Seanad Éireann debate -
Wednesday, 9 Apr 1930

Vol. 13 No. 17

State Lands (Workhouses) Bill, 1929—Report Stage.

Mr. Toal

I move amendment 1:—

Title. To delete in lines 10-12 the words "and now belong by virtue of Article 11 of the Constitution to Saorstát Eireann."

My principal reason in moving in this matter is to preserve, if possible, the rights which local bodies had under the various Acts leading up to the passing of the Local Government (Temporary Provisions) Act, 1923. Under those Acts they had the right to sell. We are advised that Article 11 of the Constitution does not take away that right from them. By Section 34 of the Poor Relief Act, 1838, workhouses were vested in the Poor Law Commissioners in trust for the purposes for which they were then applicable—that is, in trust for the relief of the poor. Section 40 of the same Act authorised the Poor Law Commissioners to sell and convey workhouses no longer needed and to apply the purchase money, either in the purchase or building of another workhouse or in such manner as the Poor Law Commissioners should think advisable for the benefit of the Union.

We feel very strongly on this matter. We are advised that Article 11 of the Constitution does not, or should not, take away from local bodies the rights given to them, rights embodied in different Acts of Parliament. We feel that it is a great injustice that local bodies should be compelled to keep and maintain in a state of repair workhouses that are no longer in use and which can never be turned into any useful purpose. Many of them at the moment are an eye-sore on the face of the country. They are white elephants on the hands of local authorities. In the case of people anxious to start an industry in a district they might be inclined to take these buildings if they could buy them out, but they would certainly not lease them.

As Senators know, it is almost impossible to turn these old workhouses to any useful purpose. In the county that I represent we have four workhouses. One of them is the County Home. That is all right, because it is being suitably utilised. In the case of the Carrickmacross workhouse, one wing of it is set for the carrying on of a little industry, but the other portion of the building is becoming dilapidated. The County Council is called upon to keep that building in repair. It is obliged to do that whether or not the revenue derived from these buildings is sufficient to bear the cost of repairs. We have another workhouse at Clones. A small portion of it is set at a rent, but the amount of money derived in that way is not sufficient to keep the building in repair. No one would take one of these buildings on lease for the purpose of starting industries in them, but there are plenty of people who would be prepared to buy them out for such a purpose if the local body had the power to sell. In the case of the Monaghan workhouse, some local associations entered into negotiations with the Minister for Local Government behind the backs of the local bodies. The local bodies do not know the exact terms of the arrangement that was entered into. I think if the Government hold the view that Article 11 of the Constitution governs this matter, then they must repeal Section 8 of the Local Government (Temporary Provisions) Act, 1923. That section empowers the Minister to sell and to hold the proceeds in trust "for any purpose for which the land, etc., could have been used or applied by law under the county scheme or otherwise."

There is a great difference of opinion as to whether the provisions of Article 11 of the Constitution apply at all in this matter. The County Council obtained counsel's opinion on the matter. I will read an extract from his opinion:—

It seems to me that only the property of the State generally is within the Article and that the Article was not intended to cover and should not be extended to cover property held by a department of State in trust for special purposes in a local area. I consider the words "subject to any trust then existing" in Article 11 may be held to preserve the trust in favour of the Union.

That is the opinion of a very able member of the Bar. He has advised the Monaghan County Council that it is quite possible that a different interpretation can be put on Article 11 of the Constitution to that put on it by the Government. He goes further and says that if the county council were prepared to test the matter in Court the chances are that the Court may hold with his view. We have no desire to have the case brought into the Courts, but we have a very strong desire to maintain the rights given to us under several of the old Acts. We feel that it is a great injustice to us in the County Monaghan that we should be obliged to maintain and keep in a state of repair a number of these old workhouses from which we are not able to draw sufficient revenue to bear the cost of their repair. The Minister may tell me that we have power to lease them for a period of 99 years. I do not think that is the proper way of dealing with them. Under the old Acts the local body had the power to sell and we maintain that that right should still be preserved to us.

Cathaoirleach

As the four amendments on the Order Paper appearing in the Senator's name seem to hang together, I think it would be more convenient if all of them were taken together.

Mr. Toal

I am quite prepared to move the four amendments together. The three remaining amendments are as follows:—

2.—Section 2. To delete all from the word "and" in line 37 to the end of the section.

3.—Section 3, sub-section (1). Before the word "lease" in line 41 to insert the word "sale."

4.—Section 3, sub-section (1). Before paragraph (a) to insert a new paragraph as follows:—

"(a) sell such land."

