Seanad Éireann debate -
Friday, 27 Jul 1945

Vol. 30 No. 8

Local Authorities (Acceptance of Gifts) Bill, 1945.—Committee and Final Stages.

SECTION 1.

Mr. Duffy

I move amendment No. 1:—

In page 2, line 18, to delete the word "class" and substitute the word "section".

Section 2 of this Bill provides that a local authority may adopt schemes for certain purposes set out in the Bill. It goes on to speak of schemes for civic improvement. When we refer to Section 1, we find that the expression "civic improvement" includes "anything which tends to improve the amenities of the functional area of the local authority concerned or is otherwise conducive to the welfare of the inhabitants or any class of the inhabitants of that functional area". This word "class" has arisen in connection with other legislation and has, I think, been the subject matter of an action in the courts quite recently. Those with whom I discussed the expression, including some lawyers, say that the word "class" presents tremendous difficulties and that it is an exceptionally unsuitable word to use in legislation of this kind. One wonders what is meant by "any class of the inhabitants". Does the phrase mean the working class, the employing class, the farming class, or what does it mean? If the word "section" were substituted for the word "class", it would be far more satisfactory and the purpose of my amendment is to insert the word "section" in substitution for the word "class".

Parliamentary Secretary to the Minister for Local Government and Public Health (Mr. Childers)

When this Bill was drafted, there was no special intention in regard to the use of the word "class". The word "class" has an entirely general meaning. The amendment substituting the word "section" for "class", I do not think, would get us very much further, because, so far as I can gather, the word "section" means in general a division or a portion or an act of cutting. I think the word "class" in the section will have to be defined by usage. It is obviously intended to mean people of every group or vocational order in the community. I do not think that the section would be improved by the substitution of one word for the other. I cannot accept the amendment.

Mr. Duffy

My view is that no defence of the use of the word "class" has been made. The Parliamentary Secretary is absolutely at sea as to what is meant to be covered and the argument against the use of the word "section" which, in my opinion, is a better word, is simply to say: "This is the draftsman's Bill and we are standing on it, rightly or wrongly." I think that is not a very satisfactory attitude. In my opinion, the Parliamentary Secretary might have consulted with his advisers as to whether there is not a difficulty about the word "class". I am informed by lawyers that there is.

Mr. Childers

I quite understand Senator Duffy's viewpoint with regard to this matter, but the whole of this Bill is of a very tentative, experimental character and it can only be interpreted by experience. The purpose of Section 1 is to define the reasons for putting the Bill itself into operation, that is to enable local authorities to acquire gifts, property or money, for purposes which will not result in a saving of the rates but will be in the form of genuine civic improvements. Civic improvements are meant to affect every group and class in the community. The word "class" is used in the most wide, general sense. I hope it will never become subject to litigation. If it did, I think there would be many other sections in the Bill which could be questioned in the same way, because the Bill is tentative and experimental. I cannot believe the substitution of one word for the other will in any way improve the Bill or enable it to do what it sets out to do in a more efficient manner.

An Cathaoirleach

Is the amendment being pressed?

Mr. Duffy

It is.

Amendment put and declared negatived, Senator Duffy being recorded as dissenting.

Mr. Duffy

I move amendment No. 2:—

In page 2, before line 28, to insert the following new paragraph:—

(f) a joint board or committee established by or under a statute to execute functions belonging to two or more of the following bodies, that is to say, councils of counties, corporations of county or other boroughs, councils of urban districts.

The expression "local authority" is given, in this Bill, a rather restricted meaning. I do not know why, because the expression has been defined in a number of recent Acts of the Legislature. It has been defined in the County Management Act, in the Public Assistance Act, and various Acts passed in the last five or six years. Why it is given the restricted meaning it has here in Section 1 is a bit baffling.

I am endeavouring to extend the definition so as to include a joint board or committee established by or under a statute to execute functions belonging to two or more of certain bodies. I have in mind a board controlling a mental hospital. That would enable the joint board, let us say, of Portrane and Grangegorman Mental Hospital Committee, to draft the scheme envisaged here for the purpose of accepting gifts, if gifts were offered, as they might very well be offered to a body of that kind. There are a number of people who might consider that the giving of a gift for the purpose of improving the amenities of a mental hospital, and particularly for research work in connection with mental diseases, might very well be what is envisaged here. I am endeavouring to bring that board within the definition of a local authority which will, when this Bill becomes law, be entitled to formulate a scheme.

