THE ROYAL CANAL. - SUGGESTED NEW SECTION.
I move:
After Section 4, to insert a new Section 5, as follows:—
The Minister shall make arrangements whereby standard samples, bearing the seal of his Department, of all articles of a non-perishable nature which have been made the subject of an official contract shall be displayed at the offices of every local authority and at the Department.
Having seen the very voluminous list of articles I ask leave to delete the words "every local authority" from the amendment. As practical persons know, you cannot meditate on price. There is great temptation to buy the cheapest article, but very often it is the worst, and in the long run the most expensive. You must have some practical and positive means of specifying quality. You will want rules and regulations. I do not see how you can determine quality without a satisfactory sample. Long scientific specifications can be drawn up that it would require chemists and scientific people to determine. I have been looking through a long list of articles for which contracts have been made in the past, and in many cases there is nothing to indicate the size, the length, or the weight of them. The only satisfactory way to determine that is to see the article. By doing so a contractor will know what is required, and should any local authority wish to buy they can see it. If the Government have any alternative proposals to meet such a point I do not adhere to the wording of this amendment. It is absolutely certain that a mere verbal specification will not determine quality. If it passes as it stands the Bill will be ineffective in its purpose.
I think there is a danger that the Bill will tend to militate against traders in the provinces if they have to send samples to Dublin.
AN CATHAOIRLEACH
You do not quite follow the amendment, Senator. This is after the contract has been made.
In some trades it would be very difficult—for instance, in the building trade—to send up samples.
I wonder would the Senator be satisfied if I assured him that there is unlimited goodwill to the purpose of the amendment, and that in fact there are centrally at the Department, samples of nearly all the commodities that are centrally bought, and with regard to which contracts are entered into. If the Senator would be content with that assurance and leave the matter to be dealt with by regulation under Section 12, I think, perhaps, it would be more satisfactory than to accept the amendment as it stands. There are obvious difficulties about keeping samples of, say, a road engine or a steam roller in the offices of the Department. The specifications are entered into in consultation with the most experienced officers of the local authority, and occasionally, in the case of particular articles, small consultative committees are set up. There is every acceptance of the point of view that the mere specification, however carefully drafted, is not adequate, and that samples ought to be permanently on view somewhere. I think if the Senator is assured that the underlying idea of the amendment is fully accepted in the Department and actually put into effect it might be met by regulations made under Section 12 of the Bill.
I am quite satisfied. Perhaps on the Report Stage the Minister would introduce some form of words that would put the matter into general form. I see difficulties in carrying out the amendment to the letter.
AN CATHAOIRLEACH
Including the exhibition of samples where reasonably practicable.
It takes rules to regulate the exhibition of samples.
Amendment, by leave, withdrawn.
Question—"That Section 5 stand part of the Bill"—put and agreed to.
SECTION 6.
(1) Whenever a local authority purchases or enters into a contract for the purchase of any commodity for which an official contractor has been appointed under this Act with a person who is not an official contractor for such commodity, an entry shall be made in the minutes of such local authority stating the reasons for such purchase or contract.
(2) Such entry shall be produced at any audit of the accounts of the local authority which includes any payment for such commodity or under such contract.
(3) At any such audit, unless the auditor is satisfied that such purchase or contract was not made for any fraudulent or improper purpose or object or for any object other than the bona fide discharge by the members of the local authority making or authorising the making thereof of their duties in the interests of the ratepayers, he shall charge against such members jointly and severally the amount of any loss caused to the local authority by such purchase or contract, whether such loss arises from the price paid for the commodity or from the quality of the commodity so obtained or otherwise howsoever, and in the case of a contract if in his opinion any such loss as aforesaid is likely to result from the continuance of the contract he may declare such contract to be illegal.
(4) Where a contract is declared to be illegal in pursuance of this section such contract shall thereupon become void, and Section 12 of the Local Government (Ireland) Act, 1871 (which relates to the duties of an auditor and to appeals) shall apply in the case of such contract, and the members of the local authority making such contract may be surcharged accordingly either with all payments made thereunder or with such portion thereof as may appear to the auditor, having regard to all the circumstances of the case, just and reasonable, but the persons with whom such contract was made may notwithstanding such declaration recover any sum due to him under such contract in respect of commodities supplied before such declaration.