Mr. O'Rourke

I desire to support the amendments moved by Senator Toal. There is no doubt that it is a hardship on local bodies to be compelled, as the Bill proposes to compel them, to keep these old workhouses in repair. If these workhouses could be sold at the present time it is probable that buyers could be got for them. All that can be done with them at present is to lease them, and no one will take a lease of them. If they were sold the county council or the urban council, as the case might be, would get rates out of them. The position at the present time is that the county council or the board of health must keep them in repair. There are three or four of these workhouses in the County Monaghan. The chimneys on them are falling down, the windows are falling in, and the roofs are nearly half off. These buildings are never going to be of any use. It seems to me that to compel local bodies to spend money putting new chimneys on these institutions and repairing the windows every time they fall in is a waste of public money.

Mr. Douglas

When the Minister is replying I would be glad if he would deal with the question whether this amendment, if inserted, would do what Senator Toal requires. I think this has been rather a vexed question for quite a considerable time, whether buildings of this kind properly come under Article 11 of the Constitution. I gathered that it was counsel's opinion that it was not intended that these buildings should come under Article 11. I am sure counsel is right, but unfortunately what we have to consider it not what was intended but what is held to be the legal effect of that Article. It would probably be an exceedingly good thing if the county council were to take this matter to the courts and ascertain definitely whether these workhouses do come under Article 11 or not.

It seems to me that if the Seanad were to agree with the first amendment moved by Senator Toal, the Act would then apply only to property which does come under Article 11. If the Seanad were to delete from the Bill the words in the amendment, then the Act would apply to property that does not come under Article 11. That, I think, would possibly be defeating the object that Senator Toal has in view. I think it would be far better to leave the words in. I agree entirely with what Senator Toal wants to achieve and I think it is perfectly reasonable. Still I think it would be better to leave the words in and have challenged definitely in the courts the issue, whether these buildings do or do not come under Article 11 of the Constitution. I think that is the only way to deal with the matter. I would like to have the Minister's opinion as to whether, if amendment 1 were carried, it would defeat the object which the Senator has in view.

Mr. Duffy

There is one matter in connection with these old workhouses that I would like to deal with. Local authorities have been held responsible for the upkeep and repair of them as well as for the payment of their caretakers. While that is so, the claim is made that the Department of Local Government really owns these workhouses. The point that I want information on is this: In the event of these workhouses being sold, would the money derived as a result of the sale be credited to the local authorities?

Minister for Local Government and Public Health (General Mulcahy)

If the workhouses were leased, the money would be credited to the local authorities. I cannot imagine the workhouses being sold at present.

Mr. Duffy

If it is right that the money derived from the leasing of these buildings should go to the local authorities, why, in the event of their being sold, would not the capital value of them also go to the local authorities in whose area they are situate?

General Mulcahy

Without committing myself on that point, I will just say this: If at any time the Constitution were so amended, and legislation introduced, as to enable workhouses to be sold, then I cannot very well imagine the money going to any place or to any purpose except the purpose for which workhouses were originally provided. I should say that the moneys accruing out of the workhouses in that way ought to go for the purpose of poor relief inside the area in which the workhouses are situate.

Cathaoirleach

After the passing of the 1923 Act certain property was taken from local districts and sent to a central place, but there was no credit given to the local bodies for the property that had been taken from them.

General Mulcahy

If that was a question of taking certain property in the area of a particular board of guardians and removing to a central place, then complete responsibility for poor relief over the whole area was pooled, and to that extent the property taken did go to the relief of the people for whom it was originally intended.

Colonel Moore

I am very strongly opposed to the sale of any Government property, and particularly land. I am strongly against giving any Government the right to make sales of this kind. We do not know what Government may come in at any time. A Government with all sorts of fancy ideas might come in at some time or another. They might like to sell a piece of the Phoenix Park or the Curragh, which are now Government property and cannot be sold. If sales of that kind were permitted they could not be gone back on afterwards. Therefore, a Government that succeeded the one that had consented to the sales might resent the action of their predecessors and feel very much the loss of the property that had been disposed of. I agree that it is very hard to expect the local bodies to be put to the expense of keeping these workhouses in repair when no use is being made of them. But I think they ought to be used for some purpose. If alterations were carried out in them they could be utilised for providing housing accommodation for the people. Many Senators are aware that an old military barrack near the Phoenix Park is now occupied by quite a large number of poor people. Alterations were carried out in it and accommodation provided for many families. The same thing, I think, could be done in the case of many of these workhouses.

