, Michael.
  • O'Sullivan, Toddy.
  • O'Toole, Paddy.
  • Owen, Nora.
  • Pattison, Séamus.
  • Spring, Dick.
  • Taylor-Quinn, Madeline.
  • Timmins, Godfrey.
  • Yates, Ivan.


  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Brady, Gerard.
  • Brennan, Mattie.
  • Brennan, Paudge.
  • Brennan, Séamus.
  • Browne, John.
  • Burke, Raphael P.
  • Byrne, Hugh.
  • Byrne, Seán.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Cathal Seán.
  • Cowen, Brian.
  • Daly, Brendan.
  • Fahey, Francis.
  • Fahey, Jackie.
  • Faulkner, Pádraig.
  • Fitzgerald, Liam Joseph.
  • Foley, Denis.
  • Gallagher, Pat Cope.
  • Geoghegan-Quinn, Máire.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Kirk, Séamus.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • McCarthy, Seán.
  • McEllistrim, Tom.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M. J.
  • Noonan, Michael J. (Limerick West)
  • O'Hanlon, Rory.
  • O'Keeffe, Edmond.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond J.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Treacy, Noel.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.
  • Wyse, Pearse.
Tellers: Tá, Deputies G. Birmingham and McLoughlin; Níl, Deputies Browne and P. Gallagher.
Question declared carried.
Amendment declared lost.

Amendment No. a1.a cannot be moved. Amendments Nos. b1, 1, 2, a2.a, 2a and 4 will be taken together, by agreement. Amendment No. a2.a is an alternative to No. 2, amendment No. 4 is an alternative to 2a, amendments No. b1, Nos. 1, 2, a2.a, 2a and 4 will therefore be taken together.

I move amendment No. b1:

In page 2, subsection (1), in the Schedule, to delete the reference number "5." in column (1) and all words from and including "Plant falling" down to and including "Valuation Act, 1985)." in column 2.

The purpose of the amendment is to limit the power of the Minister to add to the Schedule or to include for valuation purposes matters that hitherto have not been included. Much of this ground has been covered already but, as is clear from the amendments, it follows that the sections in the Bill which we are proposing to amend or to delete, were inserted for the purpose of enabling the Minister of the day — other Ministers might not give the bland assurances this Minister has given — to add to or to amend the Schedule or to include matters not now included.

Let us look at the first amendment. I am proposing to delete the reference in column (1) and all words from and including "plant falling" down to and including "Valuation Act, 1985)." in column 2 of the Schedule. We are not satisfied with the definition of "plant" and we are not reassured by the Minister's intent in the amendment he proposes to introduce on Report Stage, because that will only extend the valuation base in regard to fixtures and structures associated with premises, etc. We are not satisfied that these items were ever within the valuation base under the original Act or within the determination of court decisions. Therefore, we are not prepared to give an opportunity to this Minister to do any more in the future than he was empowered to do already, a Minister who would try to use these powers to extend valuations to matters not now covered.

The second amendment in my name proposes, in page 3, lines one to four, to delete subsection (2). I want to delete this subsection because it states very sharply that the Minister may by order add to the Schedule a category of fixed property specified in the order or vary the description of any such category. We are not prepared to allow such an all embracing subsection to be passed here so that somebody might say that the intention of the legislators——

The amendment the Deputy is describing is not in the group.

It is related. In another amendment we propose to delete subsections (2) and (3). We have made it as clear as a pikestaff that we will not allow the Commissioner of Valuation to value plant falling within any of the categories of plant specified in the Schedule, as provided for in subsection (2) of section 7. The Commissioner of Valuation is given wide discretion. The subsection I have referred to imposes an obligation on the Commissioner, because it states:

The Commissioner of Valuation shall value plant...

So much for the good intentions and the expressions of the valuation office staff during their national tour. That subsection says so clearly that a primary school child could understand it that the Commissioner shall do these things — he is obliged to. The Minister tells us we are mistaken and he gave us an assurance. As Deputy Reynolds indicated, the Minister assured certain interests. It is not for this side of the House or for any side of the House to make of this a partisan political issue but we are all aware that the CII, who are a very responsible representative group, have not been reassured and that even in the past few days they have indicated to the Minister that they are very concerned that should the Bill pass with the amendments tabled by the Minister it would be giving effect to the fears they have been expressing. I am not questioning the good intentions of the Minister but this must be said.

