An Bille um an bhFichiú Leasú ar an mBunreacht (Uimh. 2), 1999: Céim an Choiste agus na Céimeanna a bheidh Fágtha. Twentieth Amendment of the Constitution (No. 2) Bill, 1999: Committee and Remaining Stages.

As the substance of the debate relates to the wording of the proposed constitutional amendment contained in the Schedule, the sections of the Bill being merely technical, it is a long standing practice in Bills to amend the Constitution that the sections are postponed until consideration of the Schedule has been completed.

I move: "That consideration of sections 1 and 2 of the Bill be postponed until the Schedule has been disposed of."

Question put and agreed to.
AN SCEIDEAL.
SCHEDULE.

We now proceed to amendment No. 4. Amendments Nos. 1, 2 and 3 are consequential, therefore amendments Nos. 1 to 4, inclusive, may be taken together. Is that agreed? Agreed.

Tairgím leasú a 4:

I gCuid I, leathanach 7, líne 4, "28A" a scriosadh agus "32" a chur ina ionad, agus

I gCuid II, leathanach 7, líne 19, "28A" a scriosadh agus "32" a chur ina ionad.

I move amendment No. 4:

In Part I, page 6, line 4, to delete "28A" and substitute "32", and

In Part II, page 6, line 19, to delete "28A" and substitute "32".

The Government is proposing that the amendment to the Constitution should appear in the Constitution as a new Article 28A. I stated in my Second Stage speech yesterday that this is the first time an article will appear in the Constitution enumerated as an "A". It is untidy and suggests it was an afterthought, but there is a way to avoid it. Article 32 relates to the exercise and performance of functions by the President and could be renumbered as a section of Article 31 which deals in detail with the functions of the Council of State. Article 32 also relates to the functions of the Council of State. The proposed new Article could then appear as a distinct Article 32 in the Constitution.

This is a technical matter upon which I have no comment to make.

The amendment seeks to renumber the proposed Article 28A set out in the Schedule to the Bill as Article 32. Amendments Nos. 1, 2 and 3 are related to this amendment. There is no reason for the renumbering beyond some historical connotations which some may attach to Article 2A of the Saorstát Éireann Constitution under which special military tribunals were established.

The use of this formulation of the letter A to denote a new section inserted by later legislation has been standard drafting practice for decades across almost all legislative codes. It has been used at European level in different amendments of the treaties establishing the European Union. I am advised this approach to numbering in the Bill is satisfactory. Future amendments inserting new concepts in the Constitution, such as a constitutional provision for the Ombudsman as recommended by the All-Party Committee on the Constitution, would be likely to generate more A-denoted Articles as there is no obvious Article in existence to which they can be attached.

Deputy Gilmore's solution in the case of local government is to combine the text of Articles 31 and 32 and to then assign Article 32 to local government. Were we to follow this course, more Articles would be merged to free up numbers to cater for new insertions in the Constitution. This is not satisfactory and it is better to follow accepted drafting practice. I accept there are some difficulties in adopting a Constitution which is 60 years old to cater for concepts which have developed in recent years. Perhaps the solution lies in a new Constitution where, in the overall framework, the various matters can be dealt with in a more logical sequence and with a proper numbering system. However, for the present, the numbering of the new Article as Article 28A follows established drafting practice. This formulation may well be needed again. It has been used by all Governments in amending various Bills and at European level. In the circumstances, I ask the Deputy to withdraw the amendment.

We have limited time for Committee Stage so I do not propose to use it to argue this point. However, the fact the proposed amendment appears in this manner indicates it has not been given a great deal of consideration by the Government and that little effort was made to find a tidier way of accommodating the amendment in the Constitution without opening up a new form of enumeration for Articles of the Constitution. I do not propose to press the amendment. I withdraw it.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Amendments Nos. 5, 6 and 8 are related and all may be discussed together by agreement.

Tairgím leasú a 5:

I gCuid I, leathanach 7, líne 5, "an ról atá ag rialtas áitiúil" a scriosadh agus "prionsabal an daonlathais áitiúil agus uime sin beidh an príomhról ag rialtas áitiúil" a chur in a ionad,

agus

i gCuid II, leathanach 7, líne 20, "role of local government" a scriosadh agus "principle of local democracy and therefore local government shall have the main role" a chur ina ionad.

I move amendment No. 5:

In Part I, page 6, line 5, to delete "an ról atá ag rialtas áitiúil" and substitute "prionsabal an daonlathais áitiúil agus uime sin beidh an príomhról ag rialtas áitiúil",

and

In Part II, page 6, line 20, to delete "role of local government" and substitute "principle of local democracy and therefore local government shall have the main role".

During the Second Stage debate yesterday I stated that the wording of the proposed amendment is weak and could undermine rather than enhance the principle of local democracy and government. The Government proposes the State will recognise in the Constitution:

. . . the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.

As I stated yesterday, it is a curious way of expressing recognition for local government because it is an organ of the State and part of its governance. It seems nonsensical that the State recognises this in the manner stated in the Bill.