Mr. Sweetman

Perhaps the Parliamentary Secretary will tell us why a mental hospital was specifically excluded from the definition? It might save the time of the House.

Mr. Ryan

I think it is quite obvious why it was excluded. A mental hospital caters only for the inmates of that mental hospital and not for the inhabitants of the surrounding district.

Mr. Duffy

Surely that is not correct in regard to research?

Mr. Ryan

The Bill is concerned with civic improvement and I say that a local authority, within the strict meaning of the words, is concerned with its functional area, as defined in the Act. I think that a mental hospital may be controlled by the county council if that mental hospital caters only for the county in which it is situated. It may be controlled by a joint board set up by adjoining county councils. I think this amendment is totally outside the scope of the Act, which is to improve the amenities of the functional area of the local authority concerned, or conduces to the welfare of the inhabitants or any class of the inhabitants of that functional area.

The Senator's amendment, if carried to its logical conclusion, would mean that the joint board of a mental hospital should draw up a scheme for improving the amenities and the grounds of the mental hospital in a manner conducive to the welfare of the inmates or a class of inmates of the institution. I think the amendment is totally outside the scope of this Bill and I think it should be rejected.

Mr. Duffy

In the definition of the Bill there is included a vocational education committee and it seems to me that any argument used for the exclusion of a joint board would equally apply to a vocational education committee.

Mr. Ryan

You could have a joint burial board.

Mr. Seán O'Donovan

Or a fever hospital.

Mr. Duffy

That is a complete misrepresentation of what has been suggested. What I am endeavouring to suggest is that a joint board, having certain functions, be authorised to prepare a scheme. There is no proposal to ask anybody to make them a gift. There is no proposal as to how the gift, if it is made, should be used. The proposal is that if a joint board established under a statute to execute functions belonging to two or more named bodies is being offered a gift, it should be empowered to prepare a scheme to enable it to accept the gift. I think there is nothing illogical in that proposal and I suggest it is not outside the scope of this Bill. It is at least as commendable as the proposal to include in the definition a vocational education committee or a committee of agriculture. However, I am prepared to hear the Parliamentary Secretary on the point, because I do not accept the view of Senator Ryan that his objection is the right one.

Mr. Childers

Perhaps the best way in which I can deal with amendments Nos. 2 and 3, and in particular with amendment No. 2, is to point out that this Bill, which was sponsored primarily by Mr. George Bernard Shaw, for the purpose of enabling the gift which he made to Carlow Urban Council to be adopted in a legal manner, is, as I have already said, very definitely experimental in character. Senators will note Section 1:

"Civic improvement includes anything which tends to improve the amenities of the functional area of the local authority concerned or is otherwise conducive to the welfare of the inhabitants or any class of the inhabitants of that functional area."

It has not been found possible to go any further in regard to defining the improvement of an area over and above what could reasonably be done through a levy of rates. It has not been found possible to phrase that clause in such a way as would make it impossible for a county council beyond all doubt to do anything which might possibly be done through the spending of the local rate. When this Bill has passed, there will be an experimental period during which we hope that, if county councils adopt the scheme, they will do so because of what has been said in connection with the Second Reading of the Bill. There is no exact legal interpretation of that clause and there is really no point in trying to complicate the Bill further by adding to the number of authorities, or by doing anything beyond leaving it in as general a form as possible. We are very anxious that the Bill should pass into law as soon as possible.

Mr. Sweetman

That is the real reason.

Mr. Childers

I am being perfectly frank about it. Mr. Shaw was 89 yesterday and he is most anxious that this scheme, which is of his own designing, should pass into law as soon as possible. I would not deny that amendments may become necessary. If the custom should grow up of making bequests to local authorities, it is almost certain that some donor, sooner or later, will encroach on the fields of activity in which it might be said that a civic improvement scheme was doing something which the rates could genuinely do. The no-man's-land between what is really an innovation, an unusual improvement or unusual change in the amenities of a a local area and improvements which definitely should be defrayed from the rates is very large, and we want to keep this Bill as simple as possible. If Senators are willing to accept that explanation I should appreciate it, as that is the real reason why I do not like to complicate the Bill with any further additions.