This relates to subsection (2) of section 7 because it again imposes the obligation to value plant. It provides for the valuation of plant being "so attached or secured to the premises comprising the mill, manufactory or building concerned as to be of a permanent or semi-permanent nature". The word "permanent" has a meaning both in fact and in law that most of us could understand and which the courts would interpret in a clear and objective way but what are the words "semi-permanent" meant to convey? Such terms in legislation do nothing to clarify the intention that eventually would have to be interpreted by the courts. Then there is reference to plant of such size, weight and construction as to be of a permanent or semi-permanent nature. Will the Minister define what he means by those words, not that his definition will be final determinant of what the words will be intended to mean? I cannot imagine anything more vague or anything that could be interpreted so widely as a phrase of that kind.

It will not be the job of the Minister or of the officials in the Valuation Office to interpret words in the legal sense but there is an Attorney General and there is a staff of legal advisers available to the Government. If the Minister were to ask those advisers how broad can be the interpretation of the words "semi-permanent", they would have to admit that they would have no idea of how broadly it would be interpreted. The chances are that the court might strike it down in any event on the grounds that it was not capable of reasonable interpretation. In that case even the Minister's intentions would be defeated. Again we are asking him to delete this section.

I must deal also with section 8 in respect of which we are seeking the deletion of the reference, number "1" in column (1) and all words from and including "all constructions" down to and including "or electric current" in column (2).

In effect what we are being asked to do here is to include in this valuation base all constructions affixed to the premises "comprising a mill, manufactory or building (whether in or below the ground) and used for the containment of a substance or for the transmission of a substance or electric current". It is clear, as the Minister has acknowledged, that such constructions affixed to premises used for this purpose, which in this instance would apply to pylons, cables and so on, have not been included in the valuation base. As the Minister acknowledged this evening they have not been included in the liability for valuation in terms of the ESB who pay a levy in lieu of rates but it has never before been attempted to include those areas within the category of rateable plant or equipment. I shall go no further than that for the moment because I should like to allow other Deputies the opportunity of pointing out their reservations on these and on some of the other amendments. What I have said already is enough to indicate that the amendments are very far reaching and very dangerous and would have a very damaging effect on the capacity of industry by reason of the extension of the valuation base.

The Dáil records will show that I spoke on the Second Stage because I was advised by some associates in the CII of the potential damaging effect of the Bill to those who are now the sole group in the community paying rates by way of the inclusion of certain types of plant that were being included as being eligible for rateable valuation but which were not included previously. At that time I asked the Minister to ensure that the worst effects feared by the CII would not be realised. I shared the concerns they expressed at that time. I rise to speak now because the very same people who approached me then approached me since and informed me that all the matters which were raised by many Deputies at that time and which were subjected subsequently to detailed discussions by officials of the Department of Finance and representatives of the CII have been successful. My understanding is that all matters pertaining to the clarification for rateable valuation purposes of plant were clarified to the satisfaction of the CII. That is indicated in their newsletter of early October last. My understanding is that these issues were clarified either by way of amendment to the Bill or by way of correspondence from the Minister to the confederation.

The Deputy's understanding was correct.

I have it in writing from the parties concerned that the problem was resolved but I am now puzzled about the whole matter. No later than the middle of last month the CII informed me that the matters about which they had legitimate concerns were being resolved. I received no subsequent notification from them that they are dissatisfied.

There is a fair reason for that. The Minister's amendment was only made available yesterday or the previous day so when they saw the amendment they realised that it did not give effect to the good intention.

The headquarters of that office and this building are not poles apart. The clarification was not only by way of proposed amendments to the Bill but it was given in writing by the Minister to the confederation and in the Dáil during the course of the debate. I assume that whatever written commitment was given by the Minister still holds good, that there is good faith on both sides in this matter, and that the problem as outlined on Second Stage has now been clarified.

I hate to have to shatter Deputy Yates' innocence but I am afraid his belief in the goodness of man is misplaced on this occasion. The CII are in an appalling state about this matter. They were given certain assurances which they accepted in good faith, but they now find that the assurances are not being honoured and that letters from Ministers are useless. Assurances given in the Dáil by Ministers about their intentions are useless. In our jurisprudence a court, in interpreting an Act, can only go on the words of the Act. It cannot have recourse, as is sometimes done in Continental jurisdictions, to what was stated in the Legislature to be the intention if the intention is not clear. Even if it is not clear the court must confine itself solely to the words of the Act.