I would have thought it preferable to recognise in the Constitution the principle of local democracy and to make it clear that the system of local government has the main role in providing a forum for the democratic representation of local communities. I draw the distinction between local government providing the main role and it providing a forum for the democratic representation of local communities because, in the Government's proposed wording, local government is only recognised as providing a forum for the democratic representation of local communities. A number of parallel systems have developed in recent years, such as the partnership system and various types of partnership bodies developed at local level, which arguably parallel the work of local government to some extent. There is a strong argument for bringing all that under the umbrella of local government.

To express the recognition of local government in the Constitution as providing a forum suggests that there may be fora other than the system of local government for the democratic representation of local communities. If it were to state, for example, that local government was the forum for the democratic representation of local communities, then it would afford to the system of local government a formal status, but the wording is loose and does not give to local government the type of recognition it should have. I propose in the amendment that the Constitution should recognise the principle of local democracy and the role of local government should be clearly expressed as providing the main role in the democratic representation of local communities.

The other two amendments being discussed with this amendment and which relate to it concern the inclusion of regional government in the Constitution. There is no constitutional recognition of any type of regional authority. We know from discussions we have had that the Government is supposed to be committed to the concept of regionalisation and that regional authorities and the development of regional bodies will be increasingly important. What passes for regional authorities and regionalisation at present is a joke. There are different regional authorities for different functions, such as regional health boards, regional tourism boards and regional fishery boards. FÁS and IDA Ireland also have regional boards. On top of that are regional authorities to which local authorities contribute and the Government now proposes to add another layer in the form of group regions. This is how they were described in the Government's press statement when it announced the initial formula which included counties Kerry and Clare in the western region. That was subsequently revised at the behest of the European Commission.

If we are to go to the trouble of giving local government formal recognition in the Constitution, we should do it in a way which is meaningful and not in the watered down, half-hearted, meaningless way which is provided for in the Bill.

I support Deputy Gilmore's amendment No. 5. The text proposed by the Deputy is far clearer in its scope and intent than the Government's text. It is important, as Deputy Gilmore stated, that we should emphasise that there is a principle involved here, that is, the principle of local democracy. Although I am not sure that the principle of local democracy is a term of arts which is found in any of the academic texts, nevertheless it has a clear meaning in this context.

It is useful also to assign the main role in certain areas to local government, as Deputy Gilmore stated. In fact, although one recognises the value of partnership and other structures which have developed, my fear is that what has developed in recent years is not so much a set of parallel functions between local government and other bodies but the replacement of some of the functions of local government by other moread hoc arrangements, which is what has led me to table an amendment to which we will come later. From that point of view, I support amendment No. 5.

In amendment No. 6, unless I am mistaken in reading the text, I would have preferred it had Deputy Gilmore located his reference to "regional" in another point because, as I understand it, he proposes that the text should state that the State recognises the principle of local democracy and, therefore, local government shall have the main role in providing a forum for the democratic representation of local and regional communities. The present form of local government does not recognise regional communities and I am not sure there is a way in which regional communities may be recognised. The Government stated that it believes legislation is not required to set up the regional structures which will be needed following decisions of the European Union. That is a mistake. I am sad to see that is happening, but that is a matter which need not be dealt with within the ambit of the Bill. Without reservation, I support amendment No. 5. I am not sure that I see in quite the same way the urgency of amendment No. 6.

These amendments were considered but it has been decided not to accept them. With regard to amendment No. 5, it was felt that reference to local government having the main role in providing a forum for democratic representation could be open to interpretation perhaps at odds with the intention of the amendment. For instance, the use of the word "main" implies that some other system-structure also has a role in providing such a local forum for democratic representation and this constitutional implication could perhaps be a recipe for possible tensions or conflicts. Also non-elected groups might legitimately argue that they also have a role in providing such a forum and that this is implied by the constitutional provision, albeit by default. The reference to the principle of local democracy could also be problematic as to its actual meaning.

Article 28A is aimed at recognising the principle of local government. It specifically refers to a democratic forum, directly elected local authorities exercising a range of functions promoting the local community by their initiatives with elections held at least every five years. The suffrage for local elections reflects the role and ambit of local government and Deputy Gilmore's amendment does not add to the article.

Amendments Nos. 6 and 8 relate to the insertion of the word "regional" in relation to communities and the exercise of functions. However, this constitutional provision clearly relates to local authorities, the members of which will be elected on 11 June by direct vote of the people. Regional authorities are not so elected. Regional authorities are in a different position to local authorities. The current regional authorities have been in existence for about five years whereas local authorities have existed for 100 years. Regional authorities, unlike local authorities, were not established by primary legislation but by an order of the Minister under the Local Government Act, 1991. Their members are appointed not by direct vote of the people but by the members of the constituent county and city councils from among themselves. Also the reference to regional in the Article could perhaps have unforeseen implications for other non-directly elected regional bodies, that is health, tourism and fisheries bodies. The question of constitutional recognition for regional authorities would not, therefore, be appropriate at this stage.

This is at the heart of the criticism of the wording of the Bill. The Constitution should deal with the regional issue. I take Deputy Dukes's point about the manner in which I propose to do it in my amendment, but it is something which needs to be dealt with in the Constitution. As we proceed, particularly in the context of the way in which the EU clearly requires regional policy, regional structures and regional systems of consultation with the public and the economic partners, the Constitution will need to set down some principles and guidelines which underpin the way in which regionalisation is developed. It may well be something to which we must return again. For that reason, I do not propose to press that issue today other than to state that we need to deal with it.

