The Minister indicated last night that it was in respect of sub-section (3) of this section that he would determine the powers of the managing director , vis-a-vis the board as a whole. The sub-section states that a member of the board shall hold office on such terms as shall be fixed by the Government at the time of his appointment. I suppose that will be done by Government Order. As to the question of the actual powers of the managing director apart from the question of the period for which a man is appointed and his remuneration—I am not worried about that at this stage—I do think, as far as the terms of the managing director's appointment are concerned, these terms should be tabled so that the Houses of the Oireachtas could see what powers were being given to the managing director and what powers were being reserved to the board as a whole to—I do not care for the word but it expresses what I have in mind—control him.
Turf Development Bill, 1945—Committee (Resumed).
There would not be such a precise definition of the managing director's powers and duties as the Senator appears to think. The warrant of appointment of the managing director would indicate that he was being appointed as such and would contain, apart from the general conditions of appointment, an indication that he, as managing director, would exercise the powers and duties as such. I have in mind a warrant of appointment similar to that at present issued to members of the Electricity Supply Board although the members of the Electricity Supply Board are not given specific duties in relation to the board's undertaking. The publication of the warrant of appointment would not give the Senator the information he requires and I do not think it would be a desirable precedent to establish although, ordinarily, information as to the terms and conditions of the appointment of managing director would not be withheld, if requested, in either House of the Oireachtas. So far as I know the warrants of appointment of the members of the Electricity Supply Board have never been published, although the terms and conditions of appointment are known. I do not contemplate that there will be any one document which will specify, in a precise way, the matters in relation to which the managing director will have powers independently of the board. It is not contemplated that he will have powers independently of the board. He will exercise his functions as managing director subject to the board, and will carry on only such specific activities as are delegated to him by the board. The publication of any specific delegation of authority, in the form of a statutory document, would introduce what Senator Sweetman is so anxious to avoid— a degree of rigidity which would be undesirable. I can conceive circumstances under which the board would delegate certain functions to the managing director in one week and change its mind the next week, and I certainly think it should be free to do so.
That is the very point that I was on yesterday. I wanted to be clear whether it was the Government that were going to fix the terms and powers of the managing director or the board, as such. If the board is going to fix the terms as such——
The board will not fix the terms of appointment.
Will it fix the terms of his powers?
Yes.
If the board is going to fix the terms of his powers then I am satisfied, because that is a different story altogether. In that situation then, the Government's warrant of appointment is tantamount to saying that X is going to be managing director, and that what X can do as managing director is your business. That is a very different thing from the indication that we got yesterday. Whether we got it correctly or not, I do not know.
It is intended that the managing director will carry out his duties subject to the board.
And will carry out such duties as are delegated to him by the board?
Yes.
And only such duties?
Yes.
Has the Minister in mind that the managing director will be a member of the board, subject to a majority ruling of the board—that he will be a servant of the board although a member? I hope the Minister has not in mind anything like that of the position of a county manager whereby there will be certain reserved functions.
There is nothing of that kind intended.
It is satisfactory to know that the managing director, although appointed by the Government, will not have the power of formal access, apart from the board, to the Minister.
I should imagine that the board would ordinarily contact the Minister and communicate decisions to him through the managing director.
There is a difference between the board and the managing director. The managing director will not have power to go to the Minister without the consent of the board.
I wonder if this Bill is sufficiently full? I do not want to have rigidity at all, but rather that there should be a lot of pliability, and that the members of the board would have full power to do whatever they wish. Certain powers are being given to the board under the Bill with regard to the appointment of officers, the fixing of salaries and so on, as well as the power of delegating the duties of the managing director.
I would like to know if the members of the board have power to revoke the giving of that authority. This is a company that is to be set up by statute, and a company set up by statute has only the powers given to it by the statute. It cannot go one inch beyond those powers. The powers that are being given to the board for the fixing of rules for the carrying on of its business are very indefinite. I would suggest that the rules be drafted, put into a schedule and be adopted for that purpose. If the board is to be given extra powers to enable it to carry on or to make more rules, that I think should be set out.
The impression which the Minister's statement made on me last night was that the Minister was going to define clearly the powers of the managing director. I may have picked him up incorrectly, but that certainly was the impression that it made on me and on my colleague, Senator Sweetman. It immediately struck me then that the document which defined the powers of the managing director would be available. Now it appears that the managing director will have his powers defined by the board. I am afraid that the assent which the Minister gave to Senator Sir John Keane made the thing a good deal too simple. I do not think it is so simple as that. Since the Minister will have the appointment of the managing director, the managing director will, of course, have direct access to the Minister and to the officials of the Minister's Department. That strengthens me in the view expressed last night that the board cannot have any great power at all. It seems to me that the Bill is drafted for the express purpose of providing that, if the managing director and the board do not agree, the Minister will make them agree with the managing director. That seems to me to be the clear intention of the provision in the Bill. Otherwise, it would not be framed in this way. I am making a simple statement of fact when I say that I think the Minister is dealing with personalities available to him and is making arrangements to suit the personalities available to him. I think it is rather a mistake to put that arrangement in a rigid way into an Act of Parliament.
I have not in mind any particular individuals at all. I am thinking only of a scheme of organisation. While I say that the managing director will act subject to the board and will at all times have to conform to the policy determined by the board, I would not like it to be understood that the board can prevent the managing director acting as managing director. The person who will be appointed to that office will be appointed to act as managing director, and it would not be within the competence of the board to deny him facilities to act as such. When Senator Sir John Keane talks about access to the Minister, I want this to be understood also that, when official dealings between the Minister and the company arise, the Minister will deal with the board of the company. The managing director of the company will, however, be free to come and discuss his problem, to seek advice or put a point of view before the Minister. I certainly would not like to say that the Minister would not hear the managing director even if the views of the managing director were different from those of the majority of the board.
I am thinking now of other companies in relation to which I have somewhat similar responsibilities. In the case of the Electricity Supply Board, the chairman of the board will frequently come to me to discuss matters or put a point of view before me, sometimes alone, and sometimes accompanied by the members of the board. On occasion I may want to get information from the board, or I may want to put a point of view before it. I ask the chairman to come to see me and discuss the matter with me. I would not suppose that he would seek the consent of the board first before coming to see me. The managing director of this company would have a similar right of access, but, in so far as official dealings between the Minister for Industry and Commerce or the Government and the board are concerned, it is with the board, as such, that the dealings would take place
This question of the managing director is very important and it is well that a certain amount of time is being devoted to it. In any ordinary business, the powers of a managing director are necessarily wide. It is because they are wide I am still puzzled as to how the managing director is to do the things that ordinarily fall to such an officer in a company constituted as this company will be, with the chairman as a member of the board. We have been hearing a great deal about the managing director but we have heard very little about the chairman. What is he to do? Is he merely to preside at periodical meetings of the board?
I am very jealous, as the Minister is, regarding the powers of the managing director. I imagine that they should work out as in an ordinary business. If the proper man be appointed, he will have an adequate conception of his duties and responsibilities. He would not be fit for his job if he had to run cap in hand to the board in connection with every little tittle tattle of administration. He must have a certain amount of executive ability and of executive power and I should like to have some information as to what his relationship will be with this chimerical chairman, as I think he must be regarded at the moment. The Minister said that he could not accept my view that these two positions should be coordinated. In many big public companies, it is the practice to have a chairman and a managing director, but I cannot see why you should have a chairman and managing director in an enterprise of this kind which is not competitive and which will have a specific job to do. The managing director should be fitted to be both managing director and chairman if he is the right man for the job.