(5) Any decision of an auditor under this section shall, save so far as the same may be altered on appeal, be conclusive and binding on all persons.
I move:—
After the word "commodity" in line 47 to insert the words "of like quality to that."
Penalties are imposed, and apparently if there is a surcharge there is no power of appeal. If a local authority in their wisdom—and, after all, we come back to the principle that a local authority should be trusted—choose to buy a commodity either of an inferior or a better quality than the one which is the subject of the official contract, it does not seem reasonable that any penalty should follow. There may be often a case to be made for buying a cheaper article or for buying a dearer article. If that is done, why should all this machinery dealing with auditors and penalties be introduced? How is the injustice going to be brought home unless the offence lies in some specific act or wrong-doing in respect of identical commodities? When you read that in connection with the latter part of the section, where penalties arise for loss of price, or for loss of time, or for inferior quality, it seems as if you are in somewhat of a morass.
AN CATHAOIRLEACH
There is an amendment in the name of Senator Linehan, and it covers that point.
I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move:—
Section 6, sub-section (3), after the word "audit" in line 55, to insert the words "if it is proved that the price paid for the commodity is greater than that quoted by the official contractor, or the quality of the commodity is inferior to the standard sample and."
In order to safeguard the members of a local authority who would be well inclined to do their duty to the ratepayers and to the institution of which they are the managing directors, this amendment will make it clear that they will not be liable if they keep two main principles in view, in the event of giving the contract to a person other than the official contractor. These two principles would be, that the price would not be in excess of the price quoted by the official contractor, and that the article or commodity supplied would not be inferior to the standard sample. According to sub-section (3) of section 6 I think if I was a member of a local authority I would be very slow to accept a tender from a person outside the list of official contractors. Under the section as it stands, I would always have before my mind the fact that I should be getting ready to prove my innocence in order to put it before the auditor when he came to examine the accounts. I think the amendment I have proposed is a very reasonable and just one, and that there should be no objection to its incorporation in the Bill.
The objectionable feature of the amendment is that it rather defeats the whole outlook and the whole mentality with regard to the official contractor. The idea the Department are anxious to establish is, that once the contract is entered into with the official contractor, the normal course is that the local authority should purchase in that way, and that departure would be to do otherwise. Section 6 puts the onus on the local authority, in the event of departing from what the Minister would wish to have regarded as the normal course, to show cause, as it were, that that action was taken for some reason; that they considered the interests of the people for whom they were exercising stewardship.
The Senator's amendment is not, of course, revolutionary to the Bill. It is not a very serious departure from the Bill, but it affects the mentality and gets away from the idea that the normal course is to take from the official contractor with whom the central purchasing department has entered into an arrangement. It changes the onus. Instead of the local authority being asked to show why they took this special course of buying otherwise than through the official contractor, it throws the onus back on the Minister and his Department to show specifically that the interests of the ratepayers were injured thereby, either by reason of a greater price being paid, or by reason of an inferior quality of goods being taken. Looking at Section 6, there does not seem anything objectionable about it. Sub-section (1) provides that where there is a departure from the procedure of buying from the official contractor in regard to an article that has been made the subject of contract, an entry shall be made in the minutes showing the cause for such departure. The entry then must be produced at any audit of the accounts of the local authority which includes any payment for such commodity or on any such contract. Finally, sub-section (3) says:—
At any such audit, unless the auditor is satisfied that such purchase or contract was not made for any fraudulent or improper purpose or object or for any object other than the bona fide discharge by the members of the local authority making or authorising the making thereof of their duties in the interests of the ratepayers, he shall charge against such members jointly and
I think some Senator speaking to this amendment said there was no appeal from such surcharge by the auditor. Of course there is always an appeal from the surcharge of an auditor.
To the courts or to the Minister.