However, I intend to press amendment No. 5 because the argument the Minister made against it in a way is an argument for it. First, he questions my inclusion of the term "local democracy". The Constitution refers to a number of similar terms. The Constitution, for example, recognises the principles of social justice, the family and freedom of conscience. The Constitution contains terms about the concepts of freedom and democracy and the concept of local democracy fits into that framework. In the society in which we live it is certainly as clear and unambiguous a term as, for example, the family, which arguably has a different and more wider meaning now than it did in 1937 when the Constitution was framed. The principle of local democracy should be enshrined in the Constitution.

The Minister's argument against the reference to local government having the main role, in which he stated that this would create an ambiguity and would suggest that there are other bodies or system which have a role in providing democratic representation of people at a local level, is the very point I make in the amendment. The wording proposed by the Government clearly suggests that. If one recognises the role of local government as providing a forum for democratic representation, one is clearly indicating that there are other such forums at local level. That will create confusion. Embryonic systems such as the strategic policy committees are expected to grow and develop and their membership will be wider than the elected members of local authorities. If they develop to a point where they begin to assert that they are providing a forum in a particular area of activity, a constitutional ambiguity will arise.

At a recent meeting of the Committee on the Environment and Local Government, a delegation from the Chambers of Commerce of Ireland made a very good submission. They seemed to be moving towards the idea that some kind of local authority finance committees would be set up which would have a role in determining local authorities' annual estimates, setting of rates and so on and on which chambers of commerce would be represented.

Unless the Constitution makes it clear that it is the elected members of local government who have the main role, the possibility will be created that, at some stage in the future, a parallel or subsidiary body under the local government umbrella may claim it is also a forum of equal status. The Constitution will not distinguish as to which body has the main role in providing the forum for democratic representation at local level. It is important that such a distinction be made; it should be specified that at local level it is the democratically elected local council which has the main role in providing a forum for representation. I am disappointed that the Minister has not been more flexible on this but given the limited time available for the debate, it is probably understandable that we are getting a series of "nos" from the Government.

I support Deputy Gilmore's comments. I cannot see a basis for the Minister's hesitation. We are about to embark on city council, county council, urban district council and town commission elections throughout the country in multi-seat, transferable vote constituencies. We have an entire body of legislation, procedure and practice designed to translate electors' votes into a preference dictated result giving us elected members of local authorities. If that is not an expression of the principle of local democracy, I do not know what is. This amendment merely seeks to recognise that explicitly in the Constitution.

I also support Deputy Gilmore's use of the term "the main role". It must be made clear that a system based on the principle of local democracy has primacy in democratic representation at local level. It is equally important to emphasise that at local as well as national level. I do not believe the Minister's hesitations are in any way founded on a real fear. The proposed amendment sets out clearly and explicitly to give local government a role which is beyond dispute.

The Minister for the Environment and Local Government wrote to the All-Party Oireachtas Committee on the Constitution on 14 October 1998 enclosing a draft text to the effect that, for the purposes of local government, there shall be county councils, city councils and such other bodies as may be provided by law. I accept that the committee's considerations are not binding on the various parties represented in this House in any sense. That is clear from the committee's terms of reference and I am not making a political point to the spokespersons of the other parties.

The text was examined by the committee at a meeting at which the various political interests in this House were represented. The committee expressed concern about the wisdom of too much detail in the specification of local authorities. In its letter of 26 January 1999 to the Minister, the committee stated it was clear from the number of official studies carried out on local government that there was widespread dissatisfaction with the existing structures, their financing, their relationship with central Government and their relationship with the community. Further, the committee stated that from such unstable conditions, new units might come into being. In regard to the original text submitted by the Minister, Members were of the view that a structure based primarily on county and city councils should not be carved in constitutional stone. As a result of that suggestion made by the committee on an all-party basis, the Minister amended the text to provide for a broader recognition of the role of local government in providing a forum for the democratic representation of local communities.

One of the reasons for the anxiety to include a reference to county and city councils in the original text related to the fact that the nomination procedures for the Office of President rest with those authorities. The draftsperson understandably thought it might be desirable to ensure consistency in the constitutional text between the various references to local authorities. The committee correctly expressed the view that this is a time of change in local government.

Deputy Gilmore, in amendment No. 6, refers to the regional aspect of this issue. In my view, the current wording is sufficiently broad to include regional structures. In the context of our Constitution, regional structures are essentially local ones. No strict distinction exists. As it stands, local government encompasses town commissions, urban district councils, boroughs, county boroughs and county councils. There is no reason one cannot add to the list of that type of local structure.

I understand the reasoning behind the Minister's wording of the text before the House. He has decided on a broad recognition of the role of local government in providing a forum for the democratic representation of local communities. That is the core value the Minister proposes to insert into the Constitution. Amendment No. 5 seeks to amend the wording by referring to the "principle of local democracy and therefore local government shall have the main role". The reference to the principle of local democracy does not differ greatly from recognising the role of local government in providing a forum for the democratic representation of local communities. In one sense, we could argue that the proposed wording of the constitutional amendment is simply a more extensive way of encapsulating the principle of local democracy.