Senator O'Dea will, I think, agree with me that, in an ordinary company, the powers of the managing director are fixed in either of two ways. The articles of association say that he can do certain things or, alternatively, they say that he shall discharge such functions as are delegated to him by the board.
That is right.
From Section 7 onwards, the sections of this Bill are similar to the memorandum and articles of association of an ordinary company. There is nothing in those sections qua se which is the equivalent of the provisions very often found in the articles of an ordinary company, that the managing director shall have certain powers. It could be brought in under sub-section (3) of Section 9, which we are now discussing. If it is not brought in there, the managing director would appear to me to have no powers except such as may be delegated under Section 16. I want to see that what is contemplated is clearly set forth. We should be able to see what is exactly in the Minister's mind. Whether we agree with it or not, is entirely beside the point. It would have been more satisfactory, from this point of view, if we had had an express statement, that the managing director would exercise such functions as the Government might direct in the terms of his warrant of appointment and, subject thereto, such further functions as the board might delegate to him, or, alternatively, that the managing director should exercise such functions as would be delegated to him by the board. The matter should be dealt with in one way or the other. Then, we should be able to solve Senator Summerfield's chimerical problem.
A great deal of this confusion could be avoided if the Minister had not taken to the Government this unusual and totally exceptional power of appointing a servant of the board in the person of the managing director. If that had not arisen, ordinary commercial practice would have been followed. There is no hard and fast definition of a managing director's duties. They arise as a matter of common sense in the ordinary course of commercial practice. I can see no inconsistency in having a chairman and a managing director. They are working every day in certain businesses and I am surprised that Senator Summerfield does not know that.
I know it all right.
The chairman is responsible for policy, while the managing director is the chief executive officer of the board and a member of the board. The Minister seems to regard this right of appointing a managing director as a question of principle. It is all wrong and, as long as it remains, he must expect those of us who know anything about business to be most suspicious of the whole affair.
The power given to the Government to appoint a managing director is not unusual. I cannot think of any case of a company of this kind, set up under statutory auspices, in which the Government had not got that power.
Did the Government appoint the managing director of the Electricity Supply Board?
We appointed all the directors.
But not the managing director.
No member of the Electricity Supply Board is described as managing director but there are, in fact, five managing directors on the board.
That is done by the board, not the Government.
By the Government. The Government appoint certain persons to that board to be whole-time executive officers of the board. They even appointed a member of the board, with very special qualifications, to take charge of one aspect of the board's work. The same applies, so far as I know, to the Industrial Credit Company and the Agricultural Credit Corporation. In the case of these organisations, the Government have power to nominate the managing director.
There is no managing director of the Agricultural Credit Corporation. The secretary is appointed by the board.
I may have been in error there. I should have stuck to the cases in which I have had personal contact with the organisations concerned. If provision had been made in this case for appointment of the managing director otherwise than by the Government, I should have expected an amendment to change that provision. I should have thought that the House would regard this as a desirable safeguard. Having regard to the extent to which public money is being risked in this undertaking and the exceptional powers being given to it by legislation I should have thought that the Seanad would agree that the Government should appoint the managing director and take that degree of responsibility for the efficient administration of the concern. I must confess that I am somewhat surprised at the way the argument has developed. I should have thought that the Seanad would ordinarily have required that the Government retain in its hands the powers proposed to be given to it here and, with these powers, the responsibilities which attach to their exercise.
Would the Minister say, without going into the personalities, what type of person he thinks ought to be on the board, apart from the managing director? This board will be differently constituted from the E.S.B. which, as the Minister says, consists of persons a number of whom are fulltime and have special qualifications. I take it that no member of this board will be full time except the managing director. What class of person does the Minister think should be on the board? Apart from saying that A.B.C. or D. should be on the board, what type of person has he in mind to appoint to the board?
That is a difficult question to answer.
It is not when you consider that the job to be done will be a very definite one and that the Minister says he will appoint a managing director to do all the executive work. The managing director will be not only a full-time officer but also a director and the Minister is to put him, it appears, under the control of the board. Surely the board must consist of people who are capable of controlling him and who have knowledge as well as experience.
If any member of the Seanad were given responsibility for selecting five members of this kind, he would not attempt to define the qualifications which a member should have and then pick five persons with similar qualifications. He would think of the board as a team. He would say that the board, to do its duty properly, should, apart from the personality of the individuals and their competence to direct an undertaking of this kind, have amongst them a person of wide business experience, perhaps a person with engineering qualifications——
That they should have different qualifications.
So that they would make an effective team. It is because of the desirability of ensuring that persons are chosen because of their suitability as a team that I find it difficult to answer the question as to what type of person I propose to put on it. The board will be appointed of persons holding various qualifications and between them constituting a useful team to run the undertaking.
That is a very vague answer. It seems to me that the Minister may take five supporters of Fianna Fáil and put them on the board. Is not that what it means and nothing else?
Do I understand from the Minister the position is going to be that, when the board is set up, the managing director will have given to him by the Minister a specific outline of his responsibilities?
No.
No? I have a little experience of these boards, as the Minister knows. I was seven years on a board like this one. It was slightly differently constituted, but something like it, nevertheless. The Agricultural Credit Corporation which I was on for seven years had a chairman who was a chairman as well as managing director.
And appointed by the board.
He was appointed by the board. He was given to us and we made the appointment. I have been trying to work out in my own mind how, in relation to the board which is to be set up under this Bill, the managing director is going to work— how he will work in relation to the chairman. I am trying to visualise what will exactly happen at meetings. Of course we naturally all assume that a managing director, unless he is a very stupid person—and he is not going to be that—will feel it essential to work in harmony with his colleagues, but I think the managing director's responsibilities will have to be defined by somebody. They will have to be defined, whether by the Minister or the board is not quite clear, but defined they must be by somebody. Unless that is done in a very specific way the position at meetings of the board could be a very difficult one. I do not care how competent a man may be or how competent the other directors may be, because the fact remains that the more competent they are the more likely they are to be critical of what may be done by the managing director if, to a certain extent, it would appear to impinge on the responsibilities which the board collectively ought to show. If they are to work as a team, then I think from the beginning you must define in a very explicit way the relationship of the managing director to his colleagues. Otherwise how will the board understand what they are to do? I can see that there are certain lines of policy which a managing director must discuss with his colleagues. There are certain activities about which no managing director, no matter how brilliant he may be, can have the full perfect view and knowledge to enable him to come to such a decision that would command the confidence of all his colleagues. All these matters will have to be discussed with the board. If you are to have a situation where the managing director comes to the board week after week merely to say what he is doing and to ask for the board's imprimatur for these things I think after a little while there would be a very unsatisfactory situation. I must confess to a doubt as to the usefulness of having a managing director of a company and then the chairman as well, and I think the Minister ought to consider whether it would not be more workable and satisfactory to have the managing director the chairman. I think it is a queer thing to have a chairman, a managing director and a secretary of a company sitting down together at a board meeting. It is difficult to see who is the subordinate. The chairman ought not to be, but if the managing director is to be master of the whole situation then I think the Minister ought to give some more consideration to the whole matter. At least he ought to give us more information to satisfy us that this machinery will work satisfactorily.
