Arterial Drainage Bill, 1944—Report Stage (Resumed, amendment No. 10).

Mr. P. O'Reilly

I move amendment No. 10:—

In page 17, Section 23, after sub-section (5) to insert the following new sub-section:—

For the purposes of effective maintenance of an existing drainage district by the council of a county or councils of counties (as the case may be) it shall be lawful for the said council or councils to execute such maintenance and carry our such repair to existing watercourses situate wholly or in part outside an existing drainage district as appear to the council or councils to be necessary or expedient.

In moving this amendment, I seek to give powers to a county council to carry out maintenance or repairs of drainage work on a watercourse that, in the opinion of the council concerned, is necessary, from the point of view of maintenance or repair, because it has been indicated by the Report of the Drainage Commission, that many drainage districts were not effectively planned: that they were planned purely in regard to their economic aspect, and that, because of that fact, many watercourses that should have been included in the drainage district were not included in it and, as a result, no maintenance or repair work was carried out in connection with that particular watercourse. I can see that for a long time local councils cannot be charged with that maintenance, and in order to ensure the best possible results I think it is necessary to insert this amendment in the Bill to enable those watercourses to be repaired or maintained by the county councils in order to prevent flooding and other damage.

I agree that this may cause a certain amount of worry to the Parliamentary Secretary, and that he may see something in this amendment that I do not see. Perhaps it may not be necessary to insert this amendment, because I think that Section 49 gives power to the county council or to any Minister of State to initiate work on a particular watercourse, but I am not so sure as to whether a county council can have effective work carried out on a water-course in a drainage district under that section. Perhaps it is possible to do so, but I, personally, fail to see how the money can be provided under that section for the carrying out of such work. Again, I fail to see how the work can be carried out by various Ministers of State, or how the money can be provided by the county council, because it is clear to me that money can only be provided for the maintenance of existing drainage districts. For that reason, I am not satisfied that it is possible for a county council to carry out maintenance and repair work in connection with an area that is not wholly within a drainage district. That is my reason for moving this amendment. Perhaps the Parliamentary Secretary may be able to clarify this point, and if he can do so, I shall be satisfied to withdraw my amendment.

This amendment would have the same effect as an amendment which was moved by the Senator on the Committee Stage—amendment No. 22, I think it was—which was subsequently withdrawn. On that occasion I indicated my attitude on this matter, and I do not think there is any reason or necessity for my going into it now. I do not see that the giving of the powers set out in this amendment is necessary; nor do I think it would be wise to give them, nor, if they were given, that it would be wise, or even possible, for a county council to exercise them. I can only repeat that county councils will have their hands full in trying to maintain, up to a decent standard, the districts within their control and those which will be handed over to them under Section 23. To think or expect that county councils can go outside the district and engage in doing new drainage work, to my mind, does not make sense.

Is the amendment being withdrawn?

Mr. P. O'Reilly

What about Section 49?

Section 49 deals with a different matter. Section 49 is designed to secure that where moneys are provided, as a result of employment schemes or of rural improvements schemes, and where a landowner in the vicinity of the proposed work objects, the right is given to a local authority, or other named persons, to move to have the dispute adjudicated upon in the manner that is set out.

Amendment, by leave, withdrawn.
Government amendment No. 11:—
In page 18, Section 28, sub-section (2), to delete paragraph (a) and substitute therefor the following paragraph:—
(a) the responsible council or the responsible councils of any such existing drainage district may, in their discretion, make such concession as they shall think proper in regard to the mode or time of payment of any arrears of drainage rate or drainage charge owing to such council or councils on the appointed day.

This amendment is intended to carry out the assurance which I, more or less, gave during the discussion on amendments Nos. 24 and 25, in which Senator Sweetman was interested.

The amendment does not meet my point in exactly the way I had in mind but it avoids the nasty principles to which I referred.

Amendment agreed to.
Government amendment No. 12:—
In page 31, Section 47, to delete sub-section (1) and substitute instead the following sub-section:—
(1) It shall not be lawful for any person (other than the Electricity Supply Board), without or otherwise than in accordance with the consent of the commissioners to erect, enlarge or alter any weir or other like construction in a watercourse where such erection, enlargement or alteration might cause flooding of any land unless—
(a) such erection, enlargement or alteration is made in compliance with an Order made or a notice served by the Minister for Agriculture under the Fisheries Act, 1939 (No. 17 of 1939), or
(b) such land is in the occupation of such person, or
(c) such land is in the occupation of other persons who have assented to such erection, enlargement or alteration.

This amendment is intended to meet the point raised by Senator Kingsmill Moore. We agreed to have a joint discussion and it is as a result of that discussion that this amendment makes its appearance.

Amendment agreed to.
Amendment No. 13 not moved.
The following Government amendment was agreed to:—
14. In page 38, Section 53, before sub-section (5), to insert the following sub-section:—
(5) Where the Minister confirms a by-law made under this section notice of such confirmation shall be published in theIris Oifigiúil and in one or more newspapers circulating in the district in which the drainage works to which the by-law relates are situate.

I move amendment No. 15:—

In page 40, Section 57, before sub-section (6), to insert a new sub-section as follows:—

(6) The commissioners may on the application of a drainage board or of a drainage trustee, and with the consent of the Minister, enter into an agreement with the council (in this sub-section referred to as the internal council) of a county in which is situate so much of a drainage district to which this section applies as is inside the State providing for the control and management of that part of such drainage district and the maintenance of the drainage works therein by the internal council.

There has been so much discussion about this matter that I am reluctant to open up the question again, but we should have the situation clarified. For the benefit of the House, I should like again to indicate briefly the peculiar position which will exist after the passing of this Bill. In Cavan, where we have a drainage district partly inside and partly outside the State, part of the drainage works will be administered by the county council and other parts by drainage boards or trustees. My amendment seeks to enable the Minister to make arrangements with a council, such as Cavan, Leitrim or Monaghan County Council, to take over the maintenance of some of those works which form part of a scheme which is partly inside and partly outside the State. I should like to hear from the Parliamentary Secretary what the difficulties in the way of that being done are.

I want to explain to the House the situation which will have been left unsolved after this Bill becomes law. The Lough Gowna, Lough Oughter scheme has within it part of the drainage of the Erne, on which a considerable sum of money has been spent. Where that money has been spent in recent years, the district is to be administered by the county council. But there is the extraordinary position that only part of the district is to be administered by the county council. Another part is to be administered by drainage trustees. The carrying out of this scheme involved the raising of a sum, as a county at large charge, by Cavan County Council of about £30,000. £30,000 was to be raised off the riparian owners and there was to be a grant of £30,000 by the State. Ratepayers in Cavan will get three demands for drainage rates.

If I am a riparian owner, I may get a demand from the county council as a ratepayer for my portion of the £30,000 which the county as a whole contributed to the original drainage works. Then, I may get a demand for another sum as a riparian owner whose lands were benefited as a result of the drainage works. Although I may have had some of my lands drained by the carrying out of the work, there may be other drains on my land which were not improved or touched and which are still part of the Lough Gowna, Lough Oughter district. I shall, accordingly, have a further demand from the drainage trustees administering the drainage district. That is the position in Cavan at the moment and I do not know whether Senators will be able to make head or tail of it.

A drainage board operating in part of that area has recently sent out a demand to 1,200 ratepayers for a drainage rate. Some of the demand notes show that they are partly for current expenditure and partly for arrears going back as far as 1923. There is utter confusion there at the moment. It is impossible to expect anything to be done until that situation is straightened out. I saw a protest meeting advertised the other night in connection with this demand. The attitude of the people is that they will not pay. They say that, in a large part of this district, no work was done over the period on many of the drains and that they are being asked to pay for a service which they never got. The only way of straightening out that position is to allow the county council to take over the maintenance of the whole district. They are levying a rate over the whole county for portion of the maintenance charge already. I see no way of having the matter satisfactorily handled except by giving the county council the power I suggest. I do not know what the objection of the Parliamentary Secretary to that course is. Unless something be done, there will not be any rates paid or maintenance work done, and the problem will be a much bigger one because of the neglect. In sub-section (6) the Parliamentary Secretary is taking power to make arrangements with the council of an outside county. That matter has been already discussed. What I am asking is that the commissioners may, on the application of a drainage board or of a drainage trustee, enter into an arrangement with a county council providing for the control of a drainage district and maintenance of the drainage works in so far as they are inside the State.

I urge on the Parliamentary Secretary that this is the only way to bring to an end what I suggest is utter confusion, a position in which there is very considerable apathy, where a limited number are paying drainage rates and where others are not making any contribution. This is the only way I can see by which you can establish some authority that will be recognised and that will make a reasonable effort over the district as a whole to maintain the existing works. I think if this amendment were accepted it would put the commissioners in a position to get machinery to do work that has been neglected and that will be neglected so long as the present confusion continues.