Mr. Duffy

I do not want to be accused of holding up a measure which would enable a local authority in Ireland to accept a gift from Mr. George Bernard Shaw. He is probably one of the most notable Irishmen of the day, and I hope that some of my friends on the other side will appreciate that probably the greatest monument to his life is the result of the elections announced yesterday in Great Britain, because Mr. George Bernard Shaw did more over a period of 50 years to bring about that result than any man, British or Irish, has ever done or attempted to do. The Parliamentary Secretary, however, does me an injustice, because I am not trying to complicate the Bill. I am endeavouring, as he will see, to enable a joint board set up by two of the bodies named in Section 1 of the Bill to do what either of these bodies might do. I do not see how that complicates the Bill in any way, with this exception, of course, that if we amend the Bill, no matter how desirable it may be to make the amendment, there will be delay because it will mean submitting the Bill, as amended, to the Dáil for approval. If the Parliamentary Secretary assures me that that is the only solid ground for objecting to the acceptance of this amendment, I do not intend to press it.

Mr. Hearne

I can see a difficulty if Senator Duffy's amendment were accepted. I can see a committee being established consisting of members of two local authorities and, according to the amendment, they could accept a gift, but there would be considerable difficulty as to how the cost of maintaining that gift should be apportioned as between the two counties.

Mr. O'Dea

On the number of patients.

Mr. Hearne

No; I am speaking of the gift of a house similar to Johnstown Castle.

Mr. Childers

I should like to satisfy Senator Duffy so far as I can in this matter. There are one or two objections, apart from those already given. First, some of the joint boards mentioned by him, namely, councils of counties, corporations of county or other boroughs and councils of urban districts have tended in the past to be, on the whole, permissive and rather temporary bodies, and because, among other reasons, they have been rather temporary in character, it was felt unwise to include them. For the purpose of administering a Bill of this kind, it was felt that they should not be included.

When we come to the question of mental treatment, this no man's land between what can be done which would not ordinarily be done by the rates and what might be done by the rates is particularly difficult to define, because, under the new Mental Treatment Act, it is possible to have quite elaborate research schemes for mental treatment, and, so far as I know, there is nothing in the Bill which would prevent a number of local authorities from contributing jointly to mental research. If it came to a question of having an especially beautiful ornamental garden surrounding a mental hospital, there is the matter of the no man's land which would be very hard to define. It sounds very simple, but a very minute increase in the rate could produce a very beautiful ornamental garden, and it was felt, particularly in the case of mental hospitals, that the area of no man's land in respect of the Bill would be particularly hard to delimit. These are the chief reasons why we have not included these joint authorities or mental hospital authorities—because of the work which can be done by joint hospital boards in regard to such things as research—and equally the fact that some of these joint committees have tended in the past to be temporary bodies.

Mr. Sweetman

As in the case of another Bill, I am trying to understand the other person's point of view. I cannot get this from the Parliamentary Secretary: Suppose a man gave a gift which would have the effect of reducing the rates, what is the objection to it, from the point of view of this no man's land which the Parliamentary Secretary mentions? Surely there is no objection whatever to it and surely there is equally no objection so far as a mental hospital is concerned?

I can conceive, in respect of a mental hospital particularly, a person being very anxious, because of some kindness to a member of his family or something like that, to do something to commemorate the memory of that person by making such a gift. Supposing a person wanted to give a sum of £1,000 to a mental hospital committee or the interest from it for a year or two to provide additional benefits for the inmates of that hospital at Christmas time, where would be the objection to accepting a gift of that sort? I cannot appreciate the Parliamentary Secretary's point of view.