AN CATHAOIRLEACH
There is an appeal ad misericordiam, so to speak, to the court on the question of law.
There is this about the Senator's amendment, that I would like to add that it might be rather a formidable matter for the Minister, in the event of a wholesale disregard of the operations of this Bill, to undertake to establish a case against every local authority which departed from it on the basis of either price or quality. I would urge the Seanad to accept the view that the better course is to take it that the normal procedure will be to buy from the official contractor, and that on a local authority taking the responsibility of departing from that course, that they should be able to make their case for that departure. Otherwise it is simply a sapping and undermining of the whole idea. If local authorities here and there break away and purchase goods locally, and defy the Minister to prove that in the matter of quality they did not do as well, or that the price was greater, and so on, the Act would be unworkable. In spite of what Senator de Loughrey has said, there is considerable opposition to this whole idea of central purchasing, and one can well understand the reason. The Department has good reason to believe that the people whose interests are injured by it are prepared to put up a very determined resistance to the entire scheme.
That being so, the Minister must simply frame this Bill in the light of the facts that are within his knowledge. Personally I was not in the least impressed by Senator Kenny's statement that sixty articles were put up for local tender, and that in the case of thirty-one of them the people tendering locally did better. I would require very considerable proof that the people tendering locally were unaware of the prices that the central purchasing department were paying for these articles, and I would require a great deal of persuasion before I would believe that the whole business was not simply put through ad hoc—for the purpose of providing arguments against this Bill.
So far as the prices portion of the amendment went, I would not be averse to it. I would be opposed to the amendment on the whole. I think to put in an amendment with regard to quality would open up an endless vista of difficulties. If this proviso, "according to quality," were allowed, you would have every local authority that desires it saying, "This is the better tea. It has the better taste and flavour," and so on, and, that being so, it would be quite impossible to work the Act and carry out the purpose for which it was intended. For that reason I am opposed to the amendment. I think we cannot take it piecemeal. The question of price does not come in. I certainly feel very strongly that if we admit the principle of quality, the Act will never be properly administered at all. I remember quite well in the old days when it was, of course, a question of quality, we got standard samples. You had an inmate of the workhouse getting a shawl. A trader in the locality sent in a sample shawl, which to the lay mind was infinitely inferior. His friends on the Board, however, said that it was better than the other, and it was accepted, though obviously it was a great deal inferior. Therefore, I say that the question of quality is not to be haggled about in this way; it would hamper the working of the Act.
It appears that the question of quality is to arise. If a local authority buy a cheaper article the Government may then in their wisdom or the auditor may recommend a surcharge on the basis not of prices, but of quality, and you are up against that same difficulty that Senator Bennett has indicated. A local authority might buy tea at 3d. per lb. cheaper than through the central authority, and they might say: "We are saving 3d. a lb. We consider this tea is in no way inferior to the standard sample." This may be carried to extremes and brought into the courts to get a decision as to whether or not the ratepayers have suffered by purchasing tea at 3d. a lb. less than the tea supplied by the central authority. You would have serious misgivings as to how, in practice, this Bill is to work if the local authorities consider that they are justified in buying it more cheaply.
It would be cheaper, but it might be a question of quality. That is Senator Sir John Keane's contention.
AN CATHAOIRLEACH
Section 6 of the Bill does specially provide that if the local authority has satisfied the auditor that they acted bona fide in the discharge of their duties, even though he may think they were wrong, —if the local authority satisfies the auditor that they have acted in what they consider to be in the interests of the ratepayers—he is not to surcharge them. I think Senator Linehan has ample security there in that Section 6 as it stands, because these auditors do not go round the country for the purpose of surcharging the local authorities if they can help it.
The members of a local authority will have always before them the fear of possible surcharges, even in respect of votes that have been given perhaps six or twelve months previously. That, I think, is not desirable.
AN CATHAOIRLEACH
If they do take a local tender in preference to the official contractors' price they record their reasons for it at the time. That being so, they will not be taken by surprise later when the auditor comes round. They made their case for it at the time, and it is there on record. The Bill provides for that. So that it is not a question of their being taken by surprise six months later. Their reasons for accepting the local tender would have to be recorded. Assuming that the auditors would do their duty fairly and impartially, and we have to assume that, I think the local authorities are protected under this Section 6.