I would not like to give general authority to any Minister to sell public property of this sort. The fact that a certain lawyer, as the Senator has told us, has given it as his opinion that it is possible that some other meaning might be given to the wording of the Constitution than that given to it by the Government does not mean much. You could get another lawyer who would give you quite a different opinion. If you were to go on in that way it would only result in a nice job for the lawyers. What I object to is that land, especially, and large buildings should be sold and put out of the reach and control of the people of the country. There is authority already to lease these buildings for 99 years. In fact, there are houses in Dublin let for 99 years or for a lesser period. I think that ought to be sufficient.

Mr. Comyn

I am very glad to support Senator Moore in the statement which he has made with reference to the alienation of public lands. The worst thing that could possibly be done is to permit alienation of public lands. That is a matter which is as clear in constitutional history as any other question. It leads to corruption wherever it has been permitted. The thing was so bad that there had to be a special prohibition against the absolute alienation of public lands. That is the reason why in all cases where property is vested in the public the only way in which you can get any right to it is by lease, sometimes in the case of the foreshore of a lease for twenty-one years, and sometimes for ninety-nine years, but the absolute out-and-out alienation of lands is, as experience has proved, one of the worst things that could be done. The four amendments are to be taken together. I do not differ from the opinion which has been expressed by the lawyer who was consulted by Senator Toal. I have had occasion to go rather closely into that Article of the Constitution. I think there are a great many loopholes in that Article.

Whether the opinion Senator Toal has quoted is accurate or not I think, if this Bill is passed in its present form you will have a statutory declaration as to the meaning of the Article of the Constitution, because not alone have you in the Title of the Bill a statement that the lands by virtue of Article 11 of the Constitution belong to Saorstát Eireann, but you have in Section 2 an enactment that these lands now by virtue of Article 11 of the Constitution belong to Saorstát Eireann. Therefore if the Act is passed in its present form it is immaterial what opinion is given, because any Court hereafter will be bound to decide upon the construction of Article 11 that these workhouses are vested in the State. I think these words ought to be deleted, but at the same time I agree with Senator Moore that we ought not to allow an out-and-out sale of public lands.

Mr. Johnson

I take note of the fact that this is the Report Stage of the Bill, and, therefore, it is presumed the Seanad has already agreed to the principle of the Bill itself. I cannot see that the desire of Senator Toal, which is, I presume, to give effect to the opinion of counsel, is going to be effected by the passing of these amendments. Senator Comyn may be right, that this Act will be a declaration that workhouses now vested in the Local Government Department on behalf of local authorities have by the passing of this Act been declared to be vested in the State. I am not sure whether that is true or not, but I differ with the Senator to this extent, that as a matter of law to the layman it does not appear to me to have that effect at all. I draw attention to the fact that the Bill, right through, does not mention workhouses—I am speaking of the Bill and not the Title—and conceivably there are lands which may be vested in the Local Government Department and which have not workhouses built upon them, and the Bill may refer to such properties as those lands, but in any case, how can the effect desired by the Senator be secured by deleting this reference to Article 11 of the Constitution? It does not seem to me to follow at all. If the Minister will deal with this point I will be glad. According to the Local Government (Temporary Provisions) Act, 1923:

"The Minister may sell, lease or otherwise alienate all or any lands or buildings which are or shall at any time be vested in him in trust for any body abolished by any county scheme."

If it is thought necessary to have a declaratory Act to make it clear that all these lands and properties which are being held by the Department in trust for local bodies are being brought within Article 11 of the Constitution it seems to me that there should be a clearer and more definite indication by an amendment of the Constitution, if necessary, or by a formal Act declaring that these things are vested in the Department, and not allow them to come in by a possible inference and be subject to dispute as between lawyer and lawyer. If the present Bill is intended to correct the Local Government (Temporary Provisions) Act, 1923, it is the wrong way to go about it. Perhaps the Minister would say whether his intention is to repeal Section 8 of the Local Government Act, 1923?

Sir Walter Nugent

I am not quite clear what it is the mover of the amendment wants to accomplish. I do not share the view of Senator Comyn that it would be a dangerous thing to alienate property which was not wanted for the purposes of workhouses. I do not see any object in retaining workhouses or any other property not required. I am in favour of alienating such property and making something out of it, which is not being done at present. We have had too many workhouses and the cost of their administration was too great. I have always felt that the money spent on them could have been better spent on outdoor relief. I agree with Senator Johnson that the amendment would not achieve what is wanted. I understood the Minister to say that under no circumstances would the money acquired from the sale of land be diverted from the local bodies. If that is the case, then what the Senator wants to have done is achieved by the Bill as it stands.