Without being disrespectful to Deputy Gilmore, there is an element of ambiguity in the phrase "local government shall have the main role". The main role in relation to whom or what? Is it the main role in relation to central Government or in relation to other authorities?

The main role in providing a forum for the democratic representation of local communities.

Is that not inherent in what the Minister has already provided for?

If it is, what is the problem with stating it explicitly?

It should be clear.

To my mind, it introduces an element of ambiguity if it is saying that local government shall have the main role in relation to the principle of local democracy. It may be a reference to co-operative voluntary organisations which can also play a very important part in local democracy, but the Constitution is a legal text and local government, once this is inserted, can have the only role in that respect.

The Bill contains the wording "the role". Deputy Gilmore's amendment contains the wording "the main role". If anything there is less ambiguity in Deputy Gilmore's wording than in the Minister's.

The Bill states that the "State recognises the role of local government in providing a forum for the democratic representation of local communities". That is a strong statement of principle. Assigning main roles does not add to that.

The Deputy is changing his ground.

Maybe I am but I do not see how it adds to the text.

What about "forum"? What are the other fora?

"The State recognises the role of local government in providing a forum for the democratic representation of local communities". Forum implies a democratic contest for a democratic assembly. That is the reference to forum in this context. It is the first time the word "forum" will appear in the Constitution, although there have been a number of them on an extra-constitutional basis in connection with Northern D504–C1

Ireland. I take it that the reference to a forum relates to the role of local government.

A forum is a context, not a role.

That is a fair point. My main anxiety, however, was to mention the proceedings of the committee which explain the genesis of this text, although matters are being pressed to a further extent.

I appreciate and admire the work which the committee is doing on the Constitution and I value the Deputy's contribution today. The House must decide, however, the wording which is to be put to the people. We must address that today.

There are already a number of ambiguities in the wording. What is local government? We have a system in which the powers and functions of local government are divided between those exercised on an executive basis by city and county managers and, by delegation from them, by their officials, and reserved functions which are exercised by elected members. The recognition of the "role of local government" is an ambiguous term because it is not clear which role is recognised. For example, there was a row in my county council concerning who had the power to sign the motorway order for the south-eastern motorway. Was it the county manager exercising an executive function or the elected members of the council who would grant authority for that? The manager and the council took different views. The council ultimately took a vote which coincided with the manager's view. I could envisage a situation developing from a row of that nature where an issue might have to be tested in court as to whether the elected authority or the manager was the authority in that case.

Does the constitutional amendment help the situation? I do not believe it does. Local government is being recognised as providing a forum. All kinds of fora exist at local level. Within the formal structures partnership bodies, county enterprise boards, area task forces and strategic policy committees have developed. All these will say they are providing a forum for the democratic representation of local communities. What happens when they come into conflict? Does the Constitution make it clear which has the principal role? It does not and the Constitution should make it clear that within the overall umbrella of local government structures, which are not confined to the elected councils, the body elected by the people has the principal role.

An informal system of fora is developing at local and community level for democratic representation. There is a concept of the community. Bodies are now emerging which say that they represent the community. It is an undefined concept and the contribution which those bodies make is extremely positive and is part now of the democratic fabric of our society. The potential for conflict, however, between the fora which are developing for democratic representation at community level and the formal structure of local government is enormous.

The Constitution should make clear which is tje principal body at local level, which body determines what should happen because this has practical ramifications. There are areas where this is becoming an issue – housing policy, estate management and housing allocation – and local communities, through estate management committees and community bodies, are insisting that they be involved. In some cases it is a veto on the allocation of dwellings in places of anti-social activity.

There are areas where fora other than the democratically elected councils are now asserting that they are the fora for democratic local representation. In the two years since they came into being, tension has developed between area partnership boards and the formal system of local government. The Constitution should demarcate that the body which is democratically elected is the principal forum which has the main role. Other fora have a role to play but, when issues have to be decided, the democratically elected body should make the decision.

This is a key issue in this amendment. An amendment to the Constitution which gives a watery recognition to local government is of little value. The text as presented ties up ambiguities which may end up before the courts. Decisions based on this wording could stand local government as we understand and want to develop it on its head.

Democratic representation can be interpreted as relating to direct elections. This is the meaning we intend. The points raised, therefore, about the bodies which are not directly elected are valid but this constitutional amend ment was always intended to relate to directly elected local authorities.

It does not say that.

I am conscious of the work being done by local development bodies but that is a separate issue.

Deputy Gilmore's amendment is loose in its wording. What is the "principle of local democracy"? What is "the main role"? These are a recipe for future difficulties and I am advised that the present wording is satisfactory. Deputy Dukes indicated that it might be difficult to find a legal definition of these terms.

Local government is separate from central government. It is not a sub-unit of Government but operates independently within its own remit. It is the only institution apart from central government with its own revenue raising powers by way of rates and charges. It is the only public institution to which members are elected by direct vote of the people; it draws legitimacy from its local community It is appropriate, therefore, that local government is recognised in the Constitution. I am advised that the wording in section 1 reflects essential features of local government, democratic representation, the carrying out of a range of functions conferred by law on its own initiative and promoting the interests of local communities. The wording of this section, therefore, is sound. It is appropriate, too, that the State recognises the role of local government as set out in section 1. The all-party committee on which Deputy Gilmore's party was represented recommended a simple formulation for local government recognition and we are following that approach.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scroisadh."