Mr. Duffy

We might take this point into consideration. There is a street in Dublin called Shaw Street. I do not know whether George Bernard Shaw owns this street or not, but assuming he does, and assuming he desired in the next few days in recognition of the introduction of this Bill to bequeath that street to the Committee of Management of Grangegorman Mental Hospital, is it not a fact that as the law stands that committee must refuse the gift? If the proposal is that they should be enabled to accept it, it means that the Parliamentary Secretary must come back with a new Bill to enable the joint committee to accept this gift from George Bernard Shaw. I do not see any reason why a body of that kind should be precluded from accepting a gift. It is notorious that they are precluded because if any local authority were entitled to accept a gift of the kind mentioned, there would be no need for this Bill. The Bill is introduced to enable certain named local authorities to accept gifts and decides that no other body except those named in the Bill shall be entitled to accept such gifts.

Mr. Ryan

I am afraid that both Senator Sweetman and Senator Duffy have misconceived the object of this Bill. This is a Bill for the purpose of enabling local authorities to accept gifts for civic improvement. A gift to a mental hospital is not a gift for civic improvement.

Mr. Sweetman

Is it not conducive to the welfare of the inhabitants?

Mr. Ryan

I certainly say that a gift to Grangegorman Mental Hospital Committee does not improve the amenities of the Dublin City functional area.

Mr. Duffy

I respectfully suggest that a gift to the joint committee of a mental hospital is conducive to the welfare of the inhabitants of the hospital.

Mr. Ryan

The object of the Bill is to enable local authorities to accept gifts for civic improvements. I say that a mental hospital is in the same position as any other kind of hospital. I think a gift to Cork Street Hospital, for instance, would not be a gift conducive to the welfare of the inhabitants of Dublin, because the inhabitants of Dublin would not get any benefits from it.

Mr. Duffy

It would be for the benefit of a certain class of inhabitants.

Mr. Ryan

I certainly say that the word "civic" must be read in conjunction with the word "improvement", that is to say, it must refer to a city or town or some area like that. A public place means a place where the public reside, not merely an institution where a limited number of people are confined or are resident.

Mr. Duffy

How does that fit in in the case of a vocational education committee?

Mr. Ryan

A vocational education committee has a functional area, a county or a city.

Mr. Sweetman

A mental hospital is for a county or a pair of counties.

Mr. Duffy

Actually if the mental hospital is under the control of a county council, it comes within the meaning of this Bill but if the mental hospital is controlled by a joint board covering two or more counties or a city and one or more counties it is outside it.

Mr. Hearne

That is not so.

Mr. Sweetman

Why?

Mr. Hearne

It is governed by the expression "local authority".

Mr. Sweetman

What is the council of a county?

Mr. Hearne

It is not a mental hospital committee.

Mr. Duffy

But the mental hospital committee comes within their jurisdiction and they can, if they think fit, include in the scheme certain things relating to the hospital, its grounds or anything concerned with its administration.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Section 1 agreed to.

SECTION 2.

Mr. Duffy

I move amendment No. 4:—

In sub-section (1), lines 42-43, to delete the words "a particular class or particular classes" and substitute the words "or a particular description".

Again I am endeavouring in this amendment to get clarity. The proposal here is that the schemes which are authorised may be in respect to civic improvements generally—"a particular class or particular classes of civic improvements or one particular civic improvement". I suggest that the sub-section as it stands is meaningless and I am endeavouring to make an alteration in the wording by substituting the words "or a particular description" for the words "a particular class or particular classes". That is to say, the section would read:—

"A local authority may from time to time adopt schemes for the acceptance holding and administration of gifts of real or personal property for civic improvements and any such scheme may be in respect of civic improvements generally or a particular description of civic improvements or one particular civic improvement".

I submit that that is a better phraseology than the phraseology of the section as it stands.

Mr. Childers

I am afraid I could not agree that Senator Duffy's amendment improves the phraseology. Again we have to read this section in an ordinary common sense way. For example, a particular class of civic improvements might mean the inauguration of a number of scholarships for a particular purpose in connection with vocational education. Particular classes of civic improvements might mean a number of scholarships not only for vocational education but for vocational education and agricultural education. One particular civic improvement might be taken to mean the establishment of a memorial park for the benefit of the inhabitants of a particular area. I can only read the section in an ordinary common sense way and I frankly do not think the amendment would improve it.

Mr. Duffy

I suggest the best way out might be to send this sub-section to George Bernard Shaw and let him tell us whether he would prefer it to the sub-section as I propose it should be amended.

Amendment, by leave, withdrawn.