Mr. P. O'Reilly

I have a lot of sympathy with Senator Baxter's amendment because, as he stated, there is a position of confusion in regard to drainage districts that are partly within and partly outside the State. As regards the particular drainage district to which Senator Baxter has referred — Lough Oughter, Lough Gowna and the River Erne district— I am not sure whether that is one district or whether there are a couple of districts, but if there is only one district, the position is as Senator Baxter indicated. That is, that up at the Six-County Border all the district is under the control of the Drainage Board. The part in County Longford and Leitrim is also under the same board. In between, there is a new district set up by the final award of the drainage schemes carried out under the Drainage Act of 1925, about which the Parliamentary Secretary has so often spoken. If there is to be effective maintenance—and I should like to see effective maintenance—I do not think it will be achieved by the Drainage Board unless the Parliamentary Secretary introduces some other method of carrying out improvements because the report of the Drainage Commission indicates that the history of drainage boards shows that they have been a failure. While county councils have also been to some extent a failure, they have not been the same failure as drainage boards and drainage trustees.

I know the Parliamentary Secretary is quite conversant with the needs of this district, but there is another very important drainage district which is also affected by this section, and which would be affected by this amendment. That is what is called the Ballinamore. Ballyconnell Canal. That is a scheme carried out under the Drainage Navigation Acts from 1842 onwards. The cost of that scheme as set out in the final award was £258,651 10s. 5d. Approximately £30,000 was raised by the Grand Juries, the predecessors of the different county councils, of Fermanagh, Cavan, Leitrim and Roscommon, in certain proportions as set out in the final award. As well as that, a Navigation Board was set up to control the navigation of that canal. It was a fully-fledged canal with locks and all the paraphernalia associated with a canal. In the event of the inability of the navigation trustees to collect sufficient revenue to enable them to maintain navigation, they had power to collect navigation maintenance from the Grand Juries mentioned and subsequently from the county councils. The position at the moment is that the trustees should be appointed by the different county councils. The County Councils of Cavan, Leitrim and Roscommon do not appoint navigation trustees, but the Fermanagh Council does appoint trustees, and these trustees have the right under the Act setting them up to collect from the councils a sum to maintain navigation on the canal that was never intended to be a success from a navigation point of view. When the canal was built the only form of transport was horse transport, and yet that canal connected up certain lakes across which it was impossible to have water transport unless we had water horses. The canal is now in a state of disrepair. I agree that it is of great importance as an arterial drain. Great improvement was effected from the drainage point of view by the carrying out of the scheme in the first instance. It was a very costly scheme as I have shown by the figures set out in the final award. That work, together with the River Erne mentioned by Senator Baxter, would be covered by this amendment of Senator Baxter.

I have, as I say, a certain sympathy with Senator Baxter's amendment as this is a burning question, but I am not so sure that Senator Baxter's amendment will cover the matter because apparently the Parliamentary Secretary does intend to make some arrangement with an external council, as the Bill puts it, to carry out certain works. I agree that that would be the more efficient way of dealing with the matter, but in the event of failure on the part of the Parliamentary Secretary to achieve agreement what is going to happen? It will mean that those drainage districts are going to be left in the same old condition and that nothing is going to be done with them unless the Parliamentary Secretary undertakes to bring in legislation at a later date if he is satisfied that nothing can be done by way of making an arrangement with any external authority. We have no guarantee as things stand that any arrangement made by the county council will have the force of law in the area where it is proposed to make that arrangement with the external authority. If we are to gauge how far the Parliamentary Secretary will be successful, we have the fact that the Minister for Industry and Commerce in the Dáil when introducing his Electricity (Amendment) Bill gave some indication as to the measure of co-operation he got from the outside authority. There is a possibility that the Parliamentary Secretary will find himself in the same position. For that reason, I think that the Parliamentary Secretary, if he thinks this amendment is unacceptable, should undertake to re-examine the position and guarantee to introduce amending legislation so as to bring about some measure of relief and water control in the areas where those drainage districts are partly within and partly outside the State, in some form such as would enable the county councils to take responsibility for as much of the drainage districts as is within the State, in the event of failure to achieve some arrangement for maintenance in the first instance and reconstruction in the second instance. I think that would be the proper thing to do—that in the event of failure to achieve the results which the Parliamentary Secretary hopes to achieve under this section, he would guarantee to the House to bring in amending legislation.

Suppose I tried to get the Senators who are interested—before I am asked to make a further investigation of the problem—to study it a little more, I imagine that we will be making some progress. Senator Baxter has referred to the Lough Oughter, Gowna and River Erne district. That is not a trans-border district. Who ever said that it was? That district has nothing to do with Section 57 which we are now considering.

Does that mean it will come in with the Ballinamore and Ballyconnell district?

The funny part about it is that the case put forward here is made on the basis that the Lough Oughter, Gowna and River Erne District is a trans-border district. No confusion of the kind mentioned by Senator Baxter can arise regarding it as to the many different rates payable in that district. There is no such situation in existence. Look at the Lough Gowna district, extending from Lough Gowna almost to the Border, below Belturbet. All that portion in the hands of the drainage board of trustees will be transferred to the County Councils of Cavan and Leitrim.

How far will it come down?

The old district extended almost to the Fermanagh border.

What about the other districts?

There are only two trans-border districts affected by the section. One is the Lough and River Erne district, and the other is the Ballinamore and Ballyconnell district. During the previous discussion I set out as clearly as I could the manner in which we propose to deal with these districts. The Lough and River Erne district is scarcely concerned, in so far as the area over which we have jurisdiction is very small, but the Ballinamore and Ballyconnell district is different. I clearly stated the position on the last day. Senator O'Reilly and Senator Baxter know that district fairly well. If there is a board elected by the riparian owners of Leitrim, Cavan and Roscommon—a board of 15 members— in the manner I have described, with the vast majority elected from Leitrim and Cavan, with powers to strike the rates they regard as sufficient for maintenance and with powers to recoup these riparian owners from the general rate of the County of Leitrim, I cannot for the life of me see how that form of maintenance of the district should fail. Whether I am right or wrong, I give it as my opinion that there is every reason why that district should be maintained, even at a higher standard, under these provisions, than the districts that are being transferred to the councils of the Twenty-Six Counties.

In the first place, the district to which Senator Baxter has referred is not affected by this section. This section was designed for such a district as Ballinamore and Ballyconnell. The Fermanagh part of the area is outside our territory and jurisdiction, but so far as the maintenance of that district is concerned, I can see no reason why it would not be maintained at least as good—and I would venture to guess that it would be maintained at a higher standard—as any other district under the control of local authorities.

May I ask a question to try to get the matter clear? Did I understand the Parliamentary Secretary on the last day to say that the Fermanagh County Council elected the trustees?

That was a slip on my part.

I am not trying to catch the Parliamentary Secretary out.

But it was a slip, and I did not even correct it in the Official Report. I was referring to the navigation trustees in Fermanagh, Leitrim, Cavan and Roscommon Counties. The drainage trustees are elected by the riparian owners of Leitrim, Cavan and Fermanagh. I think there are 15. Twelve of them are elected, six from Cavan and six from Leitrim, and there are three from Fermanagh. But although I made a slip in my reply, it does not affect the strength of the argument at all.

I do not want to raise too many points, but I would like to be clear as to how the machinery is going to be made operative. In the case of this Ballyconnell and Ballinamore canal, the navigation trustees have never done anything. The Parliamentary Secretary must know that himself. Are we to have any machinery whereby these navigation trustees will become effective? Although they were supposed to be in existence for many years, there was not, in fact, any maintenance done. How will the position be clarified? Will the Commissioners of Public Works take any action to get these people to do their work?

Is the Senator referring to navigation or drainage work?

I am referring to the navigation trustees. I understand that drainage rates were paid on the canal.

By whom?

By the riparian owners.

No, they are bulk sums paid by county councils. It was the Councils of Leitrim, Roscommon, Cavan and Fermanagh who paid the rates to the navigation trustees, for whose activities we have no responsibility whatsoever.

And not going to have?

Not going to have.

And are they still bound to pay a drainage rate?

The Senator is aware of the Leitrim County Council litigation in that case and the High Court decision. I have no responsibility for navigation, and I do not think it would be in order to have a discussion on navigation.

That is why I was trying to get the matter covered, but it seems the position is going to be left indefinite.

I do not think that it is fair to raise the matter of navigation with me. I know the peculiar legal position that arises from the existence of a navigation authority and I think I have sufficient knowledge of it in the light of this Bill——

You have more than I have naturally.

——but at the moment I cannot change it. I have no responsibility and no authority. It is a matter in which the Department of Industry and Commerce has the responsibility.

I thought we were taking powers over canals. I cannot quote the section referring to navigation but I believe there is one.

Mr. O'Reilly rose.

The Senator has already spoken on the amendment.

Mr. O'Reilly

I thought I was getting the same latitude as Senator Baxter.

Senator Baxter, as the mover of the amendment, has the right to reply.

Perhaps I will have an opportunity on the next stage of going back on this again.

Amendment, by leave, withdrawn.

I move amendment No. 16:—

In page 42, Section 58, to insert after sub-section (4), line 32, the following new sub-section:—

( ) If, within one month from the passing of this Act, the council of the County of Limerick by resolution (of which resolution notice has, within seven days from the passing thereof been given by registered post to the commissioners) requests the commissioners to prepare and publish a draft award and ultimately a final award for the Mulkear and Cappamore Drainage Scheme, in accordance with the provisions of Sections 14 and 15 of the Act of 1925, the commissioners shall thereupon proceed so to do and the three immediately preceding sub-sections of this section shall on the receipt by the commissioners of notice of such resolution be void and have no effect.