I do not want to be reopening this matter again but I think it is most disastrous if you are to constitute a stereotyped form of management and set it up in this company. That is the danger. Circumstances may develop which will require a different type of management to that of managing director and that cannot be done without legislation. That is most undesirable and thoroughly unsound.
I do not know if that is so. I am a director of an ordinary limited company and we have a managing director but he is not chairman of the company. We have a different chairman completely. It works very well and I think it is the better way.
There is no better way.
There is, I suggest, a better way. Very often a managing director will have to be away and it would be difficult to have meetings if you had not a chairman independent of the managing director. There is more control over a managing director when he is not chairman. Under Article 16 this board has power to confer functions on the managing director. I wonder, however, has it the power to take away any of the power it grants. Has it any power by resolution to do that?
There could be a notice of motion to rescind.
Could they not have that power under the Act without doing any harm? I would like to see all these powers given the board whether by regulations put in the schedule of the Act or by some other way.
Under the section the intention is that the chairman of the board together with the managing director who is the leading member of the board and the board will decide policy and the managing director is intended to be, and will be, the chief executive officer for carrying out and implementing that policy when the board is not in session. Under normal conditions once policy is decided naturally the managing director would be normally capable of carrying out the executive functions and the ordinary work of the company so long as he did not run counter to the general policy or outlook of the board. I cannot see that there should be so much need for hair-splitting on this because if a situation arises in which harmony ceases to exist between the chairman and members of the board and the managing director we must remember that there are plenty of powers in the Bill to ensure a remedy for that situation because the Minister appoints the chairman, the members of the board and the managing director and he may also remove them.
Would the Minister indicate his views on the question of a member of this board being a member of the Oireachtas, not so much in regard to this House as in regard to a House selected on a geographical basis? Most of the members of this House were out in the country the other day and I think, having seen the large stretch of territory dealt with, they will agree that it would be most undesirable that a Deputy representing Kildare or Offaly should be a member of the board. The inferences surely are perfectly obvious. This House is not elected on a geographical basis, and I am not addressing myself to it, but so far as the other place, as I suppose it may be called, is concerned, it is elected on a geographical basis. I think to have a member of that House a director of Bórd na Móna, having regard to these two constituencies which I have mentioned, would open up a vista which none of us, I think, would care to contemplate.
That matter was discussed in the Dáil and I intimated there that my personal view was in favour of excluding members of the Dáil from boards of this kind. I had to admit the possibility of exceptional circumstances but, subject to exceptional circumstances, I would regard it, on purely practical grounds, as undesirable that members of the Dáil should have responsibility for the administration of concerns set up under statutory authority. I was thinking of the problems that might arise for the Minister or the Government from the fact that another member of the Dáil was in a position to be questioned concerning the activities of the undertaking or to make statements on its policy and intentions independently of the Minister.
The general issue of the desirability of having members of the Oireachtas in positions of this kind was raised in the Dáil. On that general issue, I pointed out that the practice had varied considerably in the past and expressed the view that it was desirable that there should be an attempt made to investigate the possibility of getting agreement on future practice. I invited the Parties in the Dáil to consider tabling a motion to establish a committee to inquire into this and certain other matters of a similar character on which divergent opinions had been expressed from time to time. I found that there was, amongst members of the Dáil of all Parties, a feeling of resentment to a statutory bar on their nomination to these boards which had appeared in some Acts. Even though they might have agreed with my point of view as to the undesirability of having members of the Dáil on those boards, they felt there was in the statutory bar some implication which they resented. I asked the members of the Dáil not to press the matter to a decision in relation to this Bill until there had been that investigation of the position generally, and that was agreed. I understand and I hope that there will be a motion to set up such a committee which will try to get a uniform practice generally adopted in relation to these matters.
I feel that that is a very sound attitude. I remember the Minister dealing with it in the Dáil. It is embarrassing for a member of the Dáil to find himself in a position to discuss matters from the inside. In the case of this Bill, the member of the House who is a member of the Turf Board quite rightly decided not to take part in this debate. The Minister's attitude suggests a method of bringing the matter to a satisfactory conclusion.
May I ride one of my favourite hobby-horses for a moment? I object to the title "Eire" as applied to the Twenty-six Counties, because that is a monstrous misuse of the Irish language. The word "Ireland" has been used also, which is a misuse of the English language. I see that the draftsman has adopted a euphemism and has avoided both Irish and English by using the words "national territory", saying:—
"If and whenever a member of the board...ceases to be ordinarily resident in the national territory...."
That is an improvement, at any rate, on the outrage in the Irish language by using "Eire".
A quorum of two out of seven seems strange. We have the chairman and the managing director, plus five, making seven, yet two will form a quorum. Even allowing for the fact that there might be vacancies, we may assume there will be at least five members. We should make a higher quorum, particularly as by so doing we would do one of the things I want to do, namely, have commercial directors with commercial salaries.
The board may not consist of seven members. What the Bill provides is that it will not consist of more than seven. There may be less than seven. I suppose there is a case there for saying that the quorum should be three, so that it could not consist of the chairman and the managing director. I will consider the point for the next stage.
I move amendment No. 4:—
Before paragraph (e) to insert a new paragraph as follows:—
(e) to reclaim, cultivate and afforest land from which turf has been produced.
The Minister may say that the board has power to do this, but I have examined the sections and cannot see that such powers are vested in the board. It seems its powers are all to be exercised for the purpose of improving the production of turf and turf products and they have to do in the main with the production of turf. It may be that the board has power to do this, but I would like to make sure of it. In my judgment, it is as big a task as that which has been set the board in the marketing of turf.
I have been to that area now on two occasions, including the visit on the last day, when members of the Seanad availed of the managing director's invitation to see the place. It was an experience we all enjoyed and were the better for having had. Seeing is believing, and we saw there in operation a prodigious effort with very far-reaching consequences. It was evident that the main thought of all concerned was the production of turf. However, from the beginning, I saw another aspect of the problem and I continue to see it. I see that area, in a time not very far away, viewed in relation to the efforts we saw being made the other day, when turf will no longer be the main concern of the development in that area. While the Minister has given us figures with regard to the capital investment which this undertaking will demand, I feel that, in order to do justice to this enterprise, he should couple with it the reclamation of the area, for cultivation or afforestation— it does not matter which. Since this expenditure is to be incurred, there should be such a plan, right from the beginning, and an examination of the whole scheme which is envisaged. I suggest to the Minister that it is mainly concerned about the production of turf and that not very much thought has been given to what will happen the production area afterwards. I am not finding fault with anybody for that because it was inherent in the situation which confronted the board. They were called upon, in very trying circumstances, to produce fuel for the country and they faced up to that task. One could see the dimensions of the task which confronted them when one went to the bogs.
That was the main concern; what was to happen afterwards was something about which they had not time to think or about which they were not commanded to think. There were other reasons why it might not be thought of. I suggest to the Minister that right from the setting up of this new Turf Board, these people should be got together and they should be asked to envisage, not only the production of turf on an area which apparently will be cut out in 25 years, but what is to happen afterwards. What is to happen afterwards is going to be determined by the plans you make for development right from the beginning of the first meeting of the new Turf Development Board. A certain line of development struck me immediately I saw the place, and I would have pointed it out to the Minister had I the opportunity. He is not a countryman and he may not appreciate the requirements in the way that most of us who were brought up close to the bog would understand them.