Question put: "That the words proposed to be deleted stand."

Ahern, Bertie.Ahern, Dermot.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Cowen, Brian.Cullen, Martin.Daly, Brendan.Davern, Noel.Dempsey, Noel.

Dennehy, John.Doherty, Seán.Fahey, Frank.Fleming, Seán.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Jacob, Joe.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie. McDaid, James.

Tá–continued

McGennis, Marian.McGuinness, John.Martin, MicheálMoffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Flynn, Noel.

O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Rourke, Mary.Power, Seán.Ryan, Eoin.Smith, Brendan.Wade, Eddie.Wallace, Dan.Woods, Michael.Wright, G. V.

Níl

Barnes, Monica.Barrett, Seán.Bell, Michael.Belton, Louis.Bradford, Paul.Broughan, Thomas.Browne, John (Carlow-Kilkenny).Bruton, John.Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.De Rossa, Proinsias.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Finucane, Michael.Flanagan, Charles.Gilmore, Éamon.Gregory, Tony.Hayes, Brian.

Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.Howlin, Brendan.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McManus, Liz.Mitchell, Olivia.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Shea, Brian.O'Sullivan, Jan.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Timmins, Billy.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Barrett and Stagg.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diultú don leasú.
Amendment declared lost.
Níor tairgeadh leasú a 6.
Amendment No. 6 not moved.

Amendments Nos. 7 and 10 are related and may be taken together.

Tairgim leasú a 7:

I gCuid I, leathanach 7, líne 7, "do na comhaltaí tofa" a chur isteach i ndiaidh "dlí",

agus

I gCuid II, leathanach 7, líne 23, "on the elected members" a chur isteach i ndiaidh "law".

I move amendment No. 7:

In Part I, page 6, line 7, after "dlí" to insert "do na comhaltaí tofa",

and

In Part II, page 6, line 23, after "law" to insert "on the elected members".

This amendment is in keeping with the spirit of the last amendment debated. It seeks to amend paragraph 1 of Article 28A and amendment No. 10 seeks to insert a similar amendment in section 2. The purpose of these amendments is to unambiguously assert the primacy of local government elected members.

Amendment No. 7 seeks to make it clear that the powers and functions conferred by law are those conferred on elected members of local authorities who are, in effect, the local authority. Elected members are those voted for by the electorate and entrusted with the duty of making rep resentative democracy work for the people. If we amend our Constitution accordingly, we will be stating that the power conferred is a power which is proper to elected members of local authorities. Arrangements are made in law and elected members may subsequently make arrangements for the execution of those powers to be carried out by other people. However, such a move would always have to be based on the principle that the power of local authorities derives, in the first instance, from the elected members.

The Constitution makes it clear that power derives from the people – it is an expression of the will of the people. In a system of representative democracy the people elect representatives to exercise that power on their behalf according to their likes. If the people do not like the way in which the power is being exercised they can change the people to whom they entrust this task. If they approve of the way in which it is being exercised they can re-elect those people. However, the power derives from the people and, by the exercise of representative democracy, it is handed over to those elected.

I want it made clear in the amendment to the Constitution that the powers of local authorities come from the people to the elected members through the process of election. After that, acting in accordance with their mandate, the elected members can confer, delegate or entrust part of those powers to the executive servants of the local authority on conditions laid down by law.

It is important to state this point because, although it may not formally be the case, the presumption in the running of local authorities is that, apart from exceptional circumstances, power is exercised by the Executive. One finds this even in the manner in which we describe these powers. We talked in this context, and in a different context yesterday at the committee, of reserved functions. Most of us heard about reserved sins when we were growing up, and they were very serious. Reserved functions are, in a sense, kept away from the main stream of things. They are exceptional. Reserved functions should not be in any way exceptional in a system of representative democracy. It is certainly the presumption among the general public that power in local authorities resides with the officials in local authorities, that in increasingly important matters such as planning the real power lies in the hands of the planning staff. It has become part of the folklore of a part of our media that if elected members of local authorities exercise powers in relation to planning which are properly theirs, but which are only exceptionally exercised, there is at least the possibility that something funny is going on. One has only to mention section 4 or material contravention and people start thinking of corruption. The exercise of those powers by members of local authorities has been so increasingly corralled into a small number of areas that it has become a kind of nine day wonder.

I have made cases here and elsewhere for a new way of looking at local authorities, and I am glad that I have got support from the Labour Party and have even got an increasingly kind ear from the Minister and his colleagues for many of the principles I have enunciated and for many of the wishes I have expressed. In speaking about these issues in various places, I have got substantial support from members of local authorities who represent all the parties in the House. That is a very healthy trend, and I hope, as we proceed with various important Bills later this year – a planning Bill and a local government Bill – we will again and again assert the primacy of the elected members and their right to have the principal and determining say in the policies of the authorities of which they are the elected members.

The amendment I put down sets out to state that explicitly in the constitutional provision that recognises local authorities, because that is the first place to say it. In our Constitution power comes from the people to their elected representatives. I want to have that derivation of power made very clear in the section of our Constitution which we now propose to formally recognise the role of local authorities.

