I move: "That the Bill be now read a Second Time."
It is unusual that a Bill should be introduced in this manner and at such short notice. However, the Government considers it necessary to do so on this occasion to address a legal doubt which has emerged in regard to the powers of local authorities to make charges for services which they are required or empowered to provide under current legislation.
This short Bill does no more than confirm the commonly understood position regarding the powers available to local authorities to charge for certain services. As part of that process it is necessary to validate the position in regard to any such charges made to date. It would be useful to put the charging issue in context. As Members will be aware, local authorities charge for a wide range of services and they derive their power to do so in four main ways.
First, certain legislation empowering or requiring a local authority to provide a particular service can include a specific power to enable authorities to charge in respect of that service. An example is fire call-outs under the Fire Services Act, 1981. Second, in some cases legislation empowering or requiring a local authority to provide a particular service may specify a mandatory charge or fee and also set out the level of such charge or fee in primary legislation or regulations. An example is planning fees. Third, in some cases where legislation confers some power or function on a local authority in regard to the provision of a service, that legislation may empower the auth ority to make by-laws in regard to that service, including the power to charge for it. Some examples include off-street car parking charges which are covered by by-laws under section 101 of the Road Traffic Act, 1961, and also on-street car parking by-laws under section 36 of the Road Traffic Act, 1994. Finally, where none of the first three charging powers applies, and relevant legislation does not specifically address the question of charges for services provided, local authorities have relied on the provisions of the Local Government (Financial Provisions) (No. 2) Act, 1983, to levy charges in respect of such services. That is the situation in relation to local authority waste charges.
The Waste Management Act, 1996, put in place a modern, comprehensive framework for waste management. In doing so it repealed the provisions relating to waste which dated back to the Public Health (Ireland) Act, 1878, and the Public Health (Amendment) Act, 1907.
At the time, it was clearly envisaged and understood that local authorities could and would continue to provide waste collection and disposal services and, accordingly, would continue to levy waste charges. As a result of the general reliance on the 1983 financial provisions legislation, however, it was not considered necessary to make provision for charging in the 1996 Act.
The then Government's intention was clear. Its December 1996 policy document, Better Local Government, stated explicitly that waste charges are an important instrument in waste management policy and that the option must be retained to allow local authorities to continue to provide environmentally safe refuse services while being in a position to defray the costs through charges.
This Government's 1998 policy statement on waste management – Changing Our Ways – recognised as fundamental to efficient waste management that all producers of waste must pay fully for its collection, treatment and disposal. The document specifically recommended that local authorities move rapidly towards full cost recoupment for waste services they provide and, as a matter of equity and to incentivise waste reduction, the level of waste charges imposed by local authorities should vary according to usage.
Local authorities have relied on the Local Government (Financial Provisions) (No. 2) Act, 1983, as a legal basis for the imposition of waste charges. Looking at that Act, section 2 provides that where any existing enactment requires or enables a local authority to provide a service, but does not empower the authority to charge for that service, the enactment is deemed to empower the authority accordingly.
The term "existing enactment" used in that section is defined in section 1 of that Act to include any amendments or extensions made to the enactment concerned. On that basis, and in light of the provisions of the Interpretation Act, 1937, dealing with the construction of references to repealed statutes and revoked instruments, it has been considered that the modern provisions and repeals introduced under the Waste Management Act, 1996, did not affect the entitlement of a local authority to rely on the 1983 Act for the making of charges in respect of waste services.
A view could be advanced, however, contrary to this general understanding. This view would suggest that reliance on the 1983 Act to levy charges might be unsound if the relevant subsequent legislation empowering or requiring the provision of a service does not explicitly purport to amend or repeal pre-1983 legislation. While the specific concern at issue arose in relation to the basis for waste charges, other local authority charges made under the 1983 Act may also be affected. In these circumstances, the Government cannot allow the uncertainty in this issue to prevail and I have, therefore, brought forward this Bill to put the matter beyond doubt and to validate relevant charges made to date.
The substantive sections of the Bill are sections 2 to 4. Section 2 substitutes a revised definition for the definition of "existing enactment" in the 1983 Act. The effect of this is to ensure that an "existing enactment" will mean any enactment in force on, or at any time after, the commencement of the 1983 Act until the passing of this Bill.
Section 3 validates certain charges made by local authorities. It provides that a relevant charge made by a local authority by virtue of section 2 of the 1983 Act is deemed to have been validly made and may be recovered as validly and effectively as if this Act had been in operation at the time of the making of the charge.
Section 4 provides that this Act will not prejudice any proceedings that might have been initiated prior to the publication of the Bill in relation to the validity of the charge made by virtue of section 2 of the 1983 Act.
The proposed Bill does nothing more than confirm thestatus quo. It does not in any way extend the current powers of local authorities to charge for services they provide under existing law. It does not introduce any power to charge for services which local authorities might be required or empowered to provide under any future legislation. It also does not overturn or affect any existing legislation which prohibits the imposition of charges for any local authority service. The sole intention behind the legislation is to avoid doubt so that there is legal certainty about the power of local authorities to rely on the Local Government (Financial Provisions) (No. 2) Act, 1983, to charge for services which they provide.
I commend the Bill to the House.