Mr. Sweetman

I move amendment No. 5:—

To insert after sub-section (5), in page 3, a new sub-section as follows:—

(6) The making of an application to the High Court under sub-section (3) hereof shall be a reserved function.

Perhaps I might save time if I inquired from the Parliamentary Secretary whether he proposes to accept the amendment.

Mr. Childers

The actual variation of a civic improvement scheme is quite definitely under this Bill a matter for the authority, but an application to the court is clearly a function of the county manager under the County Management Act, so that the section of the Bill is quite clear. The county council has power to vary the civic improvement scheme, and it is the work of the county manager to carry out the actual variation on the instruction of the county council.

Mr. Sweetman

I am not too sure that the Parliamentary Secretary is quite right, and I will try to explain to him why. Sub-section (3) reads: "A civic improvement scheme may be varied by the local authority." I take it, therefore, that the definition of a local authority in Section 1 must mean the council automatically? Am I correct?

Mr. Childers

That is right.

Mr. Sweetman

Section 2 starts off: "A local authority may, from time to time, adopt schemes." If it is necessary to define that the local authority means the council, that it means the elected members of the council and not the manager, why was it necessary to put in sub-section (5)? The words "local authority" are exactly the same in Section 2 (1) as they are in Section 2 (3), and if they mean what the Parliamentary Secretary suggests in sub-section (3) they must equally mean it in sub-section (1). Therefore, sub-section (5) is terribly unnecessary. I cannot conceive the Parliamentary draftsman putting in sub-section (5) if it was entirely unnecessary. Therefore, I would suggest that whoever gave the Parliamentary Secretary that explanation was not quite accurate because, if "local authority" means one thing in one place and not in another, it is a new method of construction.

Mr. Ryan

I think Senator Sweetman has confused an application to the court for the variation of a civic improvement scheme with its variation by the local authority. In sub-section (1) of this section the local authority is empowered to adopt a civic improvement scheme. In sub-section (3) the local authority is empowered to vary that scheme if sanctioned by the court. Sub-section (5) provides that the adoption of a civic improvement scheme shall be a reserved function. Probably Senator Sweetman intended by his amendment to provide that the variation of a civic improvement scheme shall be a reserved function also.

Mr. Sweetman

I quite agree.

Mr. Hearne

Is it quite clear that the adoption of a civic improvement scheme is a reserved function, and that the variation of that scheme is a reserved function also?

Mr. Sweetman

It is not. The adoption unquestionably is, but I doubt about the variation.

Mr. Hearne

I cannot understand that. First of all, there seems to be little doubt that the adoption of a civic improvement scheme is a reserved function.

Mr. Sweetman

Oh, no. There is no doubt about that.

Mr. Hearne

Now, the variation of that scheme is made by the local authority which adopted it. In accordance with sub-section (3) a civic improvement scheme may be varied by the local authority which adopted it. If the adoption of it is a reserved function, does it not follow that the variation of it is a reserved function also?

Mr. Sweetman

I do not think so.

Mr. Ryan

The local authority which adopted it may be the county council. If it is a reserved function the scheme can only be adopted by the elected members of that local authority. Therefore, the local authority which adopted it would still be the county council, and it may be varied by the county council. The question is whether it should be varied by the elected members or by the county manager, so to speak.

Mr. Childers

I think I can elucidate this particular problem. Suppose a civic improvement scheme were adopted in connection with the bequest of a benefactor who died and left money for the establishment of a memorial park in a certain part of a town, and specified the actual townlands in which that park should be constructed. Later on, it was found far more suitable to use those townlands for the purpose of erecting houses, and it was necessary to apply to the High Court to change the civic improvement scheme and build the memorial park in a different place. That would quite clearly be a variation of the original bequest. As I understand it, and as I have been informed, it is for the local authority, the urban council, to come together and to vote that a variation be applied for to the High Court.

Mr. Hearne

In other words the first decision must be made by them. It is a reserved function.

Mr. Childers

Under, I think, Section 32 of the County Management Act, it is for the county manager to take all the executive steps in applying to the High Court. I hope that is sufficient explanation.