I support Deputy Dukes in this amendment which is very necessary, particularly given the decision of the House on the earlier amendment which I proposed. If one looks at the text of what is proposed in this constitutional amendment, there are two separate terms used. There is the term "local authorities" and the term "local government". The term "local authorities" is used in sections 2 and 3, where it refers to the directly elected local authorities and the election of members of local authorities. It is clear from the text of sections 2 and 3 that "local authorities" means the elected members, the councils as we know them. The term "local government", however, is the term used in section 1, and it is local government which is being given formal State recognition in the Constitution. The term "local government" is clearly intended in section 1 to be wider than "local authorities" which is referred to separately in sections 2 and 3. The term "local government" which is getting State recognition is not just the elected members of the local authorities but the system of local government which clearly includes the management, administrative and technical system of local government.

We need to reflect on what exactly we are giving recognition to here. Deputy Dukes's amendment would make it clear that the State is giving recognition to the elected tier of local government. Without Deputy Dukes's amendment, the Constitution will give constitutional recognition not only to the elected tier of local government but also to the managerial and administrative tier of local government, and that tier of local government has not always acted in a people friendly manner.

The courts have been full of cases at different times taken by people against their local auth orities who felt the local authorities acted in an oppressive manner. I will give a couple of examples where this might arise. Individual planning decisions are, for the most part, made by county managers, by the administrative system, the professional planners up through to the county manager who signs off on a planning decision. Many planning decisions are highly controversial and end up being tested in the courts. Compulsory purchase of land is initiated by the managerial side of the local authority, and there have been quite a number of cases where landowners have challenged local authorities for seeking compulsory purchase of their lands.

The construction of roads and motorways where, for example, the council management, engineers and so on make decisions about land take, the line of a road, where it goes and so on can give rise to huge controversy which often ends up in the courts. Whatever we may think of the guys in the trees in the Glen of the Downs, that is probably the most recent case to end up in the courts, but it is not the only one. There have been many others. There was a case in Cork recently where the council proposed to grant planning permission for the construction of pylons across Cork Harbour and the elected council reversed the decision. That was a controversial decision. The management of Dublin Corporation sought to construct the new city offices at Wood Quay and there was huge controversy over the decision which, incidentally, was led by one of the country's most distinguished constitutional lawyers, the former President Robinson.

Up and down the country community groups are campaigning against the location of super-dumps. Some of those cases will end up in court, but what will happen when they get there? We will now have a constitutional provision which underpins and gives constitutional recognition and constitutional strength not just to the elected part of local government but to local government in its totality, including the management system.

Unwittingly, without Deputy Dukes's amendment, this constitutional amendment as it is worded will confer a constitutional authority on city and county managers and on their apparatus which I do not think is intended by the Government. I do not believe that is the intention of the Oireachtas or the people if they vote for it, but that is what it will do because a distinction is drawn in the text of the amendment between local government and local authorities which means – and the text is clear in this context – the elected members. Deputy Dukes's amendment will be essential if there is to be clarity in the Constitution and if we are to avoid a situation where the Constitution will be used to give added strength to the apparatus of local government using its might against the wishes of either individual citizens or of local communities in the case of controversial developments and cases.

Deputy Dukes's amendment is crucial to the debate. It is essential that it be given every consideration and I hope it will be accepted by the Minister of State. Over the years the rights of elected members have been slowly eroded due to a lack of proper protection. The only benefit open to elected members now is to avoid opposing management at many levels because of the fear of upsetting them and forgoing favours they may be able to curry from management or other council officials. Members are paralysed into accepting everything that is proposed by management because the members' own powers have been so seriously eroded.

Both Deputy Dukes and Deputy Gilmore have spoken about the planning aspects which constitute a major part of any local authority. If there is abuse and if planning irregularities are occurring, most councillors will not take on the management or planners over such issues at either public or private meetings because they are afraid that representations they may make later on might be affected or ignored. This is misguided.

I was listening to the debate on the radio this morning concerning the abuse of children in institutions. It is now becoming clearer that people in those institutions who were aware that abuse or some wrongdoing might be happening, are as guilty as those who committed wrongdoing. To take that argument to its logical conclusion, councillors or public representatives who are aware of or believe that abuse might be taking place, yet who do not make the effort, as their duty demands them, to expose, highlight or take on that abuse, are as guilty of the abuse as the person who is allegedly committing it. If, for example, somebody in a council's executive planning section or at managerial level on the council is aware of abuse taking place and does not take on the responsibility of challenging it because the public representatives are beaten into silence, then they are as guilty as the person carrying out the abuse.

Let us not sweep the matter under the carpet and say abuse does not take place at that level. Recent tribunals have exposed such abuse in one glaring incident which I will not elaborate upon now. Allegations are often brought to the notice of elected representatives. If we cannot protect elected representatives in this legislation, our discussions are not rendering them any service. That is why Deputy Dukes's amendment is so important.