Amendment, by leave, withdrawn.
Question—"That Sections 6, 7 and 8 stand part of the Bill"—put and agreed to.
I move:—
In Section 9, sub-section (1), to delete the word "five" in line 31 and to substitute therefor the word "seven."
The object of that is to enable the Local Supplies Advisory Committee to be enlarged, so that the interests of agriculture would be included amongst the members of the committee. The other two amendments in my name are practically on the same subject, and with your permission I will deal with the two of them together.
AN CATHAOIRLEACH
I move:—
Section 9, sub-section (1).—At the end of the sub-section to add the words, "(d) two persons shall be representative of agriculture in Saorstát Eireann."
Section 9, sub-section (2).—After the word "commerce," in line 43, to insert the words, "or agriculture."
The object is to provide for representation of agricultural interests on this advisory committee. I rather imagine that it was through an oversight that the Minister left out that very important interest in constituting this committee. Certainly the agricultural interests will have to bear a very large proportion of the cost of these commodities, and I think it is only fair they should have representation on this advisory committee. It is not a committee that will have any executive powers; it is merely for advising the Minister. I think he should have the views of the agricultural interests in considering any important matter as regards the selection of commodities, and in connection with the other duties for which this committee is constituted.
There is a provision in the Bill that the local authorities themselves shall contribute their quota towards the cost of this central purchasing department. It is advisable, in order to get the full effect, to see that the overhead expenses of the Department do not become unduly inflated, and the proposal to increase the number must be judged having regard to the fact that travelling expenses will be increased. The Senator ought really to ask himself whether five will not be entirely adequate for the purpose, and whether any addition to that number is advisable having regard to the fact that there will be necessarily travelling expenses for the members of this body.
The same thing would apply to the other members.
The same thing would apply to seven, but the travelling expenses of seven will necessarily be greater than for five. I may ask, having regard to that, whether it is desirable to make any increase.
AN CATHAOIRLEACH
The provision in the Bill to which you refer is sub-section (8) of Section 9.
I do not see any good or sufficient reason for increasing the number. Dealing with the other amendments, the Senator asked for special representation for agriculture. I draw attention to paragraph (a), sub-section (1) of Section 9: "Two persons shall be elected members of country or country borough councils in Saorstát Eireann." Presumably the agricultural interests will be well represented on the county councils, and if not, I do not know who is to blame, except possibly the agricultural interest itself. I simply ask the Senator whether, in view of the fact that this is predominantly an agricultural country, and that the personnel of the county council is predominately agricultural, it is necessary to make a special provision that there shall be representation for agriculture. As a fact, most of the commodities that will be the subject of this kind of central contract system will not be agricultural produce, will not be perishable goods, and there is not, therefore, any special case that there will be a question of agricultural produce going through the central purchasing department, and so on. Such articles as milk and vegetables are eminently more suited for local rather than central purchasing and, in fact, in practice they are habitually so treated. The other amendments would seem to turn very much on the question as to whether it is decided to increase that number five to seven. I am opposed to the increase.
AN CATHAOIRLEACH
Would you be prepared to meet the Senator so far as to leave the number as it is, and in paragraph (c) to accept this amendment: "One person shall be representative of commerce or agriculture," and leave the number as it is? That would give you the option, if you wished, of selecting an agricultural or a commercial man. It would leave your committee the same number, and would give you the power which you otherwise have not got, to put on a representative of agriculture.
Nearly everyone in the country, except the police and military, are representative of one or the other, and I am not sure that it would be scientific drafting to say that one of these representatives shall be a representative of commerce or agriculture. I think the Senator is safe enough under paragraph (a) and that he is certain to get agricultural representation there.