To me, it seems obvious that, right from the beginning, not only must you engage in the policy of cutting away the turf but you must have just as powerful equipment available to the Turf Development Board for the purposes of reclamation. Reclamation means that right after your huge digger has done its job you should have an excavator coming along, getting up the gravel and the calcified deposits which are underneath the turf, putting them aside for the day when you are going to start in with your reclamation scheme. As I see the development there, if you do not engage in work like that now, you are going to wait until you have covered up the deposits which you require for your reclamation scheme. I would imagine that the first responsibility of the new board would be to get together a number of people. I think there is such a thing as a landscape engineer. You should get together, not only people who have the problem of turf production to deal with, but people who would look at that territory and discover how it could be utilised when the turf has been cut away. That would mean that right from the beginning, apart from equipment for turf production, you should have equipment for the purposes of reclamation.
You want to get right from the beginning your soil scientists and your drainage engineers. You would want to get people who will tell you, or the people who can imagine, how many hundreds of acres you are going to leave in plots and where drains and roads are to be made. Right from the beginning you must have your aims clearly set out and what purpose the residue is going to be utilised for. Is it for afforestation or land cultivation? Who are to become the possessors of it? That is again a problem upon which I am not quite clear.
Someone might suggest, if it is going to be utilised for afforestation, that it should be passed over from the Turf Development Board to the Forestry Board. If you are going to do that, you will probably have to wait. I just do not see how it is going to be operated. My view about it is that the people who should handle the whole thing would be the Turf Development Board. It may be that perhaps you would require a Tennessee Valley Organisation and that you should have this right from the beginning. You have 4,000 acres in Clonsast area and presumably you are not going to enter on the task of reclamation until you have cut the turf away from these 4,000 acres. That is going to occupy 25 years, and if nothing is to be done in the way of reclamation until you have a considerable area cut away, I think you will have neglected your opportunities.
I do not want to take up much time discussing this matter but I think that there should be consideration for the whole scheme. I am quite convinced that it was impossible to give this aspect of the scheme the consideration that it deserves and that requires to be given to it, up to now. I would add the further point, that you have considered the economics of your turf development on the basis, as far as I can judge, of the expenditure being entirely for the purpose of turf production, without taking into account at all what the value of the property will be when your turf is cut away. I think myself that is hardly fair to the scheme. I think myself it will raise the cost of turf production to a point that is hardly fair in relation to the value of the property which will be very valuable for some other purposes when the turf is cut away. I am convinced that a certain portion of the capital invested should be put against the scheme of reclamation which inevitably must follow when your turf development work has run its course.
I have the feeling that to do what should be done there in the way it should be done, it is necessary to have the duties of the board more specifically stated in the section than at present, because I can see that the reclamation and the management of the area, for the purpose to which I have made reference, will be even a bigger undertaking than what the Minister is passing over to the board in the form of the development of turf.
I want strongly to support the principle behind Senator Baxter's amendment. In my view, the primary object of the operations that are going to be carried out on our bogs should be, not the provision of turf which will be a matter occupying only 20 years, but the reclamation of the land so that that land may be gainfully used, not merely for one generation but for countless generations. Senator Baxter has already said that due to the approach of the Turf Development Board to this problem, an approach necessitated by the problems of the emergency, perhaps it has not been possible as yet to work out a reclamation scheme which would be desirable. I think, however, it is absolutely essential that that reclamation scheme should be worked out at once, so that there would be a clear picture not only in the minds of the members of Bórd na Móna of what they intended to do in regard to reclamation, but that they would inform all those persons who are interested directly in their work what their intentions were.
We deal in a subsequent section with the question of roads. The Turf Development Board has been approaching county councils in regard to the erection of houses. We must consider those roads and those houses not merely from the point of view of the utility that they are going to have for the next 25 years, but for the ultimate utility they are going to have when the land has been reclaimed. It ought to be possible now to site the new roads and to site any houses that may be required in such a way that those roads and those houses will serve the dual purpose of assisting in turf development, and, in addition, will be available for the proper use of the land after the turf has been cut from it— so that the land can be used for ordinary agricultural or forestry purposes. That cannot be done by anybody—it cannot be done by a local county council—until the board has thoroughly examined the problem, in conjunction with the Department of Agriculture and the Forestry Department, and until, as a result of such examination, some sort of White Paper or report is made available.
As I said yesterday, I quite appreciate that during the emergency it was quite natural that the provision of fuel was bound to be the all-important thing, and that, consequently, it was not possible to give this matter the public attention that it deserves. It should, however, be the ultimate aim of the board so to produce fuel that the land it leaves behind will be of the utmost use. I want to stress that, if in the production of fuel, there are two alternatives open to the board at any point, and that under the first alternative the fuel was slightly better and the land, when reclaimed, would be worse, and that under the second alternative the fuel would be slightly worse and the land, when reclaimed, better, it is the second alternative that it should adopt every time. It should consider that it is the ultimate condition of the land that is going to be the really important thing and not the fuel that is produced for merely one generation.
I do not think that that consideration can be stressed too often. It is because of that that I was particularly interested in putting some queries to the Minister in regard to a couple of bogs as regards their area and life, the amount of turf that is to be taken from them and so forth. I have not heard his answer to those questions. I do not propose to weary the Seanad on this section by repeating the statements I made on a previous occasion. The reason why I am particularly interested in this is, that I want to get exact information as to the depth of turf and so forth in the bogs that are being developed so that it would be possible to judge how those bogs can be subsequently reclaimed, whether we are going to have them reclaimed and whether they can be reclaimed by immediate agricultural use, or whether it would be necessary to do what has been done in other countries: that in the actual peat itself holes would be dug and filled with lime and soil, that trees would be planted in the holes, and that after 20 years the trees would be cut out so that, after the 20 years, there would be sufficient humus on top from the decayed leaves over that period.
They had to do that in certain countries where they were not able to go right to the root of the peat content of the bog and get down to the lime. I was anxious to know whether the board felt that it could get right down to the limestone sub-soil here, or whether it felt that it was going to have to reclaim the land on the top of a certain strata of peat. I do not know whether that has been given consideration or not.
If that method has been considered, all that one can say is that it has not yet reached the light of day. Speaking for my own county, I say that it is essential for the county council in Kildare to know, in the consideration of its future development regarding houses for agricultural labourers, quite apart from any question of housing for this scheme, how it is proposed to utilise the bogs from which turf has been cut. I hope the Minister will now indicate that he proposes to ask the board to publish its views on this subject at the earliest possible opportunity.
I desire to support the amendment. Looking at the section, I think it is not absolutely clear that the powers given to the board at the present moment would allow it to expend a substantial amount of money on research or preparation for the after-care of the stripped area. We know that this is a matter of some technical difficulty. There has been a considerable amount of preliminary research work done on different layers of bogs. Certain papers have been published on the subject by, amongst others, Senator Fearon. It may be that a proper scientific inquiry has been made, and that it will be necessary to put aside a certain proportion of the top layer for mixing with the lower layers and, ultimately, with the underlying lime basis. The exact proportion of the layers which will have to be adopted for providing a proper basis for the proper growth of future vegetation is a matter which, I think, has not yet been fully determined. I was particularly glad to see the substantial amount which is set aside in this Bill for the purpose of scientific investigation. I think that that scientific investigation should be directed, not merely to the best way of getting turf which, of course, is the primary consideration of the board, but also of laying the foundation for the future agricultural use of the under surface. Therefore, if the Minister has any doubt as to whether the wording of Section 17 is or is not sufficiently extensive to allow that to be done, I would suggest that he might accept the Senator's amendment which would make the matter quite clear.