The wording of this amendment is somewhat innocuous. In reading it in the ordinary course, if one did not appreciate the point of view that was behind it, one might not realise that it effects and substantiates what I consider one of the most vital principles for which this House should stand. The Parliamentary Secretary, and also —having regard to the end of the second last day's sitting—Senator Hearne will be relieved to hear that I have no intention of discussing the merits of the Mulkear and Cappamore drainage scheme, or whether the river flows up the hill or down the dale. I am interested purely in an objective principle, an objective principle which it appears to me that Section 58 of the Bill, as introduced by the Parliamentary Secretary, completely and absolutely violates. We all know that there was, in connection with this scheme, litigation in the High Court, and I want to say now at the very beginning that I am in complete and absolute agreement with the Parliamentary Secretary when he says that the entire effect of the judgment of Mr. Justice Overend was that the next day the Commissioners of Public Works could have made a new draft award, could have held a new inquiry under the inspector as provided by the 1925 Act, and could eventually have made a final award. That was the entire effect of the judgment of Mr. Justice Overend, and, if the effect of this section were to leave it at that, then there would be no reason at all for the amendment which I have down in my name.

We have got to go back a little bit on this. The situation as I see it was that the Limerick County Council, after the draft award had been made, and when the inquiry on that draft award was being held, went into the inquiry and put it up to the inspector at that time that the works were not ripe for an inquiry, and that the inquiry should, therefore, be postponed until the works were completed. The inspector held a different view, and in consequence of that I am informed that the representatives of the Limerick County Council withdrew from the inquiry, and that the inquiry continued without them. At this stage, the Limerick County Council sat down to consider what their rights really were. Having sat down to consider their rights, they were told by their legal advisers that their rights were this: That the only way in which they could get considered the matters which they held should be considered at the inquiry was to move in the courts so that the draft award would be upset, and that when that draft award had been upset, a new formal inquiry would have to be held, as a result of which they would be able to bring in evidence to their heart's content to show at that inquiry the merits of the contention which they wished to put forward. Accordingly, they introduced their proceedings in the High Court, and those proceedings wended a very long and tedious way. I understand that practically the entire delay from time to time arose because there were negotiations shuffling backwards and forwards between the various parties to see if a way out of theimpase could be arrived at without recourse to the decision of the judge. No way out was found, and it had to go to final judgment. As a result, in that final judgment Mr. Justice Overend declared, as the Parliamentary Secretary rightly said: “Yes; the Limerick County Council are entitled to have a new draft award and a new inquiry.” At that new inquiry Limerick County Council alleged that they could bring forward certain matters on the merits of this claim as to whether they should or should not rightly be considered as part of the cost. I am not going to discuss whether Limerick are right in that, or whether they are not.

On the last occasion, when discussing this Bill in Committee Senator Madden put down an amendment which was ruled out of order. The effect of that amendment was to ask me to judge that Limerick were right under the merits of their claim, and that the commissioners were wrong. If that amendment had been pressed, I would have felt that I did not know sufficient about the matter to judge in that way, and that I could not, therefore, support the amendment. I would have felt that the amendment was calling on me to take over a position for which I had neither capabilities nor time nor information nor evidence available. In consequence, even if the amendment had been in order in accordance with Standing Orders, we could not possibly have accepted it there and then.

Now, I turn to an entirely different aspect of the situation, and I find that just what Senator Madden was asking me to do for Limerick County Council the Parliamentary Secretary is asking me to do on the other side in his section as it stands. His section as it stands is asking me to accept that the Commissioners of Public Works are right and that the Limerick County Council is wrong. I am not going to take up that point of view either. I am not a judge, and I suggest that this House is not a body of judges. It is our duty not to judge on the rights or the wrongs of a particular case; not to judge whether an individual is correct in his view and in his interpretation of the law as it stands, but to ensure that we, so to speak, keep the ring open; to ensure that we keep it open for an individual or for a local authority—because there is no difference so far as I can see—to have recourse to the rights that he is given, and to ensure that the person properly qualified to judge does judge when it comes to the point. I do not know, and again I suggest that it is not for us to decide, whether the Commissioners of public Works or the Limerick County Council were right as to what could or could not be done at an inquiry. All I suggest is that we are bound to satisfy ourselves that one of the parties to litigation has abona fide belief that he has a case, and that, when we do satisfy ourselves that that litigant has a bona fide belief that he has a good, sound and just case, it is not for us to step in and say: “No; you are not going to go on with that case. Although you have got over the first fence, we are not going to let you even come to the second.” That is the whole point in this particular trouble. It must be considered as one continuous course of litigation—the setting aside of the draft award and the holding of the new inquiry. The Commissioners of Public Works were told that their draft award must be set aside; that Limerick had, so to speak, got over the first fence. Now, when they are coming along half way to the other, the Commissioners of Public Works or the Parliamentary Secretary are saying: “You are not going to be allowed to go any further. You are not going to be allowed to pursue your rights any further”.

All I have suggested in this amendment is not that the Limerick County Council are right—because I do not know whether they are or not—but that there was at the date when the Limerick County Council first started their litigation certain statute law in force. All I am saying is that so far as they—the people who proved that the Act was not what everybody up to that had believed that it was—are concerned, they should not be penalised because they went into the courts to prove that the Commissioners of Public Works were wrong.

If the section is passed in an unamended form that is what will happen. It is not only a question of Limerick County Council and the Commissioners of Public Works. It is a question of every individual in the State versus a Government Department. If this particular principle is accepted, that no matter what words are put down in black and white by the Oireachtas, if these words hurt or harm a Government Department, and if an individual should prove that the Government Department was wrong, and that he was right in his interpretation of them, if in such circumstances the same thing can happen, that individual will be told that there has been a precedent for retrospective or retroactive—whatever term you like to use —legislation to be brought in to nullify the decision of the court. If there is retrospective legislation that individual will be told: "If you choose to pursue your case there is the same danger that the same thing will happen again." The result will be that the individual will have no right against the Government of the day no matter what that Government may be, and we will find ourselves disintegrating and going down hill to the position in which the courts which we honour and respect will not get that respect and honour which is their due. For this reason, and not on the question of merit of the particular case of the Mulkear, I strongly urge the Parliamentary Secretary and the House not to accept that principle, and that the judge appointed by the Act of 1925 on which the Limerick County Council started the litigation should be allowed to consider the litigation commenced by them some time ago.

When this Bill was in Committee and I spoke on the matter at that time I had not access to the pleadings or the judgment of Mr. Justice Overend or the order made on foot of that judgment. The Parliamentary Secretary has kindly placed these documents at the disposal of Senators and I have taken advantage of them to glean for myself some of the facts of this litigation. I could not obtain from them any information as to the merits of the engineering scheme itself but I am satisfied that the order made by Mr. Justice Overend was that the draft award was premature, that the public inquiry on foot of the draft award was premature and was not a public inquiry for the purposes of the draft award, and that the final award made was a nullity because it was not made in accordance with the provision of the draft award. Mr. Justice Overend awarded costs of the action to Limerick County Council. I presume that they have been paid or are about to be paid when they have been taxed in the proper way and on the proper scale.

There is no question of taking from the Limerick County Council the costs that have been awarded in the action. The result is that at the present time everything is open. It is as if the draft award had never been made or the draft award inquiry had never been held. What is to be done in these circumstances? The 1925 Act is there and the Commissioners of Public Works would be entitled to make a new draft award and hold a new public inquiry on foot of that draft award and then make the final award. Of course, there may be slight legal difficulties in carrying out that scheme. It seems quite simple, but there may be difficulties which are not yet apparent. At all events that would be the normal position in a normal time, that is, if the law should take its course. In this case, however, the Commissioners of Public Works feel that the time has come when the final award must be made in respect of this drainage scheme, so that as a result of the final award the scheme may be handed over to Limerick County Council for maintenance.

Up to the present the drainage scheme has been in the air. It has been in the hands of the commissioners for a number of years, due probably to the long litigation extending over six years, almost as long as the drainage scheme itself. Commonsense would require that this matter should be brought to an end here and now. While the strict legal right of the county council would be to have this process all over again—the draft award, the inquiry and a final award, and perhaps another action to last seven or eight years—while that may be their legal right, it is I think contrary to commonsense and good business. After a war peace is made. Limerick County Council and the commissioners have, to my mind, waged a foolish war for the last eight years. There have been deputations at intervals from Limerick County Council to the Commissioners of Public Works. Personally, I am opposed to these unwieldy deputations from local bodies which come to see heads of Government Departments, because there is a certainty that among these deputations there is a number of tactless individuals who immediately upset the applecart of negotiation once they enter Government Buildings. I have the firm belief that we would not be discussing this section here to-day if there had been tact and commonsense on one side or both sides in this case.