We are dealing with planning and the attitude of managers towards public representatives. I would like the Minister of State to deal with this mater in his reply. In some councils, councillors have a constitutional right to put down section 4 applications and direct a county or city manager to do something. The section 4 measure is generally used in planning. However, there are inconsistencies between counties, including my own, whereby the manager might refuse to implement section 4 applications. In other counties, however, the section 4 procedure is accepted. I would like clarification on that point. Why should a different law apply in one local authority compared to another? In some local authorities elected members have the right of prior notice of matters relating to council decisions, including planning matters. Yet, in other local authorities, members do not have that right. What is the position under the Local Government Managerial Act as to the rights of councillors?

The Department, the Minister and everyone else dealing with this reform, are only fooling themselves if they do not face up to the responsibility of giving more powers to elected members. I will soon leave a local authority having served 25 years on it and I will not take any redundancy package because I consider it was my duty to serve the people. I will contest an election for a borough council of which I am currently a member. I am the only councillor in the country who has been a member both of a county council and a borough council for the past 14 years. I am, therefore, speaking with the widest experience of local government. In my experience as an elected member of both types of local authority, the more the powers of elected members are eroded the more such members will curry favour with management. Members will simply become a rubber stamp to approve whatever is put before them. Elected members will be frozen into the belief that if they do not go along with the city or county manager they will lose the remaining powers they imagine they have, or that the public believes elected local authority members have. In such a situation, managerial control of local authorities will slip away from the people and will be wielded totally by council management.

I have much sympathy with what all speakers have said so far on the amendment moved by Deputy Dukes. I am not convinced however that the amendment would introduce clarity into the area. We have to distinguish a debate on the merits of the management system, which has been an established feature of the administrative scene in local government since the 1920s, and the question of what provision one puts into the Constitution about it. By inserting the phrase "on the elected members", Article 28A.1 would read

The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law on the elected members. . .

Plainly, that would mean the city and county management system which has been an established feature of local government since the 1920s, would not be included under the Constitution. The risk would be created of more constitutional litigation and adjudication on that issue. The text before the House permits our local government system to be developed either along existing lines with a city and county management system, or on any other lines the Oireachtas may wish. I have grave reservations about the city and county management system as it has operated. It has led to a devaluation of the very idea of democracy in local communities because councillors are not accountable for many of the most important decisions which councils must arrive at. That has created disillusionment with politics and politicians in local communities. Whether that should be addressed through the direct election of a chief executive, or some other form of local government is a question that should be addressed by this House. However, in the context of a constitutional amendment it is important to leave the framework broad enough to allow the House to devise appropriate structures in local government.

The predecessor of Deputy Dukes's party took the first initiatives in the city and county management scheme. That was built upon by my own party in the 1930s and 1940s. It was done because there was a perception under the original 1898 Act that there was a great deal of corruption associated with the elected members in local government. We have now had a trial period of the alternative management system, which has gone on for a very long time. We can see the difficulties that system has created and it is time to review it. However, I am not convinced that putting that particular phrase into the Constitution would assist that. It might only lead to difficult constitutional litigation about the city and county management system.

The effect of amendment No. 7 would be to amend section 1 of Article 28A to recognise the role of local government in exercising and performing at local level powers and functions conferred by law on the elected members. Amendment No. 10 would make a similar change to section 2 of Article 28.

All local authority functions are exercised on behalf of the local authority, which is the corporate entity. The important policy functions – determination of estimates, land use development plans, water quality plans, schemes of letting priorities, etc. – are exercisable by the elected council. Day to day functions are vested in the executive with a range of powers available to members to oversee the executive for intervention in specified circumstances and to adopt policy as required. That has been the theory on which our current system is based.

Functions are performable by both the policy arm and the executive arm of the local authority, in much the same way as by the board of directors and by the chief executive of a company. All functions, however, are functions of the local authority. Amendment No. 7 would have the effect that not only the policy arm of local government is encompassed in the Constitution when it is the totality of all local government operations which affect the citizens, whether exercised by the policy arm or the executive arm.

To return to the theory on which our system is based, that of policy and executive, it is proper and widely accepted that some functions are not vested in the policy arm, such as the allocation of individual benefits such as staff appointments and house allocations. However, this system has developed in a specific way where, by virtue of the fact that elected members have been part time, poorly resourced and supported, they are at a distinct disadvantage in exercising their policy role as compared with a full time executive.

By default, therefore, their role has often fallen to the executive. It is fair to say that overall balance within the system has tended to tilt towards the executive. The reform programme now under way aims to redress this balance in a variety of ways – better support and backup for members via the SPC system, supported by directors of service, as well as improved information training for members. An appropriate programme is currently being drawn up by the representative working group. For the first time a proper induction programme will be available to all new members this year. Ongoing training information measures will also be put in place. The local government Bill currently being prepared will provide a key role for the corporate policy group in the work of the local authority and extend the term of office of the Cathaoirleach as well as allowing for the introduction of direct election at a future date. A new statutory framework will enable the elected council to oversee the executive.

I do not doubt that, taken together, these and other measures have the potential to redress the democratic deficit which has emerged in the system. Practical measures, such as those I have outlined, will tilt the balance and I remain unconvinced that the Deputy's amendment would effect any worthwhile change. On the contrary, it could have the effect of limiting the extent to which the role of the local government system as a whole, comprising functions exercised by local members and by staff, is reflected in the Constitution. While I agree with the Deputy's apparent aim to increase the significance of the role of the members, the Minister is taking practical action to that end. The Constitution, however, should recognise local government in all its operations as it affects the people. Lest there is any doubt as to the acknowledgment of the elected members in Article 28A, I draw specific attention to the wording in section 1 which refers to a forum for the democratic representation of local communities, section 2 which refers to directly elected local authorities and section 3 which provides for elections for members. Sections 4 and 5 are to be dealt with by later amendments.