If this Bill is passed in its present form with only the amendments which the Minister now proposes to introduce on Report Stage, all the worst fears of the CII will be confirmed. That is the position of the CII as confirmed to me today in detail and to other Members of the House. It is a matter of great concern. I ask Deputy Yates to use whatever additional leverage his position at the moment might give him to have these amendments made. I am confined to simple open argument. If I cannot convince somebody to do something that is obviously necessary, then I have failed but from experience I have found that these difficulties are often resolved behind closed doors rather than in this Chamber. I urge Deputy Yates to use whatever powers he has behind closed doors to effect the necessary amendments which his friends feel are necessary and which have not been delivered on.

It is interesting to see in section 7 (2) and (3) that it is those two subsections that give rise to the Minister's first proposed amendment on Report Stage. If the Minister is amending those two subsections the place for him to do it is here and now. Perhaps the Minister is not in the House long enough to know all the ins and outs of procedure, but it is not helpful to the House, to put it mildly, to have the only ministerial amendment of any consequence, and it is not of much consequence, proposed only on Report Stage because there is little or no debate as a result. Since section 7 (2) and (3) are the two subsections which are being amended slightly by the Minister, they should have been amended on Committee Stage. It is an abuse of the procedures of the House not to have done that. The House should express its resentment at that.

On the earlier amendment I made a number of points and the Minister replied to one only by asking what I was getting so excited about because machinery was excluded in one of the sections of this Bill and therefore machinery would continue to be excluded. Machinery which was always excluded and which will still be excluded will now be in a much narrower category as a result of this Bill. In his own amendment the Minister defines plant. The Minister also gives a definition in the Schedules in section 3 and section 8. These are all things that are plant and have become rateable as opposed to what was generally regarded as machinery before this Bill was introduced, and was not rateable. One only has to look at the Minister's amendment to see how he broadens the definition of rateable plant as opposed to unrateable machinery.

Something which is of such size, weight or construction as to be of a permanent or semi-permanent nature is to be considered plant. Somebody down in the High Court or the Supreme Court will make a lot of money arguing about that definition. That is so vague that it is impossible. It would include machinery that would have to be fixed in or concreted in, for instance, a machine which vibrates, and engine or processing plant. That is machinery; it just happens that it must be secured in that way. It was machinery since 1852 but, on the passage of this Bill in this form, it suddenly becomes rateable plant. The machinery need not even be permanently fixed, but it will be considered as plant if it is semi-permanent or if it is big enough.

What is big enough? What is heavy enough?

How many days will someone have to spend in the High Court debating what is big enough or heavy enough or small enough to be machinery or plant? That definition, with all due respect to the Minister, makes an unclear situation worse.

We are told that this Bill is introduced because of High Court decisions which the Commissioners of the Valuations Office, the Revenue Commissioners or the Department of Finance did not like. They will like this less. It is unfair to industry that they will have to litigate day in and day out over this thing. There will be dozens of these cases and they will be waiting for test cases to be decided. In the meantime they will have to make provision in their accounts for huge amounts of rates, whether or not they are ultimately due. It is most unsatisfactory. Industry needs every encouragement it can get and not this sort of nonsensical persecution by bureaucrats.

The Minister for Finance has many good qualities but common sense is not uppermost. I wish that quality on him. In my time here, I have seen many Ministers for Finance in this House and the best of them were not necessarily the brightest of them. They were common sense Ministers. A common sense Minister for Finance would not wear this nonsense for five minutes. He would say: "Go away, and if there is justification for making a major change we will make it by repealing these idiotic 1852 and 1860 Acts". I am sure they were grand in their day when the only mode of power was water, when one had to build on a falling river because there was no other way you would get any power. Then they had to make amendments in 1860 because suddenly steam-power began to become available where it was not before. Then there were all kinds of complications when electricity came along. It really is futile to try to retain these things, to go through the fiction that we are clarifying the minds or the intention of the Legislature of 1852. Certainly we are doing no such thing.