I have here an Act which was passed in 1943, the District of Fergus Drainage Act. It was passed in pursuance of an agreement between the County Councils of Galway and Clare and the Commissioners of Public Works. If Limerick County Council and the Commissioners of Public Works had agreed that it was time to bring this Mulkear Drainage Scheme to an end it would have been ratified without question by legislation. In this case, however, a different course has been taken. We have heard a great deal about retrospective and retroactive legislation, but this is not, in my opinion, retrospective legislation. It isad hoc legislation, which is worse than retrospective legislation because we are legislating against an individual. It may be a county council but we can call a county council an individual and we can take the riparian owners to be an individual. The position then is that a Parliamentary majority can at any time pass legislation to oppress an individual. I think that is wrong and personally I would fight against it to the end.

Now, if we accept the principle thatad hoc legislation is wrong—it may be necessary in certain events, but it is unnecessary, I say, in this case—then, we must soften the hardship of ad hoc legislation as best we can. The Commissioners of Public Works rightly feel that they have had hard luck in this matter. They worked hard on that scheme; they did good work, and I, personally, am satisfied, that the engineers in charge of the drainage schemes under the Board of Works are thoroughly competent to do their work. Personally, I can say that I have always found them obliging and helpful; and I believe that if in this case they had been taken in the right way we would never have been troubled about this matter. However, all human beings are not built in the same way and, unfortunately, by reason of certain things which do not appear on the surface here, we have come to debate this very important matter.

The members of Limerick County Council are people of good standing. They have always honoured their commitments, and they have merits on their side—so, of course, have the Commissioners of Public Works. I think that the proper solution of this problem is this: that the time has come to make a final award. It would not be good policy—it would not be, as I say, a practical proposition—from the point of view of the drainage scheme itself, that we should return to these endless controversies that would inevitably arise from another public inquiry. I, myself, think that the members of the Limerick County Council are not adamant on the question of a public inquiry, and that although, no doubt, they may feel that the work is not fully completed, they may be advised that it is better to accept it as it is, but they certainly feel that they got a raw deal from the Government or the Parliamentary Secretary in regard to this matter.

Now, the final award was set aside by Mr. Justice Overend and, in connection with Section 58 of this Bill —but it would appear that that final award is again set up for the amount which was set aside by Mr. Justice Overend. The members of the Limerick County Council are what I might call realists: they are not idealists, like Senator Sweetman, who is concerned with a principle which could be discussed in an objective way. The members of the Limerick County Council are very much subjective in regard to this matter. They are very much concerned with the question of pounds, shillings and pence, which they have to collect from the ratepayers and riparian owners in County Limerick, and their objection is that the Parliamentary Secretary, in effect, asks them to hand him over a blank cheque, that he may fill in the amount they are to pay, and in this case he has filled in the blank cheque to the amount of something over £13,000. They object to paying that amount over for these works. They say that the sub-sections which the Parliamentary Secretary has inserted here are not very accommodating to the Limerick County Council, since the only power given to them is the power to borrow money in order to pay him.

So far as the Limerick County Council are concerned, it is a matter of pounds, shillings and pence, and so far as the Parliamentary Secretary is concerned it is a matter of getting rid of this old scheme, which has been on the hands of the commissioners for a number of years. The Parliamentary Secretary wants to get rid of it for the purpose of winding up the 1925 Act, so as to get this new legislation put through. Why cannot there be a reconciliation between the Parliamentary Secretary and the Limerick County Council? It may be said that the Parliamentary Secretary is not a man who can compromise. I do not agree with that, because we had an example in this case where, on Section 10 of the Bill, he did compromise with the Minister for Agriculture. Whether that compromise was a surrender or not, I cannot say, but the Parliamentary Secretary called it a compromise section, and I see no reason why there should not be another compromise section in this Bill.

The Parliamentary Secretary has drafted this section with a cut-and-dried demand on the Limerick County Council for a sum of over £5,000 beyond that which the county council originally agreed to pay. The Limerick County Council say: "We are not getting value for our money"; and the Parliamentary Secretary says: "You are". In my submission, the Limerick County Council are entitled to get a reduction for cash from the Parliamentary Secretary, for the following reasons: first of all, in the amount of the total award of £36,000 odd, there is included the cost of the first inquiry. Mr. Justice Overend had held that it was not an inquiry for the purpose of the Act and that therefore the draft award was a nullity. Accordingly, the Parliamentary Secretary is not entitled to regard an inquiry, which was not actually an inquiry in that sense, as part of the scheme, and to saddle part of the cost of the inquiry on the Limerick County Council. Secondly, Mr. Justice Overend said:

"It is clear upon the evidence that the works which had been done have resulted in very substantial benefit, though not perhaps commensurate with their ultimate cost."

Now, I am not going into the merits of the case—I am only taking this extract from his judgment—but he held that the works were not commensurate with their ultimate cost, and, therefore, not worth what was spent on them. The money was spent by the Commissioners of Public Works, and the Limerick County Council had no jurisdiction in that matter, and if the commissioners spent more than they should have spent, then I think that the Limerick County Council should not be saddled with that extra expense. Accordingly, I say that there is scope here for a compromise. That is a matter for agreement between the Limerick County Council and the Commissioners of Public Works, supported by the Minister for Finance, and I hold that the contribution of the Limerick County Council should be £1,000, £2,000, £3,500, or whatever it may be, less than what is provided for actually in the Bill. However, that is a matter that we cannot deal with in this House.

Senator Madden made a bold effort to bring about a settlement along those lines. I think that he went a little bit too far, but in this case the Parliamentary Secretary does not require to have his Bill until 31st March, or some time in March, and it appears to me that there is ample time for the Parliamentary Secretary to go back to the other House and obtain the consent of that House to some modification of the financial provisions in this section, and then to come back here with such modification, if it is agreed to. If he were to do that, I think I can assure him that this Bill will go through without a blot on it. It is unfortunate—unfortunate, indeed —that this dispute between the Limerick County Council and the Commissioners of Public Works should have marred a great measure such as this Bill undoubtedly is. This unfortunate controversy has dominated this Bill from the first moment the Parliamentary Secretary introduced his amendment in the other House until the present time. The Parliamentary Secretary would be well advised, for the sake of the success of the Bill, to start off with the good-will and good wishes of every local authority, because the Commissioners of Public Works, as the drainage authority, and the county councils must work together to make this measure a success. It would be unfortunate if this Bill were to get a bad start because of this trifling dispute between Limerick County Council and the Commissioners of Public Works. Blood is thicker than water, and we know that a number of other county councils are in sympathy with Limerick County Council.

Therefore I suggest that the commonsense way of dealing with this situation is to wind up the Limerick scheme on terms satisfactory to Limerick County Council and to the Commissioners of Public Works. I agree that the Minister for Finance has contributed, and is contributing, a large sum to the scheme, and it would be a question of only about £2,000 to settle this matter completely. Limerick County Council would, I think, accept that position and I am sure the other House would also agree.

It is significant that Deputies of all Parties from County Limerick were united in urging the Parliamentary Secretary not to proceed with this section. The residents of County Limerick feel very strongly about it.

Although I am a native of County Limerick, I am not a resident and, therefore, my temperature is lower than that of the representatives of County Limerick. Having considered the matter in as detached a manner as I could, I think that neither side should seek its pound of flesh. If we are to passad hoc legislation—legislation to deal with the case of an individual or a council—we should be most careful to do so only with the consent of the individual or council concerned. It would be the worst form of tyranny—tyranny in the name of democracy—that a Parliamentary majority should be used to impose an obligation upon an individual or upon one council. It would be the end of parliamentary government if that were to become a practice. Such legislation should never be invoked except for the benefit, or with the consent, of the individual or body. Everybody who has knowledge of the strength of the Executive as against the individual realises that the Executive has the advantage every time. The Executive found that the Gárda Síochána Compensation Act, 1941, did not carry out its intentions and to-day we had an amending Bill before us. If it should so happen that the individual failed to get what he expected out of the 1941 Act and if he succeeded in getting a Private Members' Bill introduced, it would be soon defeated if it were not acceptable to the Government. Therefore, where the Government has a Parliamentary majority, it has a great responsibility to the individual and it should use its power only for the public good and not to impose a penalty or liability upon an individual. In this case, it appears to me that the Commissioners of Public Works, having considered the judgment of Mr. Justice Overend, said to themselves in so many words: “We shall mark ‘paid’ to the account of Limerick County Council. We shall introduce this section and carry it through the Oireachtas and let those people see that they cannot trifle with a mighty Government Department.”

Whether retrospective legislation is good or bad is not in question here. Retrospective legislation may be good. The retrospective legislation contained in the Gárda Síochána Compensation (Amendment) Bill which this House passed to-day is good. Legislation is not good or bad because it is retrospective. So,ad hoc legislation may be either good or bad. It is good when it is for the benefit of the individual or council or with their consent, but it is thoroughly bad when it is introduced and passed by a Parliamentary majority in the teeth of the opposition of the parties concerned and in disregard of their rights under existing law. While Senator Sweetman has brought forward this amendment, to provoke discussion on this subject, I think that the better solution would be that which I have mentioned. If carried, Senator Sweetman's amendment would bring back the old trouble. I do not know whether the amendment would be effective or not, because the passing of a resolution by Limerick County Council does not appear to be a reserved function under the County Management Act, 1940. This amendment might require some revision to make that clear. After the heat and burden of the day, the Parliamentary Secretary and Limerick County Council should realise that there is an easy way out. The easy way out is for the Parliamentary Secretary to concede that he cannot get his full demand and for Limerick County Council to agree to accept less than they claim to be their rights.