I think that while the amendment is commendable there is some doubt as to whether it would achieve the purpose outlined by Senator Baxter. I have some doubt as to whether it would do so. The proposal is that this amendment should be grafted to the section. It will be observed that it imposes certain duties on the board which are described in paragraphs (a) to (e), inclusive, in Section 20. There are certain general powers conferred on the board, but in neither case is there any provision which requires the board to have regard to the use that is to be made of the land once the turf has been removed.
I do not think that the board can lawfully concern itself under this Bill with the use that is to be made of the cutaway bog. Their job is to do anything that is required for the purpose of getting turf and inducing people to use it. There is in the possession of the board a very large area—some thousands of acres, which, in the course of time, will be cutaway bog. I am not sure how that property is held. Some of it, I understand, is held by the State, the board being the agent of the State for its own functions. But Senator Baxter is concerned with a function that can arise only when the bogs are cut away. The amendment which Senator Baxter proposes to insert in Section 17 would impose the additional duty on the board to reclaim, cultivate and afforest land. One does not reclaim, cultivate and afforest land until one knows whose land one is reclaiming, cultivating and afforesting and what is to become of it when it is reclaimed. What we should concern ourselves with at this stage is the intention of the Government in relation to this land when the turf campaign will have exhausted itself in those areas.
In this connection, it is but fair to say that we are at a tremendous disadvantage in this House. This is the third Bill relating to different aspects of the same problem which has been considered in this House during the past six or eight months. Yesterday, we had the Forestry Bill. Some months ago we had the Drainage Bill. To-day we have the Turf Bill. All these are, in the conditions of this country, related subjects. Drainage, afforestation and turf-cutting are all related. It is regrettable that some method has not been found—especially during the emergency when so much could be done and was done under emergency regulations—to relate the activities of three separate Departments dealing with three aspects of what is a common problem. In Clonsast, there is a vast area which, I understand, is the property of the State. That bog lies at a high level. Kildare is at a considerable height over sea level.
Clonsast is not in County Kildare; we are bad enough.
It is in the neighbourhood. From the appearance of the bog, it is at a considerable height over sea level. Therefore, although drainage may be a big task, it does not present an engineering difficulty. The change which has taken place in Clonsast in the past three or four years conclusively proves to me that there is no technical difficulty in draining that vast area of bog. It needs to be drained.
There should be a policy in relation to the utilisation of the bog once the turf is cut away. I do not think that this is the occasion on which to outline that policy. The main thing is to get an assurance that, having possession of the property, the State will use it for State purposes. Not alone have you the property in the possession of the State but you have an organisation in the board, which is handling this property for one purpose, capable of following up the turf-cutting by whatever other processes are necessary to make the property useful. I see no reason why a duty should not be imposed on the board in this Bill to afforest that whole area if it is believed that afforestation is the right approach to the future use of that land. I think that there are other uses to which the cutaway bog in those areas might be put. I am entirely in favour of afforestation on a big scale but I do not suggest that afforestation should take precedence over other useful economic activities. If research and experience show that cutaway bogs in the Midlands can be used to greater advantage for producing vegetables or tomatoes, as is done elsewhere, there is no reason why they should not be used for that purpose. If it is found, on the other hand, that they can be more profitably used for afforestation, then by all means let us have a policy of afforestation. We cannot solve all those problems in this Bill but what Senator Baxter is endeavouring to do in his amendment is to impose on the board the duty of reclaiming the cutaway bogs for economic utilisation when the turf will have been disposed of. I think that we can do that and I urge that the Minister contribute his part by giving authority in the Bill to the board to carry out that reclamation work. I am afraid that we cannot ask the Minister to go beyond that. He has got nothing to do with afforestation and I imagine that, if he were to intervene, there would be wigs on the green. People are very jealous of their rights and privileges in this country and other Departments would be on their hind legs immediately if the Minister intervened. But the Minister can authorise the board to have regard to the future use of this property. He can include that in the Bill amongst the duties which he imposes upon the board and the board could prepare the cutaway bog now, as they go along, with that future use in mind.
I am in agreement with Senator Duffy to a considerable extent, but I do not feel myself able to support Senator Baxter's view. I think that Senator Baxter wishes to see the Turf Board engaging in afforestation. I think that that would be a completely wrong function for the board. In so far as preparation is made for afforestation or reclamation, when the bogs are being cut, well and good. But let the work be done by the appropriate Departments. Let afforestation be carried out by the Forestry Department and let improvements be carried out by the Land Commission when the bog is cut away. I am anxious not to give the Turf Board any opportunity of covering up their finances by engaging in expenditure outside the production of turf. I do not want it to be said that they are unable to show the true cost of turf-production because they had to do work of preparation or reclamation.
If such work is to be done economically by the Turf Board let there be a separate Vote under the heading of forestry or reclamation in relation to such work as can best be done while the bog is being operated but do not let any such work be done unless it is necessary in the interests of the board.
Táim ar aon aigne leis an Seanadóir Baxter maidir leis an aguisín seo a mholann sé a chur le dualgaisí Bhuird na Móna, chun go bhfágfaí uachtar na talún go slachtmhar tar éis obair an bhuird do bheith déanta agus an mhóin ar fad bainte. Ba ghránna an gnó é an taobh tíre— ceithre míle acra talún in aon áit amháin, do réir mar do hinseadh dúinn—d'fhágáil ina réitheach mhór tochailte gránna ná féadfaí tairbhe ná úsáid ar bith do bhaint as. Níor cheart leigint d'aon Bhord bheith cionntach in aon abláil den tsaghas san.
Tá súil agam go dtuigfidh an Bord go bhfuil sé de dhualgas orthu an talamh d'fhágáil ina ndiaidh i dtreo go bhféadfé úsáid tairbheach do bhaint as. Is cuma liomsa cé acu ullamh chun crann do chur ann a bheidh sé, nó chun curadóireacht d'aon tsaghas, fiú chun féar glas féin do bheith ag fás air.
Tá san alt seo don Acht faoin litir (a) "to produce and market turf and turf products" agus fén litir (b) "to foster the production and use of turf and turf products". Tá roinnt amhrais ar m'aigne cad é an difríocht atá idir an dá rud. An é is ciall do "foster" go mbeadh dreamanna eile, nach é an Bord, dá ngríosadh ag an mBord chun an saghas céanna oibre a dhéanamh a bheidh ar siúl ag an mBord féin. Más é sin an bun atá leis, níl puinn eolais fachta againn cad iad na coinníolla a bheadh ag baint leis an obair sin, nó cad é an gléas a bheadh ann chun a dheimhniú gur móin fhónta a bheadh le fáil uaith. Munab é shin is ciall leis, cad chuige (b) do chur ann ar chor a bith?