Sir Thomas Esmonde

My sympathy in this matter is altogether with the ratepayers. There are many disused workhouses throughout the country, and the ratepayers have to bear the cost of their upkeep. I do not know whether the county councils now are permitted to let disused workhouses, or whether they can sell them. That is immaterial so far as my argument is concerned. It seems to me that this Bill can be amended, or another Bill introduced, so as to give the Local Government Department power either to let or sell any disused workhouse or other public building. I think that would be the way out of the difficulty. It must be remembered that it was the ratepayers who originally provided the money for these buildings, and I would be inclined to relieve them as far as I could of the expense of their upkeep.

Mr. Brown

I hope the House will not assume there is any declaration in this Bill which will vest property in the State which is not already vested. The only section which could in any way be construed as a declaration to that effect is Section 2.

"This Act applies to all land which immediately before the 6th day of December, 1921, was vested in the Local Government Board for Ireland under or for the purposes of the Poor Relief (Ireland) Acts, 1838 to 1914 and now by virtue of Article 11 of the Constitution belongs to Saorstát Eireann."

That will not make any of these lands on which workhouses were built the property of the State if they were not the property of the State before the Act was passed. Senator Toal's amendment will raise the question definitely if they proceed to sell, because you could not by virtue of any condition of sale that any lawyer could draw make a man take no title. The purchaser will raise the title at once, and the question will be decided by the courts, as it ought to be, for this is not the tribunal to decide on the construction of our Constitution.

General Mulcahy

In reply to Senator Johnson, this Bill is not intended in any way to repeal Section 8 of the Local Government (Temporary Provisions) Act, 1923. The purpose of the Bill is to replace the Minister for Finance by the Minister for Local Government in connection with these lands under the State Lands Act, 1924, and by doing that to do in respect of these lands what the Minister for Finance would be glad to do for other lands for which he is responsible, that is, to make arrangements for short lettings, but the main purpose is to replace the Minister for Finance by the Minister for Local Government in respect of these particular lands. Section 8 of the Temporary Provisions Act was passed on a misunderstanding that these lands did not come under Article 11 of the Constitution, and arising out of the passing of that Section 8 an order was issued by the Department of Local Government instructing how short lettings should be arranged. In 1924 we were advised by the highest legal authority we could get that Section 8 was ultra vires, and that these lands did come under Article 11 of the Constitution, so that while not directly answering the Senator as to whether this amendment, if put in, would effect what was intended, I will say if this amendment were put in it would be no more operative than Section 8 is operative at present, for it would be against Article 11 of the Constitution, and the highest legal advice on which we rely when framing our legislation is that these lands come under Article 11.

If the question of workhouses and lands vested in the old Local Government Board is raised it ought to be raised as a separate matter and it would first have to be raised as an amendment to the Constitution, so with that before our minds I think the Seanad will understand there is little use in the amendment. We do not doubt our own legal advice, but I think it would be inadvisable to put in the amendment at this stage of the Bill, and not only because there is a strong doubt about it, but because it stretches the whole fabric of the State Lands Act, 1924. This Bill is intended to take the fabric of the State Lands Act of 1924 and substitute the Minister for Local Government for the Minister for Finance. I hope the Senator will appreciate that we think these lands do come under Article 11 of the Constitution, and we could not make any use of this amendment, even if enshrined in legislation.

Mr. Toal

I am sorry the Minister has taken the view he has taken. I look upon this as a very serious matter. It is possible if we could get other county councils to join us in the matter that we would take action in the court. Of course, the Minister must admit that other legal advisers in the State have views different to that which he has quoted. The Minister is advised by the Attorney-General, and I suppose he is bound to take his advice, but the view of the Attorney-General is only one legal opinion, and we have confidence in the legal opinion we have obtained. The legal opinion we have received states that at the date of the Constitution the workhouses were vested in the Local Government Board, which had power to sell, and then reference is made to Section 8 of the Local Government (Temporary Provisions) Act, 1923, where that view is confirmed. I think it is a great pity that the local bodies have not taken joint action on this matter. I am surprised the Bill got through the Dáil without this matter being questioned. Local authorities have workhouses on their hands which they are bound to keep in repair, and they are hampered by an Act of Parliament from making the best use of them. We are obliged to keep these workhouses, which are only eye-sores, as a reminder to us of evil days. However, I do not wish to press this matter to a division.

Amendments, by leave, withdrawn.

Report Stage agreed to.