The other single point the Minister made in replying to the last amendment was that he was aware that the ESB was not there for 100 years but that that did not invalidate his point, that the practice was that all these things in No. 3 of the Schedule to section 3 and in No. 1 of the Schedule to section 8 — which I propose under amendment No. 2 to delete — were not in fact the practice. The truth of the matter is that they were not the practice; they are not the practice today. It is simply manifestly untrue for the Minister to say that these make no difference——

On a point of order, if I may. Deputy O'Malley is saying to the House that something that I said is manifestly untrue. He is accusing me of telling an untruth and he is in fact not quoting what I said. What I said on the occasion to which the Deputy is now referring was that the practice in valuing cables, pipes, conduits and so on is now and has been for 100 years what is in the Bill here. As I said in that connection, what I am proposing in the Bill is to give statutory legal effect to what has been the practice rather than the theory for the last 100 years.

With respect, that is not the case. These conduits and pipes are not subject to rateable valuation at present, they simply are not, and it is not enough for the Minister to say that that has been the case for 100 years. Pylons are not subject to rateable valuation nor are transmission lines. I know the ESB did not exist for 100 years — that does not invalidate the argument — they have existed for 59 years and they have never paid rates on their transmission lines. They will now have to pay rates on their transmission lines under the first category in the Schedule to section 8, the Schedule of the 1860 Act — which I propose to delete — and which reads:

All constructions affixed to the premises comprising a mill, manufactory or building (whether on or below the ground) and used for the containment of a substance or for the transmission of a substance or electric current.

It speaks for itself.

The transmission of a substance, for example, gas, or the transmission of electric current. That is now a category of plant that is rateable. It is not currently rated but it will be if this is passed. Therefore I suggest, with the greatest respect to the Minister, that it is manifestly untrue to say that it makes no change from the current practice. It has to be manifestly untrue to say that because it makes a major change from the current practice. I suggest that these words be deleted and that is the effect of amendment No. 2. It is simple. One must ask have words got to the stage that they no longer mean anything or they mean only what somebody wants in his own mind to think or wish that they mean? But all the assurances in the world mean nothing. What will matter is what words are in this Bill if and when it is passed by this House. The High Court and the Supreme Court will have to interpret it and there will be a flood of cases. In the meantime some industries will have rates demanded from them that will be three, four, five or six times greater than what they are currently paying and that will put quite a number of them down the drain. That is tragic. I ask the Minister — there is nothing political in this and there is nothing in it for me — for goodness sake to take another look at this and not have himself led into this situation which is so ridiculous and damaging.

There was a feeling one time that Departments existed for the purpose of encouraging people of enterprise in this country. One could not get that feeling today with many Departments. This sort of thing is just crucifying people. What does the House think the reaction will be on firms that have been here for some time when suddenly this change is demanded of them, when instead of paying perhaps £5,000 a year in rates suddenly they will be paying £25,000, £50,000 or £100,000? There is a limit beyond which they cannot tolerate that kind of attitude within an administration or a country. The time has come to call a halt to this because it simply is not good enough.

The Minister has no reply to these points, other than to give a sort of bland assurances that are meaningless, that fly in the face of all the facts and in the face of what is stated here.

The Minister's proposed amendment to subsections (2) and (3) of section 7 is a restatement of what is already there, but in my opinion, a restatement in a way that makes it even clearer that various things that were not subjected to rating before will now be subjected to rating. It makes it even clearer. The existing subsection (2) is rather vaguer than what he is now proposing.

That is why we are all here this evening when we thought we would not be——

Yes, we thought the whole thing would be agreed. There is a way out for the Minister — I am not saying it is the only possible way out — but it is a simple way out, that is that if amendment No. 4, which is now subject to discussion, is accepted — notwithstanding all these problems in the earlier sections and so on — that will get over a lot of it. It will not get over all of it, it will get over it as far as industry is concerned, not as far as people like the ESB, Bord Gáis, Bord Telecom and so on are concerned. But it will get over it as far as industry is concerned because the words contained in the amendment read:

This Act shall not apply to process plant or to any form of plant or machinery used to convert or change the substance of any material whether by way of manufacturing or otherwise.

That will cover things like distillation vats, for example, as well as things where there is a direct process involved. If the Minister is sincere or really means what he says, that it is not the intention to include process plant, then let him accept that amendment. It will get over that. There will still be a problem in regard to the ESB and all the rest of them. I do not know what steps the ESB are taking. They are a State body and it is easier for them to make their case through their Department. One would have thought they would have done it because, it seems to me that there will be an extraordinarily heavy additional imposition on them——

As long as they do not pass on the charges.