Tá abhar imní ag baint le cé acu freagra atá ar an gceist más é a thagann as go mbeidh deireadh le scéimeanna logánta móna atá á n-oibriú faoi láthair, na scéimeanna atá faoi stiúradh na gComhairle Contaethe ina lán áiteanna ar fuaid na tíre. Is scéimeanna riachtanacha iad sin, agus ní féidir déanamh gan an mhóin atá le fáil dá mbarr. An leanfaidh Bord na Móna dóibh sin go dtí go mbeidh sé ar chumas an Bhuird a ndóthain móna do sholáthar trína scéimeanna féin? Chím sa Bhille seo go bhfuil deireadh le Bord Forbartha na Móna agus go dtógfaidh an Bord nua cúramaí agus sóchmhainní an tshean Bhuird orthu féin. An bhfuil siad le gnóthaí agus comhoibriú na gComhairlí Contae in obair na móna do chur ar ceal nó iad a choinneáil ar siúl. Ba mhaith liom— agus ba mhaith lena lán daoine a bhfuil baint acu le tionnscail na móna —deimhniúchán a bheith ann ar cad a thárlóidh do na scéimeanna logánta seo sna trí nó cúig bliana seo chugainn, scéimeanna atá riachtanach ar fad faoi láthair agus a bheidh riachtanach ar feadh roinnt blian.
Ina theannta sin, tá imní ar dhaoine i dtaobh an méid móna a thuigimid ón Aire a bheidh le fáil ó Bhord na Móna —1,000,000 tonna. Tá sé le tuigsint, ó chaint an Aire féin, go mbeidh cuid den mhilliún tonna sin ag dul go dtí an Bord Leictreachais chun stáisiún leictreachais móna do choimeád ar siúl. Beidh cuid mhór den mhilliún tonna ag dul suas an simné sa stáisiún sin agus beidh laghdú mór dá réir sin ar an méid a bheidh le fáil ag an bpobal. Tá sé ró-riachtanach go mbeadh na scéimeanna logánta sin ann agus go mbeadh soláthar dheimhnitheach ar mhóin ann i gcóir cathrach agus bailte le hais ceanntracha móna, ar chostas níos saoire, toisc iad a bheith í gcomhgar láthair bainte na móna féin.
Is chuige sin ba cheart a mhíniú an ar intinn go leanfaí de na scéimeanna logánta atá san fo-alt (b)? Cad a thárlóidh do na scéimeanna ar fuaid na tíre? An bhfuil teora aimsire leo sin? An bhfuil scur le déanamh ar shaothrú móna faoi na Comhairle Contaethe a luaithe cuirfear Bord na Móna ar bun? Ina theannta sin, an é tuairim an Aire gur leor an milliún tonna, atá mar aidhm don Bhord nua, chun riachtanais na tíre i leith móna do shásamh?
This amendment has raised a very valuable discussion. We saw on Tuesday last the work that has been done, all the land that has been drained, the new rivers made, the miles of road laid down and all that sort of thing. I noticed also that some of the drains were covered in and made into French drains. That seems to indicate that it was intended that the land would be turned to a very useful purpose after the turf had been cut away. As Senator Duffy said, it is very important that the board would work upon its own land. I see by Section 29 that the board has power to acquire the land permanently and I take it that all the lands around the bogs that we saw on Tuesday last have been or will be acquired permanently.
County councils have done a tremendous lot of work—as I know in the case of my own county—in the development of bogs, but they have only acquired those bogs under the Emergency Powers Act for a period of two years. They can re-acquire at the end of that time. All those bogs which have been developed by the county councils should be acquired permanently. We are all hoping that, when some of us are gone to our deserts, there will be a beautiful countryside established in those areas we saw the other day. If the Minister thinks he has not power to start the work of reclamation now, I suggest he should accept this amendment.
Possibly, he thinks that the word "develop" in that section is quite sufficient, but it may be doubtful. It may mean to develop the bogs as bogs only and not as land, and I would not like the words "to afforest" because that is a matter which should come later on. Also, I do not know if the words "to cultivate" are the best to use. Should it not be stated "for the further cultivation"? I would suggest to the Minister that he would accept the amendment. I am sure it is a good draft.
Perhaps I might be allowed to add to the point I have made in relation to afforestation in so far as it concerns the board in relation to the facts of our legislation at the moment and Departmental responsibilities? I have no objection whatever to the functions of the forestry division of the Department of Lands being handed over completely to the board. I would regard that as a very natural and proper development.
When I referred to what Senator Duffy said, I was dealing with the point he raised as to whether the land belonged to the board permanently or was required temporarily only.
I agree that it is part of the board's general duties to reclaim worked-out bogs, and I do not think it is necessary to put that duty on them by a specific provision in the Bill, in so far as, in fact, it is not covered by the phrase in sub-paragraph (d), which gives the board the duty of developing and working the bogs and other lands vested in the board. I am assured that the Turf Development Board has always had in mind the necessity for providing for the ultimate reclamation and development of the worked-out bogs, and I do not think that Senators need, in the least, be apprehensive that the new Bórd na Móna will not be quite anxious to do its job properly in that respect.
I think there is something to be said for the suggestions made in the course of the discussion that the board should have on its staff a soil expert, or other person suitably qualified to advise the board on this aspect of its duties, and I will see that the suggestion is considered by the new board when it is appointed. I do not think there will be any doubt as to the duties of the board in regard to the reclamation of worked-out bogs and they will be fully authorised to incur any expenditure, or to undertake any works that may be necessary for that purpose.
I think, however, that it would be wrong to place on Bórd na Móna the obligation to cultivate or afforest worked-out bog. Senator Sir John Keane, in my view, has rightly suggested that work of that kind should be entrusted to some other organisation. The board will not be constituted for the purpose of carrying on agricultural or forestry activities, and I think that even at the end of 25 or 30 years, the members of the board then appointed will have, as their primary job, the production of turf fuel and will be chosen because of their suitability for directing enterprises of that kind.
When a bog is worked out, the Turf Development Board will complete the drainage and reclamation work that is necessary. They may then dispose of the land, or rent the land to whoever is to develop it for agricultural or afforestation purposes. I think it would be undesirable to put an obligation on the board to plan their activities so as to carry on forestry work or agricultural work on worked-out bogs. We should so organise the work of the board in the bogs in the light of their ultimate object of leaving reclaimed land behind them, and I think that obligation is fully covered, so far as this section of the Bill is concerned, by sub-paragraph (d) of the section. I do not think it is necessary to do any more than that, and I feel that this aspect of the board's work will be fully appreciated by its members.
The finance of the whole turf development scheme assumes a value in the residual land which will not be realised unless the reclamation work is adequately and properly done. I have considerable sympathy with the point of view expressed by every Senator who has spoken here but, nevertheless, I suggest that this amendment should not be pressed. The powers of the board, in my opinion, as set out in Section 17, amply cover the reclamation of the bogs. I can assure the Seanad that the board will direct its activities to this end.
I do not think that the board should be asked to contemplate afforestation or agricultural work when it is possible to transfer it, on a suitable occasion, to whoever is best fitted to do it.
I am afraid the Minister's speech has been a little disappointing. I do not take the view that Senator Sir John Keane takes, that it is work for another Department. We have too much of that kind of duplication going on. It is my view that the board should not wait for 25 or 30 years until the bog is cut out. The work should be tackled immediately, and, as Senator Sugrue said, it should be the duty of the board to keep the top of the bog in such a way that it can be made use of for that purpose as quickly as possible as soon as the turf is cut out. There is no use in waiting until all the turf is cut out so that all the land will be available. A start should be made right away.