I think it would be very unlikely that you would get agricultural representation. When it comes to discussing tea or sugar, for instance, the member of the country council would say, as so and so is a tea and sugar man and understands this, he would be the best representative on the committee. I would not be in favour of changing the number five to seven. I think a suggestion that would possibly meet the case would be to arrange it this way, that of the two elected members of the country council one shall represent agriculture. The suggestion which I have made would, I think, meet the case.
The argument of the Minister that agriculture would be represented under paragraph (a), that is to say, through the country councils, is one that might also be used as regards commerce, because already we have the borough and urban councils represented. In addition to commerce being represented under (a) and (b) you have it specially represented under paragraph (c). It is a fact that the only function which the agriculturists will be in a position to exercise is that of paying for the commodities. In the case of commerce it is different, because those engaged in it may make some profit from supplying goods to the institutions in respect of which they have been declared the official contractors. I think it is absolutely necessary that the people who pay a considerable portion of the cost of these commodities should have some voice on this advisory committee. I would be satisfied if, instead of two, there was one representative of agriculture added to this committee.
I would be prepared to leave the number at five. I draw the Senator's attention to the fact that this is not an elected committee. It is a committee of persons to be appointed by the Minister, and this is eminently a ratepayers' Bill, brought in in the interests of the ratepayers—
But they are excluded from the committee.
—rather than, as the Senator seems to suggest, a Bill in the interests of persons engaged in commerce or anything else. The suggestion has been made that paragraph (c) should read: "One person shall be representative of commerce or agriculture in Saorstát Eireann." I was not particularly attracted by that, but if the paragraph were so worded, then, in the event of there being insufficient representation, or what the Minister would consider insufficient representation for agriculture under paragraph (a), the matter could be balanced by paragraph (c), by selecting the representative there. For the purpose of advising him in the practical administration of this measure, which, as I say, is brought in in the interests of the ratepaying public, the Minister is not likely to select a committee whose interests would run counter to, or would conflict with the interests of the ratepaying public, and this pressure for some special representation for agriculture, as such, is scarcely sound in the face of facts like that. If the agricultural interests generally cannot secure representation on the country councils of the country and thereby on the General Council of Country Councils, which, presumably, will be consulted by the Minister when he is selecting this committee, well then it is simply their own fault.
Amendment put and declared lost.
Section 9 put and agreed to.
Section 10 and 11 were agreed to and added to the Bill.
SECTION 12.
The Minister may by order make regulations for all or any of the matters following, that is to say:—
(a) appointing the procedure to be adopted by local authorities in carrying this Act into effect,
(b) determining the standard of quality for any commodity for which the Minister has appointed or intends to appoint an official contractor,
(c) prescribing the conditions of supply for any such commodity as aforesaid,
(d) regulating the procedure and other matters relating or incidental to any testing or ascertaining of the quality or nature of any commodity for which he is authorised by this Act to make arrangements,
(e) requiring that any commodity to be supplied shall be manufactured wholly or in part in Saorstát Eireann,
(f) requiring that the wages to be paid and the conditions of employment to be observed by an official contractor for the supply of any commodity to local authorities shall be such as are required in the execution of contracts with a State Department,
(g) prescribing any matter or thing which is referred to in this Act as prescribed or as being or to be prescribed.
I beg to move amendment 3:—
In Section 12, to add at the end of the section a new sub-section (2), as follows:—
(2) Any regulations made under this Act shall be laid as soon as may be before both Houses of the Oireachtas; and if either House within twenty-one days after any such regulation has been laid before it shall by resolution disallow such regulation, such regulation shall be null and void, but without prejudice to anything previously done thereunder or to the making of a new regulation.
I fail to see any reason for excluding the Rules under this Bill from the ordinary process of being laid on the Table. It is a safeguard to have regulations of this kind left on the Table. If Senators do wish to inform themselves on these matters the documents will be there and can be consulted, and if there is anything undesirable the machinery is there by which it can be brought to notice. The regulation as regards having Rules laid on the Table has been allowed in the case of measures of less importance than this.