I suggest that the amendment which has been proposed by Senator Sweetman would not get the parties anywhere and that the Parliamentary Secretary should at all events promise the House that he will consider this matter in conjunction with the Minister for Finance for the purpose of seeking an agreed solution. If, however, the Parliamentary Secretary should take what we shall call an intransigeant attitude, then I am sorry for him, I am sorry for the Limerick County Council, I am sorry for the Oireachtas with its Parliamentary majority which would impose such an injustice upon a county like Limerick, always ready to honour its commitments provided it gets fair play, and I am sorry for the country as a whole.

We have listened to two very able and, I think, extremely interesting and illuminating speeches on the amendment. If there was no other case to be made for the amendment than that it evoked these speeches, then, I think, it would have been justified. But it has also served the purpose, I think, of making it clear to the House, and I hope to the Parliamentary Secretary, that a good deal of the discussion which arose in connection with Section 58 on the last occasion was due to a misunderstanding. I did not fully realise the extent to which there was a misunderstanding between some of us who spoke and the Parliamentary Secretary, until I read the report of the last speech he made in the debate, and it became perfectly clear that he was under the impression that a number of members of this House wished to take the side specially and definitely of the Limerick County Council as against him, and that that was their sole interest in the matter. He accused them of endeavouring to obtain for one council an unfair advantage over the others. It may not have been easy to make it clear to him, but nothing of the kind was in our minds.

Senator Ryan has made one thing, I think, perfectly clear, and that is the sole matter with which I am personally concerned—that it will be bad for the whole future of legislation and will lessen respect for the Legislature and respect for the courts if Parliament intervenes with legislation which dealsad hoc with the case of an individual or a public body and which has the effect of reversing what was the decision of a court in his or its favour. I have heard again and again of individuals who have gone to Government Departments, and who have been told, no doubt in perfectly good faith, that the opinion of the officials there was that such-and-such was the law. I think you may safely say that the opinions of officials in a Department is far more likely to be right in nine cases out of ten than the opinions of anybody else, but it does happen from time to time that the view taken by the officials is really the view to which it was intended to give effect when the legislation was passed, but which as we all know is not necessarily the law. I have heard it said again and again that although you have first-class legal opinion that the official view is wrong, it would be utterly futile for you to go to the court because you would gain nothing, and you would take the risk of spending a good deal of money. If you win, it is said, you will only get your costs, and the decision may be upset afterwards by legislation. I have repeatedly said that is a fundamentally wrong view to take because I did not believe that any Government would adopt the practice of trying to upset decisions which had been given against it.

I am not very much interested in drainage as I have not got a first-class knowledge of the subject. Practically everybody in the House supported the Bill but the reason so much time was spent on this section recently was that we wanted to show the Parliamentary Secretary that the principle underlying this section is in our opinion definitely wrong. It is a principle that may be far more important in future than anything else in the Bill. For that reason I would urge the House to make it clear that we are not prepared to accept that principle. We do not want to take the side of Limerick in this dispute, but we would prefer that Limerick should gain a small advantage than that principle should be established in the Bill. Senator Ryan has made some very interesting suggestions. I am not competent to follow him fully and I certainly am not competent to say whether the lines he suggested on which there might be a compromise are good or wise. Instinctively I am entirely with him when he suggests that it would be very much better if an agreed section were introduced to amend the Bill. He points out that the principle against which we are contending would not be violated if there was such an agreement. I think, however, he is quite wrong in the lines which he proposed to adopt. He says—he may be right; he is a lawyer and I am not—that if Senator Sweetman's amendment were passed it would be virtually leaving the matter as it is and the Limerick County Council would be in a position to gain its whole point. That may be but I think the object of the amendment and the effect of the amendment would be to leave the question open. I would reply to Senator Ryan that if you reject this amendment you leave the Parliamentary Secretary with this whole Bill and, what is much more important, you leave no way by which that compromise which Senator Ryan suggests can be brought about. I think I am correct in saying that this being the Report Stage the matter cannot come before the House again unless we insert the amendment now. If we insert an amendment on the Report Stage the Parliamentary Secretary is not at all obliged to recommend the Dáil to pass that amendment and it would be open to him to suggest a different amendment which would come back to us. On the other hand, if we reject this amendment now, Section 58 stands and there will be no other opportunity for compromise, and the principle will have been introduced in the Bill, a principle which as Senator Ryan says was much worse than any question of retrospective legislation.

I am glad that Senator Ryan made a very clear distinction between different types of retrospective legislation. Just before he got up, I was saying to Senator Sweetman that the term "retrospective legislation" might be completely misleading. Retrospective legislation of itself is not something which is fundamentally evil, but what is wrong, and may be disastrous, is to create the feeling that if people go to the courts and get a decision in their favour Parliament will afterwards use its power to upset that decision. If that were to become the practice you would not have the least respect for the courts. An individual who in a matter in which the public interest is concerned, although he may have selfish motives, goes to the courts is not doing something anti-public. He is doing something in the public interest in seeking a decision on a matter in which it is desirable that the law should be made clear. If nobody were to bring a test case before the courts, we might go on for years before really knowing what the law on the matter was. I think action of that kind should be welcomed by a Government Department. I suppose you could not get a dozen lawyers to agree on the meaning of a particular Act until it has gone before the courts and they have certain precedents before them to enable them to interpret it. It is therefore desirable that these test cases should be brought.

The real point to my mind is that Parliament should not use its power by bringing forward retrospective legislation to upset what Senator Ryan describes as the right of the individual. That applies equally whether it is a public body, an individual or a group of persons that is concerned. I think the most practical solution, having regard to all the circumstances, particularly if Senator Ryan's eloquent appeal is going to be considered carefully by the Parliamentary Secretary, would be to pass the amendment proposed by Senator Sweetman. If it is rejected by the Dáil it may only mean a matter of a saving of time, but during that time an agreement may be arrived at on the lines suggested by Senator Ryan. I for one would very much hope that that may be so.

I had not an opportunity of seeing the pleadings before I spoke on the last occasion. I have seen them since. The fact of legislation being retrospective is not an evil in itself. This very day we passed a Gárda Síochána Bill which is not alone retrospective but which empowers decisions that have already been given to be reopened and dealt with in a different manner. Retrospective legislation, therefore, is not in itself an evil. What we have to consider in this case is whether we are depriving Limerick County Council of a right. Now it may be a right that it would be disastrous for then to avail of. Is it a right that they have? If it is, I think we ought not to deprive them of their right.

As I understand the position, the 1925 Act provided for a draft award that would be made when it was ascertained how much money was spent on this scheme, and how much improvement was made in the land. This award would not be made until the scheme was completed. The draft award was made before that date and a final award, based on the draft award, was made after that date. The Limerick County Council contended at the inquiry to consider the draft award that it was premature and that it should not have been made, and that they were not bound to go into the merits as to whether the amounts ascertained were right or not. Eventually, they withdrew from the inquiry but, notwithstanding that, the draft award was made absolute, and a second award was made in the year 1942.

Section 58 says that we do not hold the 1942 award was right, but that we are holding that all other final awards, if any, were correct. We are not saying this was correct but, apparently, it takes the figures, if I am right, from the award of 1942 and puts them into the Bill as the amount to be paid by the Limerick County Council. I do not know whether I am right or not in that, but I regard this matter as depending on the answer. If the amount mentioned in the draft award is wrong, then I have no objection as it stands, but if the figure of £13,000 mentioned——

It is the same, but what bearing has it on the Bill?

I think it has great bearing on it. Here then, instead of allowing Limerick County Council to go back to an inquiry and question the draft award and the figures in the draft award, we are precluding them from doing it. We are saying to them that they must take these figures whether they like them or not, and that is the objection I have to it. We are depriving them of a right that they otherwise would have. Senator Ryan seems to think that a very small figure would settle that matter. I think he mentioned a couple of thousand pounds. I wish to heavens it were settled for £2,000 or £3,000 and let the section go through as it is. If it is not settled, I think the Parliamentary Secretary ought to accept the amendment, and I do not think it will do much harm to accept it. Senator Sweetman wants Limerick to have the right to ask for an inquiry. They may not say, within a month, that they want an inquiry, because they may be under the impression that if they go back to an inquiry they will be saddled with more than is mentioned in the award of 1942 after this Bill because, I understand, more work has been done since then. The cost of that would be added to the sum in the award and, therefore, I think it would be a dangerous privilege for Limerick to avail themselves of the right to ask for an inquiry. Probably they will not avail themselves of it, but it will do away with their right to say that they are deprived of a right. It would be no harm, I argue, to accept this amendment and to say "we are putting down a certain figure, and we allow you the opportunity to question it." That is the way I look at it.