Of course it lies only temporarily with the ESB. Ultimately it will lie on all electricity consumers in the country. That covers most points in these amendments. It may not cover every one of them because they are complicated but it covers most. The fact of the matter is that I have here before me the assurance of a man who has been dealing with these matters all his life, the assurance that they greatly extend the present scope of the law. One of the points he makes, for example, is that it will be very unfair because it will be very uneven. It will be of only limited benefit to some rating authorities who will get only a few hundred thousand pounds extra, whereas others, for example Cork, will get millions of pounds extra every year from these industries, and he thinks that is very unfair. Some of the smaller, less developed counties obviously will get very little because, unfortunately, there will not be many industries of the kind concerned in them.

He makes the point that he is a man of very considerable experience. He considers that it is quite possible that this Bill is not constitutional in that it will increase the base on which rates are assessed for some industries while not affecting all other types of industry and non-manufacturing business. You, Sir, will recall the Wexford farmers' case a few years ago where they challenged the constitutionality and validity of the rateable system on agricultural land which had remained basically unchanged since Griffith's valuation. The Supreme Court declared it to be unconstitutional on the grounds that it was not comparing like with like, that it was an arbitrary fixing of valuations done in the 1840s and 1850s when agricultural practise was totally different from what it is now.

He is a man of great experience. He has spent his lifetime in this field. He makes the point — he is probably right — that exactly the same principle is involved here. Suddenly there is to be an arbitrary placing on certain types of industry of a huge additional imposition which will not be placed on other industries. On the basis that the Supreme Court probably will follow their own decision in the Wexford farmers' case, on the face of it they are likely to find this procedure of a considerable expansion of the rateable base so far as industry is concerned as potentially unconstitutional also. It makes this thing rather futile.

Apart from the legalities of the thing, how can the Minister justify an extremely heavy additional imposition on certain industries and none on others? I do not think it can be justified. It all depends on the type of plant and machinery they are using. It is entirely fortuitous as to which kind is used in one industry and which kind is used in another. Perhaps in some industries very good machinery and plant will be thrown out because they come within these definitions and a different kind will be imported at great cost because it will be classified as machinery rather than plant in accordance with these definitions. If you have two pieces of machinery that are essentially of the same nature but one is small and portable and the other because of its size is regarded as difficult to move and therefore semi-permanent, the small one is free of rates and the big one is subject to rates. That cannot be disregarded by the High Court when they are looking at these matters. The definition proposed now is making a bad job worse.

I ask the Minister to consider these points. They are not made lightly. I do not come into this very often, I do not argue the details of legislation very often, but when I do I am usually right.

I am only an ordinary man. I have no legal background, needless to say, but over my long years here in this House my interpretation of any Bill that went through this House was on what was in the Bill, not what was supposed to be in it, or on what interpretation was going to be placed on the Bill. It was on the wording of the Bill. The Minister's interpretation and possibly the interpretation of the law and the courts are another thing.

I have been here a long time now and I cannot understand this. It was not general procedure here to have an amendment such as the Minister is now proposing to bring in on Report Stage brought in like that. I do not want to use the words "sleight of hand"——

——but "lack of etiquette" might be a better expression. I do not intend to be derogatory but if that is it, so be it. We were not accustomed to that but probably now it may be put down as due to bad advice or perhaps an attempt to get the Bill through quickly. On Report Stage we can speak only once.

Many industries in the midlands where I come from have been in touch with me in regard to this matter. Members who spoke in the House did not speak in a political way. They spoke about the consequences it will have for industry and the owners of industry. I would like every Bill that goes through here to be seen as in the best interest of the community.

The wording is flawed and will be interpreted in several ways. If the Bill is passed in its present from, with all due respect to the legal people, it will be a bonanza for them. They will bore holes in it in every court, the Supreme Court, the High Court, the lot. The Minister's wording on this goes back 100 years. We have teased out that underground piping, gas mains, electricity and BTE are all to be involved in this and to be rated. They have a very easy option open to them. According to the figures here, the ESB may have to add £15 million per year to the £22 million. To whom do they pass that on?

To you and me.

To the hard pressed industrialist — we are dealing with him first because that is what the Bill is all about — plus the ordinary private customer. BTE serve industry. Many people hope that gas can be brought into industry and thus save costs. Now An Bord Gáis will have to pass this on. Where will we be then? The industrialists will be crippled again and the ordinary consumer will be drawn into it also. The consequences of this will be far reaching.