Is the Minister sure that the sub-paragraph (e) covers it? Bogs rather suggest to me areas which are primarily used for the production of fuel. I may be wrong in my interpretation of the sub-paragraph and also in my interpretation of the words "other lands". I am a little bit doubtful if there is not a third category of land which has been bog, but is no longer bog, and yet is not "other lands", in the sense that it has been acquired by Bórd na Móna and which should be prepared for use for agriculture, afforestation or other purposes. Needless to say, I am not putting forward that in a dogmatic fashion but I think it is desirable that these terms should be made clear.
I do not think there is the slightest doubt about the powers of the board to do reclamation work on bogs which have been fully developed. If that is what is in mind, whether it is merely desired to clear up doubts as to the powers of the board or to put on the board some specific duty in more definite terms than is contemplated here, I think the board has that power and would regard it as a normal part of the development of a bog, not merely producing turf but leaving an area of reclaimed land behind them.
That is the way the present Turf Development Board has been working and that is the way Bórd na Móna will work. I do not think the obligation of developing bogs for agricultural or afforestation purposes should be imposed on the board. I do not think that should be done. This board has obligations in regard to the land to discharge in the sense that it must leave an area of reclaimed land behind it.
The Minister has not quite met the point. I am not disposed to contradict the earlier part of his statement, or to give judgment on it. I agree with the statement of the Minister that the actual cultivation of the bog, when it is cut away, should not be part of the work of Bórd na Móna, but I do think that there is a point in calling attention by specific wording, to the duty of Bórd na Móna to conduct the turf-saving business, and at the same time to prepare the bog and to leave it in proper condition for the authority which afterwards will do the actual cultivation. I am doing that only because it is very desirable to have an expression which will be clearly before the responsible body concerned of its duties. From that point of view I would like to have some form of words introduced which will make the duties of Bórd na Móna clear, beyond yea or nay.
I am afraid I was somewhat disappointed by the Minister's approach to this problem. In his statement, he made use of a phrase something like this: "That the board would be chosen primarily with a view to getting the best group of people for the production of turf." I am afraid that the production of turf has got such a grip of the Minister that he is no longer adverting to the other possibilities for the moment. I should like to say, in my judgment, that the other possibilities in this area are much more vast than what is going to come to the nation from the production of turf.
Unless we start at that, we are not going to do the job from the beginning in the right way. At the very start, we must visualise the use of the space, when the turf is cut away, for reclamation purposes. Senator Sweetman has dealt with the problem of the permanent drainage of the bogs. This problem of drainage must be viewed in the light of more and more cut-away bog becoming available.
I do not accept the point of view of Senator Sir John Keane, and some other Senators, who said that this cut-away bog must be handed over by the Minister for Industry and Commerce or by Bórd na Móna to the Land Commission or the Minister for Agriculture. Quite frankly I can see a condition in that area, when long before the last of the turf will be cut away somebody ought to be preparing shelter belts right along the outskirts of it. I do not think you should bring in the forestry people for that, you should bring in your own people, even the fellows cutting the turf ought to learn how to plant shelter belts if they do not know how already. I cannot see why people working in that area should not be encouraged to do that work.
If the Minister's view is that the first task of Bórd na Móna is to get off the turf and if the board is to be constituted only to get the best mechanism to provide turf, I am greatly afraid that the net result will be that the kind of development which will come from this scheme will not be the development we all desire. While Bórd na Móna is producing the turf, every effort should be made to develop the cut-away bog left behind. It will be too late to start planning afforestation and agricultural activities when the entire bog area has been cut. Plans must be made for the most economic development of the cut-away bog, whether in 100 or 500-acre plots.
Unless something is done about that in the near future, another generation will have to make considerably greater capital developments to bring about that type of development, than will be necessary if Bórd na Móna face up to the problem now. That is why I feel that the Minister should not address himself solely to the question of the production of fuel. I feel strongly that the production of fuel is only a means to an end.
I would like to say, in regard to the point made by Senator Kingsmill Moore, that the doubt that exists as to whether there is power in fact in the Bill to do the reclamation or the recovery of the area from which the turf is produced seems to be very real. Everything in Section 17 is related to bogs as bogs, and I have a strong feeling that if the board is expected and required to put back into a usable condition the land from which the turf is being cut, that should be expressed in the Bill in some way or other. Perhaps it is not necessary under the heading of duties.
There should be an enabling section.
One is not legislating in this Bill for an emergency. We are legislating for a generation, or probably two or more generations, and one can foresee that if the board, at some stage proceeds to expend £20,000,000 on the reclamation of cutaway bog, they may lend themselves or they may be exposed to a charge that they are spending money not authorised by the Act. I think that risk should be taken away. The board should have no doubt in their minds that they have power to do this work and that they are expected to do it.
I differ entirely from the view of Senator Kingsmill Moore and the Minister in regard to the ability of the board to do the job that is suggested here. The Minister speaks as if the members of the board had been born to become turf producers. I imagine if the board had the capacity to get turf on their own bogs, to put down railways, to build houses, to feed and maintain 500, 600 or 700 people, they would probably also have the capacity to put up glass houses, to plant trees, to grow fruit and market it. Somebody has said that poets are born, not made. I do not agree that that applies to directors of turf boards. I think they grow with experience. They learn the difficulties that have to be overcome, and they set about conquering these difficulties. What is needed for this job is exactly what was needed to get turf in the emergency—imagination, energy, courage. If these qualities can produce large quantities of turf during the emergency, they should surely reclaim cutaway bogs and make use of them after the emergency is over.
I am very disappointed, indeed, with the statement of the Minister. I shall not go over the matter again at length as I said everything I wanted to say in the first instance, but I do want to stress this point. It is quite clear that the Minister is approaching this problem as Minister for Industry and Commerce. He is approaching the problem only from the point of view of a Minister who has to consider the position of the country as regards a fuel supply. It is from the point of view alone that the problem has been approached. It is equally clear to those of us who visited the bog on Tuesday that, while immense work had been done in regard to the production of fuel, there had been practically nothing done, other than the incidental drainage, towards reclamation. The incidental drainage was necessary for the production of turf and I suspect that only because it was necessary for the production of turf, it was also decided that it would be used for the reclamation of the land subsequently. I say that there should be some published plan for the benefit of the local authorities who are going to operate in the areas concerned. There must be some idea at the back of the mind of Bórd na Móna as to how these lands are going to be utilised.
I do not think there was really very much between Senator Sir John Keane and Senator Baxter in regard to the phraseology of the amendment and in regard to what was at the back of Senator Baxter's mind. As I take the amendment, it appears to me that he wishes to make certain that Bórd na Móna will reclaim and cultivate the cutaway land until the time arrives when it can be handed over to somebody else as one unit. It is perfectly obvious that if in a particular area that bog has been cut away in one portion, and still has turf in another portion, there cannot be three or four different gangs of men working upon it under the control of three or four different Departments. The matter must be dealt with in one co-ordinated arrangement and, therefore, I think it is absolutely essential that the entire work should be undertaken by Bórd na Móna until it is in a position to hand over the whole cutaway land as one unit.