When I was listening to Senator M.J. Ryan for a while I was at a loss to know whether I was listening to Senator M.J. Ryan, a former Limerick man living outside the county, or Senator M.J. Ryan, the lawyer. During the course of the discussion on this matter during the Committee Stage, a request was made to me here for the pleadings and the judgment. That request was sprung upon me and I naturally could not fully see its implications. I took the course that was safest, of refusing, with the intention at the back of my mind that if I could do better than that, I should do it. But against the arguments that were advanced whether my line at the time was reasonable, I safeguarded myself fairly well, I think, in what I said to the members of the Seanad. There are only two or three lawyers here—the rest of us are lay people.

We are all lawyers now.

I said that after you have given those gentlemen the pleadings you will find when the time comes that you will get not an opinion, but opinions, and you will find yourself in the same position as you were of having to make up your own mind as to what you thought of the arguments. Senator Ryan and Senator Sweetman have, I suggest, avoided on this occasion the real issue that is here. Senator Sweetman has gone part of the way. He has admitted that the advice which I secured was right as to the interpretation of the judge's decision, which was that we could have proceeded to hold a draft award inquiry the following day, and that following that draft award inquiry we could have issued our final award. But neither Senator Ryan nor Senator Sweetman has told us what matters could be raised or what advantages could be secured by the holding of a draft award inquiry.

I should have liked to hear Senator O'Dea, or Senator Ryan, or Senator Sweetman, say what are the advantages to be derived from the holding of a draft award inquiry, in view of the judge's decision that not a penny piece could be spent on the works after the holding of that draft award inquiry until the making of the final award. I should have liked to have had, not Senator Ryan's pro-Limerick opinion, but his legal opinion, as to how the basis of those schemes under the 1925 Act—the basis of the three contracting parties, the State, giving a 50 per cent. contribution, the local authority, and the riparian owners the other 50 per cent.—could have been raised, and as to what further, if any, adjustments could have been made as a result of the holding of this draft award inquiry about which he is now so much enamoured. As I say, if we went out of our way to place at the disposal of those legal gentlemen facilities which in the normal way are not expected from us, we should then get from those gentlemen an opinion as to what they thought of those technical matters, rather than an hour's contribution telling us of the wisdom of compromise as between a State Department and a local authority.

Senator O'Dea has made a peculiar point, a point which I cannot understand, as to the significance of the figure of the final award which was upset being reproduced here in this section. If we could, as I contend, on the judgment about which we have heard so much, have held the following day a draft award inquiry, followed by a final award which would show exactly the same figure which was shown in the original, and which is now here in this section, why then should there be any objection to it, or in what way does it interfere with the principles which apparently Senator O'Dea is anxious to preserve?

On a point of order, what I fear is that the Parliamentary Secretary is begging the question.

An Leas-Chathaoirleach

That is not a point of order.

He is assuming that the inquiry will have no effect. I am assuming that the inquiry will have some effect.

I am making a case that the lawyers have not met. They have gone a certain distance with me. They have agreed that my interpretation, up to the point of the judge's decision, is correct. I have placed at their disposal facilities which would enable them to go further, and, to the extent that they have spoken here this evening, they have not gone further. I am entitled to complain, as a result of their failure, and I am entitled to draw the attention of the Seanad to the fact that when I was asked for those facilities during the Committee Stage I did say here that even if it were possible to make them available to you we would find that you would come back here and we would get one opinion from one of you and another opinion from another, and we would have to weigh off the argumentspro and con and make our own decision. I am not going to go into this matter again. I know that Senator Douglas and Senator Sweetman are trying to break the fall. I started them on the retreat during the course of our discussion on the Committee Stage. They did not like to go the whole way. They did not like to desert Senator Madden. Naturally, they wanted to stay with him as long as they could. I would do that myself. There is that feeling of loyalty for one's colleague. Even though you feel that he is on rather doubtful ground, you huddle around him as long as you can. Of course, to the extent that you can see any possibilities of securing for any modified course any little support from outside sources, naturally you play towards that additional support as best you can. I understand that attitude thoroughly and I can see it fully in operation here in this House. But I do want to say this, that there is no question of asking a parliamentary majority to do something wrong or unjust. What are parliamentary majorities for? What are governments for? Parliament can only do business on the basis of a Government securing a majority in the Houses of Parliament for the policy and the schemes that it formulates. If in the other House we have got a majority for the proposals which are contained in this particular section, then you may be satisfied that the House there, having heard the arguments for this section, having heard the entire case from beginning to end, was satisfied that the merit was on the side of those who stood for the inclusion of those proposals here.

I can only say again that this invitation which is now extended to me to compromise with Limerick makes no impression upon me whatever. If we are now to desert the whole legal basis of all the arguments that have been advanced, and if we are now to retreat to this negotiating position of trying to get some monetary advantage for the people of Limerick as a result of all this campaign, then I say in the most deliberate fashion that, no matter from what angle you examine this whole problem, Limerick is not entitled to any advantages of the type mentioned in the statement to which we have listened from Senator M. J. Ryan. I must persist in the attitude which I have taken up. I must persist in asking the Seanad here to ensure that Limerick will do as other counties have done. As I said on the previous occasion, Limerick has no more right to ask for relief than the counties of Cavan, Mayo, Leitrim, Sligo, or any of the other poor counties in which schemes have been carried out and in which costs have been incurred far in excess of the original estimate. I say that in asking me to compromise and to ask the Minister for Finance to throw a few thousand pounds to the ratepayers of Limerick you have retreated from the legal position. You have admitted that you have no leg to stand upon legally.

Coming down to the point that we would be better if the State and local authorities approached these matters with a different spirit, I agree with Senator Ryan when he says that litigation as between a local authority and the State is a most foolish business. That was what I said in the alleged lecture to the deputation. I said that it was too bad to have this litigation and that it was something with the sense of which I could never agree. I said that a local authority is a little parliament which has power to strike and to collect the rates just as the Parliament has the power to impose and collect taxes, that both do public work and that I could not see any sense in litigation between them. That litigation has taken place, I would say, unreasonably, and I am now asked to abandon all the legal arguments that have been hurled about in the other House and in this House during the discussions. The plea is made to me that we should blot out all this and get the Minister for Finance to write a cheque for £5,000 or £6,000 for Limerick Council, and then the whole thing would be settled. After the trouble to which we have gone in the matter of providing the legal facilities to which I referred, I did not expect that that was the kind of contribution that I was going to get. No matter whether it comes from legal gentlemen or from other members of this House, I must say it is not reasonable, and I must resist it.

It is really very difficult to know what to say or what argument to put to the Parliamentary Secretary, because apparently quite sincerely he does not seem to understand the point that is being made. One of the things he said is that the Dáil has decided this thing on its merits. The Parliamentary Secretary ignores the fact that some of us know the Dáil well and know what Parliamentary majorities mean, but if the Parliamentary Secretary is using the English language and using words in their ordinary meaning, what he says is that the Dáil has heard his arguments and decided this question on its merits. Apparently we are standing behind Senator Madden because of some connection we have with him.

That is manifestly foolish. Surely the Parliamentary Secretary should examine his conscience, and if I may say so without offence, his predominantly Party conscience, and ask himself, if this point has united Senator Sweetman, Senator Ryan, Senator Douglas and Senator L. O'Dea must there not be something in it, something besides mere partisanship? Surely Senator O'Dea is not standing with Senator Madden for the same reason as Senator Ryan and Senator Sweetman?

Surely the Parliamentary Secretary has some advertence to the position of this House. We are not concerned, as Senator Sweetman and Senator Ryan made clear, with the merits of this drainage scheme. Quite frankly I do not know anything about it. I am not prepared to agree with all even Senator Madden says. Neither am I prepared to adopt the Parliamentary Secretary's point of view which is put into Section 58 with extreme care and detail. What the Parliamentary Secretary is doing is saying to Limerick County Council: "You have the right to go and secure a judgment but I am having that right taken from you; I am going to keep you from exercising that right." On that there can be no doubt whatever. The case made in court against the board was that it had ignored its own procedure. A great many points about the merits were raised but the net point before the court and the point which the judge decided on was that the procedure under the 1925 Act had not been followed. That was a victory for Limerick County Council. The County Council may be, as the Parliamentary Secretary thinks, very foolish to go to law. Certainly people very frequently go to law and nobody knows better than Senator Ryan that they are very foolish to go to law and incur costs. We are working a system which makes a very clear distinction between the functions of Parliament and of the courts. We pass the law or take it over as we did in 1922 from the British, but this is the case of an Irish Act. The judges decide what is meant. When they have so decided, a successful litigant has acquired a right and no Parliamentary majority has any title to take that right from him.