I cannot understand why the Minister does not put the exact wording that we suggest into the Bill. I will go further. If he brings in another amendment we will look at that amendment to see if it will meet the criteria we want it to meet in the national interest, because that is what it is all about. Many companies are hard pressed to keep their heads above water and there is little need for me to elaborate on that. Why is it that a Bill such as this is full of legal jargon? A man remarked to me on one occasion that it was up to the legal people to make right wrong and wrong right but who pays? A man who approached me about a case I was interested in remarked that had I been in court No. 4 I was right but that court No. 2 was no good. Legislation like this will result in people having to go through the courts and that will be a sad day for them.

Members on this side of the House have put a great deal of thought into the Bill because of its importance. We are concerned about the effect it will have on companies and on the workforce. If plant is of a vibrating type and has to be set in reinforced concrete, will it be eligible for rating? My view is that it will and that small plant which is not moveable is not. Will industrialists have to replace such plant because of the danger of being crippled with rates demands? They may have to buy new equipment to avoid having to pay rates.

As long as I am a Member of this House I shall not agree to any legislation that does not spell out precisely what is intended. I accept the Minister's good faith to a point but not when it comes to legislation. In today's arena many pieces of legislation passed by the House have been contested successfully in the courts. It is up to us to see to it that we do our job correctly. The provisions in the Bill represent a major change. If it is not, as we have been given to understand, then I wonder why industrialists are trembling with fear. In my view they see they will have to pay thousands of pounds in rates when the legislation is passed. Deputy Yates is being slightly naive when he says that everything will work out satisfactorily.

In writing.

That has been altered. As late as today the CII have announced that they see difficulties in regard to the legislation.

Now is the time for all good men, defenders of private enterprise, to lend their support. Deputy Yates is clearly one of those.

Most of us on this side of the House have no difficulty in defending private enterprise.

It is what is written into a Bill that will count after it has passed both Houses. The opinion of valuers in the Valuation Office does not count. Officials there come and go.

Like Ministers for Finance.

And some of us stay longer than others.

It is too bad for the country that the Minister is staying so long.

We are all wondering why the Minister is still there.

There is no difficulty at all.

Some opt out.

The interpretation of new appointees to the Valuation Office may be different and they are entitled to do that. Such officials would be quick to point out to me, if I queried their interpretation, that I was in the House when it was being debated and that I should understand it although my view of the provisions would be different from theirs. Not too long ago a civil servant whom I will not name told me that it was open to the people I was interested in to take another course of action. We all know what he was talking about — going to the law courts. I hope the Minister considers the points we have raised before the debate on the Bill resumes. There is no political motive behind our intentions. We want to ensure that when the Bill is passed we will know where we stand in regard to its provisions.

I am amazed that even at this late hour we are not making any impression on the Minister.

We are not making much progress either.

I hope that, before the debate resumes on the Bill, the Minister will consider the points we have raised. Deputy Yates holds the view that the provisions have been accepted by private enterprise, manufacturing industries, the CII and so on but I can assure him that that is not the case.

The CII made three points that very few Deputies opposite adverted to.

I will return to that later. Why is it that the Minister gets so hot under the collar when I refer to such matters? If that was the position the Minister would not find me, or my colleagues, here at 11.30 p.m. We have the same common sense approach to this matter as the 400 members of that body and we are expressing that concern in a legitimate fashion. The Minister should not try to convince the House that everything in the House is rosy when that is not the case.

The Minister said I had not read section 7 but in the short few minutes available to me to consider it I have come to the conclusion that it is even more dangerous than some of the other provisions. How would one define in law the following, "...manufactory or building concerned as to be of a permanent or semi-permanent nature or, if free-standing, being plant of such size, weight and construction as to be of a permanent or semi-permanent nature"? That is beautiful bureaucratic language. The Minister has tried to convince us of his intentions but he has indicated to us that, in the case of easements, there is a change although we have heard for the past six months that there is no change.

In the future we will show the Government very many more changes that are not obvious tonight in relation to the processing industry. The fears that are held in many processing industries are genuine. I cannot understand why there are not fears in relation to the ESB and Bord Telecom. Perhaps they could pass the expense back to the consumer and the hard pressed industrialist and further weaken the competitiveness of Irish industry. There is far too little competitiveness at the moment.

Progress reported; Committee to sit again.