Mr. O'Dea

I would not agree with the Parliamentary Secretary in that at all. I think the alteration of a scheme is entirely a matter for the county manager and that the county council would be told they had no right to vote on it. The county council never performs reserved functions. All the executive functions are done by the county manager, and the County Management Act provides that all legal matters are to be conducted by the county manager. I think the county manager would tell the council which came together to vary a scheme: "That is none of your business and you have no right to vote on it."

Mr. Ryan

I think sub-section (5) should be read: "The adoption and variation of a civic improvement scheme shall be reserved functions."

Mr. Sweetman

That would be a much better amendment than mine. The whole difficulty here is the same difficulty as we have had with every Bill which came up to-day, starting off with the Agricultural Wages Bill and going on to the National Stud Bill, the Johnstown Castle Bill and this one— that they were produced to us at a ridiculous time, and that we were then put in the position of having to take it or leave it. The attitude was: "If you do not want to take it, call the Dáil together again, and we will brand you as the people responsible for it." That was the line taken with all those Bills, in fact, though it has not really been said in that blunt, coarse, rude, way. But that is what it amounts to. I have been quite deliberate in putting down amendments even in the very limited time at our disposal. For those five Bills, we had only one week between the Second Stages and to-day. Of course, I know Senator Quirke will tell me, quite accurately, that we could have postponed the sitting until next week, but we had to consider, and consider carefully, the civil servants who are trying to get away on holidays. It would not be fair to leave them out of our consideration. That was one of the reasons why I agreed—although I had not the time I would have liked to go through those Bills—to sit this week rather than postpone them for another week, but because I felt that being asked to rush through things in the way that we were asked to rush through them was such a bad principle, I have put down a great many amendments, and I have quite deliberately spoken to some of them although I knew perfectly well before I came in here to-day that it was only just a matter of making a protest, because obviously no Minister or Parliamentary Secretary was going to call back the Dáil.

Mr. Quirke

I think even at this late hour it would not do to let Senator Sweetman get away with anything like this. There was agreement to take all these Bills to-day and to sit late to-night to finish them. That agreement was subscribed to by Senator Sweetman on behalf of the majority of the people on the other side of the House. That was the agreement come to with all Parties, if one may be excused for mentioning Parties in this House. Now we have Senator Sweetman coming along and protesting against the way that he is being rushed. It is Senator Sweetman and a few other people who are responsible for that. In fact, I was pressed into action myself, not, mind you, on behalf of the civil servants who would be held here if we did not finish to-night, but by reason of other arguments that were put up, and I think the strongest argument that was made for finishing to-night was the Galway Races.

Mr. Sweetman

For which I could not get a ticket.

Mr. Quirke

Then we had Senator Sir John Keane protesting against the way that he was being rushed, although he spent a good deal of time to-night speaking about the agricultural colleges. When he had made all his speeches on that question he simply folded up his tent like the Arabs and went away.

Mr. Sweetman

He spent the whole day here doing the business of the House which is more than the Leader of the House did. The Senator might have the reasonable decency of refraining from making that remark.

Mr. Quirke

I think I had reasonable decency in trying to arrange to meet the Senator's request that we should sit to-night and finish the business. The Senator should not be talking about rushing now in view of that, and we ought to get on with the business.

Amendment, by leave, withdrawn.

Sections 2, 3, 4, 5 and 6 agreed to.

Title agreed to.

Agreed, that the remaining stages be taken now.

Question proposed: "That the Bill be received for final consideration."

Mr. Duffy

I would like to know from the Parliamentary Secretary if it is intended on this stage to move an amendment to meet the point which was mentioned by Senator Ryan so as to make sure that when the Bill becomes an Act the revision scheme will be a function of the elected members of the county council. Under the Bill as it stands there is no assurance that the elected members will have anything to say whatever if, on the application of some person, a revision scheme is sanctioned by the court. The point raised by Senator Ryan ought, I think, to be made clear.

Mr. Childers

I am afraid an amendment cannot be accepted on this stage.

Mr. Duffy

In that case I do not think it matters much whether we discuss the Bill further or not.

Question put and agreed to.

Question—"That the Bill do now pass"—put and agreed to.

Mr. Duffy

I want to be recorded as dissenting.

Bill ordered to be returned to the Dáil.