Amendment No. 10 is similar to amendment No. 7 and would also seem to bring with it the implication that all functions are exercised and performed by the elected members, albeit in accordance with the law. It is clearly an impractical proposition that all functions could be exercised by the members and, in addition, all local authority functions, not just those of the policy arm but those of the executive, should be required by the Constitution to be exercised and performed in accordance with the law. The amendment would leave the executive off the hook and this would again raise the matter of all functions being performed on behalf of and in the name of the local authority, whether they are of a policy or executive nature.

In these circumstances I ask the Deputy to withdraw the amendments as they may have the effect of limiting the constitutional provision. Real action is under way to enhance the role of the elected member and the elected nature of local government is already encompassed in Article 28A.

The Minister of State made my case when he said that by default, powers have gone to the executive. He made my case again when he spoke of the action that is under way, which I hope will happen, to redress the democratic deficit. He made my case again when he spoke of the necessity to distinguish between policy and executive action.

I do not propose that individual staff appointments would be made by the elected members of local authorities. However, I point out that the functions we are talking about are conferred by the Constitution on the local authority. What is the local authority? It is the members elected by the people to carry out these functions. What do we do by law? Those members, and us, acting by law, set out a statutory definition of how the various powers may be exercised, bearing in mind the fact that those powers derive from the mandate given to the elected members.

The Minister of State has made my case by agreeing that by default powers have gone to the executive and that there is a democratic deficit. Those are the reasons for which I do not propose to withdraw this amendment.

I support Deputy Dukes as we are at a stage where the elected members' function is being reduced to adopting the estimates every year and a new development plan every five to eight years. Members are quoted by planners when applications for amenity areas are refused by saying that the members adopted a development plan. However, when lands are zoned by members and applications are refused, there is no redress for the members. I support the amendment which seeks to give powers to elected members.

There is no power in the Dáil any more. The people with the real power are the officials and the others who have power are the media. We, the public representatives, have no powers. I propose that the local elections be called off until we see what powers local representatives will be given when the election is over.

People do not realise that the only reason we are elected is to take the sting from the officials and managers at public meetings. We have no power. It is over. Take the Taoiseach's announcement yesterday, which was welcomed by everyone this morning. Where was that announcement made? Outside this House. The media and civil servants are running this country. We, the public representatives, are supposed to be running the country, but we are running nothing. Everything is being run by officials and it is time power was returned to public representatives. It is time the people demanded the return of power to them. Faceless county managers, assistant county managers and county secretaries are running the country. The Minister must challenge the Civil Service and county managers and bring power back to the Oireachtas and local authorities. The people will insist that power be returned to their elected representatives.

Westport is up.

I do not think that is what Deputy Ring had in mind.

Carlow-Kilkenny): Ós rud é go bhfuil sé leath uair tar éis a dó dheag, ní foláir dom an cheist seo a leanas a chur de réir ordú an lae seo ón Dáil: “Go n-aontaítear leis seo an leasú nó na leasaithe a leag an tAire Comhshaoil agus Rialtais Aitiúil síos do Chéim an Choiste agus nár cuireadh de láimh a dhéanamh ar an mBille; go n-aontaítear leis seo i gCoiste, ailt 1 agus 2, an Sceideal, arna leasú, agus an Teideal; agus go dtuairiscítear an Bille don Teach dá réir sin; go gcríochnaítear leis seo an Ceathrú Céim; agus go ndéantar leis seo an Bille a rith.”

As it is now 12.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendment or amendments set down by the Minister for the Environment and Local Government for Committee Stage and not disposed of is or are hereby made to the Bill; that sections 1 and 2, the Schedule, as amended, and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House; Fourth Stage is hereby completed; and the Bill is hereby passed."

Cuireadh an cheist.

Question put.

Ahern, Bertie.Ahern, Dermot.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Cowen, Brian.Cullen, Martin.Daly, Brendan.Davern, Noel.Dempsey, Noel.Dennehy, John.Doherty, Seán.Fahey, Frank.Fleming, Seán.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Jacob, Joe.Kelleher, Billy.

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Rourke, Mary.Power, Seán.Ryan, Eoin.Smith, Brendan.Wade, Eddie.Wallace, Dan.Woods, Michael.Wright, G. V.

Níl

Ahearn, Theresa.Barnes, Monica.Barrett, Seán.

Bell, Michael.Bradford, Paul. Broughan, Thomas.

Níl–continued

Browne, John (Carlow-Kilkenny).Bruton, John.Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.De Rossa, Proinsias.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Enright, Thomas.Finucane, Michael.Flanagan, Charles.Gilmore, Éamon.Hayes, Brian.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.

Howlin, Brendan.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McManus, Liz.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Shea, Brian.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Timmins, Billy.Wall, Jack.Yates, Ivan.

Tellers: Tá, Deputies S.Brennan and Power; Níl, Deputies Barrett and Stagg.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.