The amendment is not just as reasonable as the Senator claims. If he will read down again the matters that are to be covered by these regulations he will see that they are of an administrative character, and that it would make the work of a department extremely difficult if administrative details of that kind were to be voided. The matters covered by paragraphs (a) to (g) are not really the kind of matters that normally are dealt with by regulations laid before both Houses of the Oireachtas and voidable by resolution of either House. One could, of course, go to extremes in this matter of exacting that the detailed administrative work of a department should be subject to approval. It is a simpler thing, if there is that outlook and that mentality, to remove a Minister, and it is, on the whole, more desirable. I do not consider that on the matters set out in these paragraphs that either the Dáil or the Seanad is more likely to come to a just or an accurate decision on them than the Minister and his officials, and if it does come to this: that the Minister, with his officials, cannot be trusted to deal with the kind of matters that are set out there, then he ought not to be the Minister.
Every day, in every Department, there are things of far more practical importance than any of the things set out there dealt with on the discretion of Ministers, and is that wrong? You can run mad and run amok on that line of exacting that administration be brought under the microscope by the Dáil and the Seanad. This is only the merest administration. To say that the Minister should put this Bill into effect, and do it in a way that would render details such as these voidable after three weeks by a side wind from the Dáil or the Seanad, would be making matters very difficult for him. There would be a stage at which he would have to prescribe a regulation and act on it, and some of these regulations would be of a kind that would need to be final. If they were voidable they would present very considerable difficulties.
AN CATHAOIRLEACH
I think these are matters of administrative detail too minute to be made the subject of regulations to be laid on the Table. It would be pushing that practice to a very extreme step if you applied it to such small matters of administration as are contained in some of these headings.
I do not see how there is any more detail involved here than in the Dairy Produce Bill.
AN CATHAOIRLEACH
Would this meet the Senator's view: "The Minister may by order and after consultation with the Advisory Committee make such regulations," and so on.
If one could see them. I do not mind about the annulling. If one could see them, and one could bring up a motion. One had a little bit of a shock over the Accounts Order brought up early this afternoon. All these things are pulled about as the Executive see fit, and I think anybody who heard the debate this afternoon must admit that the thing was really rather a farce.
AN CATHAOIRLEACH
Would you be satisfied with words: "Any regulations made under this Act shall be laid as soon as may be before both Houses of the Oireachtas."
Yes, regulations have got to be made, and it is only a question of laying a copy here.
There is no objection to that. It is the voidable aspect that is objectionable.
AN CATHAOIRLEACH
The Minister accepts that.
Amendment, as amended, agreed to.
Question: "That Section 12, as amended, stand part of the Bill," put and agreed to.
Section 13 was agreed to.
SECTION 14.
"This Act may be cited as the ‘Local Authorities (Combined Purchasing) Act, 1925.'"
I beg to move to add at the end of the section the words:
"Provided the Bill is only to remain in force for three years."
Even at the risk of being thought unduly suspicious in thinking of corruption in this country, I move this amendment. I have already been hauled over the coals for raising a question of this sort, but there is no doubt about it that this Bill does open a field for plenty of corruption if such a thing is going to exist. I do not want to accuse the people of this country of a double does of original sin, but there is no question of doubt that every country in the world has its corruption, and the more we can prevent such a thing ever creeping in here the better, and I think it is our duty to do so. I remember very well on one occasion in America, when the question was discussed as to why the President had such a short time of office, an American Senator said to me: "We think four years is long enough to give any man control of the public funds. He would be apt to get too cute at the end of the time." This Bill is a new departure, and I think it would be a very wise thing to let us see how it works. If it works well it can be renewed at the end of three years. If it does not work well, or if there are any changes thought desirable to make in it, we can make them. The matter will be open to discussion at the end of three years, and my amendment is to secure that the duration of the Bill be limited to that period.
I understand there is no objection to that.
AN CATHAOIRLEACH
There is no objection. Then it would read at the end of the section: "This Act shall expire after three years from the date of its passing."
Amendment put and agreed to.
Section, as amended, agreed to and added to the Bill.
Title agreed to.
AN CATHAOIRLEACH
That disposes of this Stage of the Bill.