As Senator Ryan says, Parliament can do it, but if they proceed to do it and if they make a practice of doing it then you have brought Parliamentary government into disrepute. That is the point at issue, and that is the point I want to try to explain to the Parliamentary Secretary. When he says that what he is doing is the best for Limerick County Council, that has nothing to do with the case. If he proceeded to prove that what he was going to do was the best for Michael Hayes and for Michael Hayes's children, he might think he was right, but we are not asking for a position in which we would be governed for our own good by the Commissioners of Public Works or by the Parliamentary Secretary. That is the old argument that good British rule was better than bad Irish rule. A great many of us thought, and a good many of us still think, that any Irish rule is better than British rule, and in the same way we think that our legal rights are very important. The position here is that the judge found that the commissioners had not followed the procedure laid down under the Act of 1925, and, having found that, gave the county council the right to an inquiry. It is quite possible that the county council would be foolish to pursue their rights, but what is being done in this section is that very elaborate steps are taken to see that whatever rights the county council have they can no longer have them when this Bill becomes an Act. Figures are put in very carefully to ensure that what the commissioners want will be done, and that these matters will no longer be justiciable as between the county council and the commissioners, that no judge can intervene. That is injustice and malpractice, something that the Parliamentary Secretary ought not to do. I know that Parliament can do it, but I would like to put it to the Parliamentary Secretary that it is a very remarkable thing that Senator Ryan and Senator O'Dea, who cannot be accused of being political enemies of his, did not think that Parliament ought to do it.

I am not interested in this because the Parliamentary Secretary belongs to a political party. I am interested in the question of principle involved on which I think it would be better for the State to sacrifice some money rather than violate this particular principle. Senator Ryan said that we could compromise. I agree that it would be better for the county council, the commissioners and the Parliamentary Secretary to come to an agreement, but I will go a step further. It is not because I want to benefit the County Council of Limerick as distinct from the Council of Leitrim.

I say that because I think that when the Government lost a case in the courts they should not have used a Parliamentary majority in order to win their case in this or the other House. Having lost their case in the courts, I hold that they should not come here, either to the Dáil or the Seanad, in order to win their case by overriding the decision of the court. I am not saying this because I want to benefit Limerick at all, or because I think that they should be paid something to which, perhaps, they are not entitled— I do not care what they would be entitled to—but I do suggest to the Parliamentary Secretary and to the Government that, from the point of view of the taxpayers, the ordinary voters of this State, and of the State itself, it would be better that some money should be lost by the Department of Finance rather than that there should be an accusation—apparently, justly founded—that there is an effort on the part of the Minister for Finance to deprive a litigant of his ordinary rights under the law. Even if the award given to the litigant might not appear to be quite right, still he should be allowed to pursue his claim under the law.

The Parliamentary Secretary's point: that he is doing the best he can so far as Limerick County Council is concerned, is, in my opinion, atrociously irrelevant and wrong, since it has nothing to do with the particular principle involved here. The Parliamentary Secretary may be the best god-father who ever walked into Stephen's Green to take charge of the activities of the Board of Works, but if Limerick County Council do not think that he is the best god-father who ever had charge of these schemes, and if they have gone into court and got a decision, I think they should be entitled to reap the benefit of that decision. In this connection, I may say that I am glad that Senator Ryan said that retrospective legislation, in itself, is not bad. For instance, we have had a case to-day in this House in regard to the Gárda Síochána Bill, where it would appear that certain powers that had been taken originally were not as wide as they had been thought by the Government and others, and that the Act might be amended in that respect, and, accordingly, it was amended.

According to that amendment, no person who was given an award under the 1934 Act can be damnified, and the award cannot be reduced. This, however, is a different matter. This particular section of this Bill—Section 58—takes away certain rights and I think that Senator Ryan was right when he referred to this type of legislation as legislationad hoc: legislation which deals with a particular case and which, as he says, takes up, in effect, a big Parliamentary stick and says: “You must adopt this position, no matter what your legal rights may be.” The principle we want to advocate is that once the Limerick County Council started legislation under the 1925 Act they should have been allowed to carry it on, and that, no matter what general legislation the Parliamentary Secretary may bring in, the particular litigant concerned should be allowed to get his whack, whatever it might be. Now, the Government and, particularly, the Parliamentary Secretary, in this case are bringing in a new legislative principle. It has been said that Senator Sweetman avoided this particular amendment and did not attempt to explain it, but I think that the amendment in itself is quite clear. It was put down, in the first place, explicitly, for the purpose of making this particular point clear as to the judgment of the court, and also for the purpose of avoiding, if at all possible, a renewal of the discussion as to the merits of the scheme and the dispute between the engineers of the Limerick County Council and the engineers of the Office of Public Works.

This amendment is put down with a view to leaving the engineers of the Limerick County Council in the same position that they had when leaving the court, and also leaving the same rights to the Parliamentary Secretary and the Commissioners of Public Works. If this amendment were put into the Bill, I suggest that several things might happen. First and foremost, if the Parliamentary Secretary were to accept the principle of the amendment now, he could recommend it to the Dáil and leave it to the county council to decide for themselves whether to go over this or not. There is only something over a month to go in regard to this matter, and if the county council did nothing the Parliamentary Secretary could get all he wants under Section 58.

If, on the other hand, they decided to move, then they would be within their rights. Now, I am not concerned so much with their actions I am only concerned with the principle that is involved here, and I suggest that the Parliamentary Secretary should adopt Senator Ryan's suggestion. This is an amendment which is concerned with a dispute between the Commissioners of Public Works and the Limerick County Council, and I think I am right in saying that the Parliamentary Secretary could move in the Dáil to have this or a similar amendment inserted in the Bill, which might settle this dispute. I think that that is all Senator Ryan wants. It is not a question of anybody wanting to score a victory over the Parliamentary Secretary, or of wanting to give the Limerick County Council more money than they are entitled to. That is not what is at issue at all. The Parliamentary Secretary may not know us.

I know the Senator a long time.

Well, then, the knowledge is mutual. I have seen the Parliamentary Secretary progress from being a rather wild man into being a rather good Parliamentary speaker. I admit that he has made considerable progress, and I have endeavoured to bring him along that path and teach him a little more. I should like to point out to him, however, that he would find that, in spite of the fantastic method of election to this House, which was devised by his Party, it is still true that we, in this House, generally have taken a different outlook on various matters from that of the Dáil, and that we discuss these matters from a different point of view. I think it can be said, that in this House we discuss matters from a more impartial point of view, and that is what we are endeavouring to do now. The Parliamentary Secretary has had an opportunity of hearing people discussing these matters in this House—people who could not be accused, even by the most partisan type of persons, of discussing these things from a Party point of view. In that connection I may say that, unlike Senator Ryan, I have no particular concern with the affairs of Limerick County Council. I am not even a Limerick man at all—which seems to be a very bad thing from the Parliamentary Secretary's point of view—and I agree with the Parliamentary Secretary that it would have been better if we had not had any legislation or trouble about this matter.

That, however, does not mean that we should deprive people of the rights that they have been given under a particular Act and as a result of a particular judgment given in the courts. For that reason, I think that the Parliamentary Secretary should accept this amendment, so as to get this matter settled definitely, without leaving Limerick County Council to believe that they have been deprived of certain legal rights and that the big stick of a Parliamentary majority has been used against them, and, still more important, without leaving people like Senators Sweetman, Douglas, Ryan and O'Dea under the impression that, from the purely legal or constitutional point of view, a very bad principle has been inserted in our legislation.

I think that the Parliamentary Secretary would be very well advised to adopt a different line. When I suggested on the Committee Stage of this Bill, on the last occasion we met, that this matter should be narrowed down, I was particularly concerned that the matter should be discussed, as we have had it discussed to-day, on a particular constitutional basis, but I merely want to point out to the Parliamentary Secretary that he could easily adopt the principle of this amendment and that, within a certain time, until the 31st March, which is only about six weeks from now, the whole matter could be settled satisfactorily; so that there would not be a blot upon our legislation. I say that because I agree with Senator Ryan that it is a blot upon a good Bill—a blot which could be easily removed—and that if that blot upon our legislation were removed, a bone of contention, which concerns State and constitutional matters, and not partisan matters, would be satisfactorily settled.

There is just one point to which I should like to make reference. I am afraid that the question of affording relief is a bit overstated. Limerick County Council has been represented as a kind of mendicant looking for relief. There is a more serious aspect of the matter than that. If this Bill passes in its entirety, we shall get a scheme which, in one respect, will be defective. Hundreds of acres have been under water for the past three months, as I was informed last Saturday. I have unmistakable evidence here that, at Dromalta, 46 acres have been under water for two months. Land that was never known before to be subject to continuous flooding has been under water since a scheme on which £37,000 was spent was carried out.

The Parliamentary Secretary, in reply to Senator Ryan, said that after the judgment of Mr. Justice Overend, they could, on the following morning, have held an inquiry for a draft award. That is the very thing that Limerick County Council wants—to have a proper inquiry. At that inquiry, and at no other place, can Limerick County Council question the unreasonable over-expenditure and point out the very serious defect in the scheme. If this Bill passes in its entirety, an inspector from the Board of Works can visit Mulkear and Cappamore and, having satisfied himself, send a demand to the county council stating that, because of neglect by that council, a sum of £3,000 must be expended by the council to make good certain defects in the scheme. The defects are there now, as I showed the last day.

Here is a map by a very eminent engineer who has never been employed by the county council but who has been employed by the present Government in another capacity. Here are his map and certificate showing the condition of a certain drain called the Eyon, which is responsible for keeping in productivity 1,300 acres. Here is his map, which is confirmed by maps and levels taken by the county surveyor and assistant county surveyors and confirmed by a consultant engineer who held a very honourable and distinguished position in Dublin under the old and present Government. At the inquiry, we could point out to the Board of Works that they were asking Limerick County Council not only to pay £12,000 a year for 35 years but to take over a defective scheme and maintain it. What will be the outcome if this legislation is superimposed upon us? What will be the answer of farmers in that area of 1,300 acres whose land has been under water for two months? My authority for that is the former chairman of the county council. Cattle driven out two months ago could not go back. These farmers can bring the county council into the courts and get continuing judgment against them because of this defective scheme handed over by the Board of Works.

Mr. P. O'Reilly

I am beginning to think that Cappamore and Mulkear rivers must be very long—longer than the River Shannon, which rises in County Cavan and goes down, ultimately, to County Limerick, and longer than the Erne in which Senator Baxter and I were interested. I think that we are being confused in this matter. I have no doubt that, when the final award was set aside in the courts, the Board of Works could have proceeded to have an inquiry and establish another final award. But that would be far more costly on Limerick County Council. It might, however, afford certain scope for their lawyers and engineers. They seem to have a monopoly of legal advice in this House. When Senator Baxter and I were trying to hammer out an improvement in regard to a much more important matter than the Cappamore and Mulkear scheme, we got no legal assistance whatever. With regard to the final award, I am satisfied that the Board of Works could have proceeded as I suggest. But who initiated this scheme? I suggest that it was Limerick County Council. Prior to the scheme being carried out, these drainage works were being maintained by a drainage board or trustees. Because of the failure of that body to maintain the scheme, those people were anxious to get the Board of Works to carry out reconstruction. The Board of Works might not have regarded it as a very economic scheme. The economic value of the scheme had to be examined under the 1925 Act and the Minister for Finance sanctioned it. If it turned out much more costly than expected, surely everybody with commonsense will agree that engineers, when they prepare an estimate of a drainage scheme, can be very wide of the mark. I think that it was for that reason the Parliamentary Secretary did not include the estimated cost of the schemes in this Bill. I voted for the amendment proposed by Senator Baxter to have that principle established in the measure, but I agree that it is very hard to estimate what a drainage scheme will cost. The value of lands improved will never equal the cost of the scheme. With regard to this question of retrospective legislation, about which we have heard so much, I may not exactly understand what it means but, surely, when that scheme was carried out, the people who benefited by it should pay something. Even though it turned out more costly than anticipated, they should pay their share of the cost because the other portion has been borne by the taxpayer. For that reason, they should not ask for remission of some of the cost, particularly in a county like Limerick, where 1d. in the £ would, I suppose, produce £1,000——

A Senator


Mr. O'Reilly

In Leitrim, 1d. in the £ would bring in only about £400 and we have to maintain the drainage works there. If there is a principle of retrospective legislation in this section I see no reason for arguing, when it is in the public interest or the common good, that legislation should not be retrospective. It has been pointed out that retrospective legislation, such as we had here earlier to-day, in so far as it affected compensation for the Gárdaí, was wise and good. I would also suggest that if there is an element of retrospective legislation in this section, it is intended to give even-handed justice to the Limerick County Council having regard to their commitments in the matter as well as to safeguard the interests of people in other counties who have been compelled to contribute through taxation and by county-at-large charges to drainage generally. I cannot understand why there has been such a long debate on this section because, in my opinion, it is not nearly so important as the section dealing with drainage areas which are partly inside and partly outside the State.

I have a very distinct sympathy with Senator O'Reilly, on the one hand, in considering that Leitrim is more important than any other county and, on the other hand, with Senator Madden, who thinks that the merits of his belief are all-important. I would suggest to both Senators and to the House in general that in actual fact their sympathies and the case they put forward had nothing whatever to do with the amendment on the Order Paper. The Parliamentary Secretary, I am afraid—no doubt the fault was mine, both to-day and on the previous occasion on which I put it before him— completely missed the point of the principle behind this amendment. He rode off on the plea that we ought to have had more appreciation of the fact that he had placed certain information at our disposal by putting the pleadings in the Library. I acknowledge the fact that he did make the pleadings available to us but I acknowledge it as an act of courtesy in that he fulfilled a duty which he owed to the House. The House must demand it as a right that we all get information in the possession of any Government Department to enable us to come to a decision on any matter before the House. The Parliamentary Secretary should not try to get away on that angle.

The question before the House is perfectly clear. It is whether the House is going to stand for the rights of the individual as against the Executive or whether the House is going to tip the balance as against the individual and in favour of the Executive. The position is that after the decision of Judge Overend, Limerick County Council walked out of court with a judgment in their pockets which enabled them next morning to have an inquiry set up if they wished, and it is not for this House or for the Parliamentary Secretary to decide what would be the result of that inquiry. The Limerick County Council, as we heard from Senator Madden, maintained in good faith that the result of the inquiry would show that the additions made to the scheme and the manner in which the scheme was carried out were not reasonable and that in consequence the cost of these matters should not be included in the final award. I do not know whether the County Council is right or wrong in that respect. I am certainly not going to say that the Commissioners of Public Works did not understand their functions without having a good deal more evidence before me; equally I am not going to take up the position that the other party to the litigation was wrong and that the belief they held was not abona fide belief or a belief that they should not be allowed to uphold. All I am asking is that Limerick County Council should be put in the position that if they wanted to go on as they left the court, they should have the right to do so. If Limerick County Council decided, as Senator O'Dea put it, that the rights they had when they left the court were dangerous rights but that they were going on with them, then that is Limerick's funeral. I want it clearly established that they have got that option to decide. If Parliament should deprive them of that right now, I say that in future in any case of an individual versus a Government Department, there will be a complete and absolute precedent for weighting the scales against the individual. In consequence no individual can ever hold up his head against a Government Department, and we shall have, not legislation by the Oireachtas, but legislation by the interpretation of each and every Government Department. At any time that would be dangerous; at any time that would mean that the powers, duties and responsibilities of the Oireachtas would be brought into jeopardy, and might be brought into disrepute as well as the powers and functions of the courts.

But particularly the present moment, when we have the most stringent and overwhelming power placed in the hands of the Executive under the Emergency Powers legislation, is the one time that we should above all determine and provide that the individual will be safeguarded as against the Executive. If you pass this amendment it is up to the Parliamentary Secretary to go to the other House, and if he does not like the wording of it to suggest some other form of words by which the principle which we wish to see preserved will be safeguarded. I am interested in the principle only. It is up to him to do it. If you reject this amendment you have enshrined in the Arterial Drainage Bill a vicious principle that will one day recoil on our heads. One day we will be in the position of being able to say that we started the ball rolling, that we set out to help the Executive to override the individual and to destroy the rights he was given by the Constitution. That, and that alone, is the issue. That, and that alone, is the proposal upon which you are going to be asked to make up your minds—not on whether the Parliamentary Secretary is right about the merits of the scheme, or whether Limerick matters more than Cavan, or whether Meath matters more than Mayo. It is a question of protecting the rights of the individual against the inroads of a Government Department, and everyone must face that problem. Everyone knows that individual rights are going more and more day by day, and if you pass that section you have completely put "paid" to the account of anyone who ever wants to challenge whether or not a Government Department is right in a particular line of country.

Question put:
The Seanad divided: Tá, 18: Níl, 26.

  • Barniville, Henry L.
  • Baxter, Patrick F.
  • Butler, John.
  • Camphell, Seán P.
  • Counihan, John J.
  • Croshie, James.
  • Douglas, James G.
  • Fearon, William R.
  • Hayes, Michael.
  • Johnston, Joseph.
  • Keane, Sir John.
  • Kyle, Sam.
  • McGee, James T.
  • Madden, David J.
  • O'Reilly, Patrick John.
  • Parkinson, James J.
  • Ryan, Michael J.
  • Sweetman, Gerard.


  • Clarkin, Andrew S.
  • Concannon, Helena.
  • Corkery, Daniel.
  • Crowley, Tading.
  • Farnan, Robert P.
  • Healy, Denis D.
  • Hearne, Michael.
  • Lynch, Peter T.
  • McCabe, Dominick.
  • McEllin, John E.
  • Magennis, William.
  • O Buachalla, Liam.
  • O'Donovan, Seán.
  • Hogan, Daniel.
  • Honan, Thomas V.
  • Johnston, Séamus.
  • Keane, John Thomas.
  • Kehoe, Patrick.
  • Kelly, Peter T.
  • Kennedy, Margaret L.
  • O'Reilly, Patrick.
  • Nic Phiarais, Maighréad M.
  • Quirke, William.
  • Ruane, Thomas.
  • Stafford, Matthew.
  • Tunney, James.
Tellers:—Tá: Senators Crosbie and Sweetman; Níl: Senators Hearne and S. O'Donovan.
Amendment declared lost.
Question —"That the Bill, as amended, be received for final consideration"—put and agreed to.


When will the next stage be taken?


I hoped to get it now.

Leave it until to-morrow.

We can have it after the tea adjournment, if you wish.

No. If you do not give it to me now, wait until to-morrow.

Business suspended at 6.25 p.m. and resumed at 7.30 p.m.