I think that arrangement has the added advantage that if there is an interim obligation on Bórd na Móna to deal with reclamation and cultivation, if they have to do it themselves, they will so operate their turf cutting as to make it easier for themselves to carry out their subsequent job, whereas, if the bog is going to be handed over piecemeal to somebody else, I doubt if there would be the same consideration from the board's point of view for the subsequent operations. I think the House will agree that, regardless of anything else that will occur, regardless of the fate of the amendment, the discussion that has taken place here to-day has been a valuable one, one which we hope will contribute to the importance that will be laid by Bórd na Móna on the ultimate user of the land. As we have discussed the ultimate user, I might perhaps also mention at this stage a point which I was going to bring up in regard to Section 38 as it may save some time later. I hope that when the question of the ultimate utilisation has been reached, before the board disposes of its interest in the cutaway concerned as reclaimed, they will first offer it to the Land Commission or the Forestry Department, as the case may be, before it is offered elsewhere. It would appear to me that that would be one of the methods of solving the difficulties of dealing with private interest in regard to acquisition which we have discussed here before, both with regard to the Land Bill and the Forestry Bill.
Before the question is put I merely wish to say that there is no disagreement as to the desirability of properly reclaiming worked-out bogs and there is no disagreement as to the intention of doing that. I referred to that on Second Reading when I informed the Seanad that the present Turf Board is proceeding on the basis that it is obliged to leave these worked-out bogs in a suitable condition. Bórd na Móna will proceed on the same basis. The only question that arises is whether the amendment is necessary. I do not think the amendment is necessary. With all respect to Senator Duffy's legal knowledge, I am quite certain that any court would decide that a bog consists not only of certain vegetable matter floating around in water but that it consists also of the land underneath the turf and the working and developing of the bog would be held ordinarily to include the reclamation of the land on which the turf originally rested. Certainly that is what is intended.
I would regard it as the primary function of the board to plan its whole activity with a view to making the fullest use of its assets, not only from the point of view of producing turf but of leaving the worked-out bog in the most valuable condition possible for agriculture or afforestation. Senator Duffy was, I think, led into error by his assumption that the board will work a limited number of bogs and that at a certain stage it will have no turf production going on at all but merely a number of worked-out bogs, and that it will then transform itself into a Bord na bhFeirméoir or some such body to build glasshouses or undertake market gardening. I should expect and hope that when these 30 or 40 bogs are approaching exhaustion, another 30 or 40 will be coming into production and that Bórd na Móna will continue indefinitely, so long as there is turf to be produced, and that at each stage, as each area is worked out, it will transfer the bogs, by sale or otherwise, to some person to carry out some other activity there, making sure that it has by its work raised the value of that land to the highest level so that it can recover a substantial portion of the money invested in its purchase.
It seems to me that the long title of the Bill gives one an idea of the duties of the board. It is an Act "to make better provision for the development, in the national interest, of the production, distribution and supply of turf in the State, and for this purpose to establish a board to be called Bórd na Móna, to define its powers and duties", and so on. It is well to keep in mind that the primary object of Bórd na Móna, is to make better provision for the development, in the national interest, of the production and distribution of turf. It should also have clearly in mind the further object of the reclamation of land. When one comes to consider the duties of the board, one has to remember that it is to be established for a definite purpose. Therefore, it would seem rather unreasonable to expect the board to undertake duties that are not exactly cognate—that is, afforestation or agriculture.
For that reason, I would not be in favour of Senator Baxter's amendment. It might be useful to give power to the board to do such things as he has indicated, but we must remember that if the board exceeds its powers the Public Accounts Committee might take exception to the expenditure of money in any way other than that defined in the Bill. It might be proper, when discussing the powers given in the Bill, to make specific arrangements for the doing of what Senator Baxter's amendment suggests, but I do not think it would be right to impose it as a duty in view of the fact that the board is being set up with certain definite powers. In view of that, it would not be reasonable to put on the board the obligation of looking after the cultivation, or afforestation of reclaimed land. I think it is quite right that it should be made clear to the board that the bog land should be left in a state that will make it a valuable asset to the nation for further development. The personnel of the board will be selected for their special gifts and experience, and it would not be fair, I think, to ask them to take on duties that are not exactly cognate to the work they are undertaking. It might be advisable to give them power to do so.
Mr. Patrick O'Reilly
I am in sympathy with the principle in Senator Baxter's amendment, because I think it is important to have it specifically stated in the Bill that the responsibility is on the board to manage the land that the bog sits on. Having listened to the Minister's speech, I am of opinion that the only concern of the members of the board will be the production of turf at the lowest possible cost—to make the project as economic as possible for the consumer. It could happen that, after the turf had been removed, the bog would become a greater wilderness than it had been before, and would be left in a condition whereby it would be of no national benefit to the country. That could happen when the board had moved from bog to bog, and if it did it would be a national tragedy. I can quite understand why Senators should be concerned to ensure that some direction would be given to the board in the Bill in regard to the cultivation of waste land. I think a responsibility should be placed on the board in regard to that.
I understood from the Minister that he agrees with the amendment in principle but does not want it inserted in its present form in the Bill because what is set out in the amendment would then devolve as a duty on the board. Senator Mrs. Concannon suggests that something might be done in the way of giving power to the board to do what the amendment suggests, but not to impose it as a duty on the board. The board will have a definite duty and responsibility placed on it in regard to the production of turf. I do not think that it would be interfering with the general scheme of the Bill if the Minister were to accept the amendment, because it is not the intention of the House to put such heavy duties on the members of the board as would tend to drive up the cost of turf, and in that way make the activities of the board uneconomic from the point of view of producing turf. That is not the intention of the amendment. If the amendment were accepted, a certain sum of money could be allocated for the reclamation of cutaway bog and accounted for under that heading. I can see, of course, that the primary object of the board will be to develop bogs, to produce turf and to sell it at an economic price. At the same time, I think that some direction should be given to the board under the Bill to ensure that the board will have the power, if not the definite duty, of setting up a special department which will plan for the development of cut-away bog, as well as for the execution of drainage works, the building of roads, and works of that sort.
Senator Kingsmill Moore has referred to what might be done by soil scientists. If there is to be a special department to deal with that work, it might work in conjunction with the department that I suggest for dealing with cutaway bog. I agree with Senator Baxter and Senator O'Dea who urged that this work in regard to land reclamation should have been done from the very beginning. I gathered from what the Minister said that it is only when the board has exhausted an area that it will start its scheme of land reclamation.
I would be inclined to support the amendment moved by Senator Baxter for this reason, that we can carry this idea of the division of labour too far. Many Senators will remember that Adam Smith, in talking about the division of labour, mentioned that the operations in the making of a pin were very numerous. From my observation of the manner in which Departments work, I think that this idea of saying to the Department of Agriculture: "All things concerning land are within your province", and, similarly, saying to another Department: "Your job is so and so", can be carried too far. I think that we should try to arrive at something tending to integrate the activities of Departments rather than separate them into water-tight divisions.
There is one little point that struck me in the course of the discussion, and I wonder if any consideration has been given to it by the Minister or by other members of the House. Let us assume that the turf has been completely removed from the bog and that at that stage another Department, let us say the Department of Agriculture, is asked to reclaim the land and prepare it for the occupation of people. There would, undoubtedly, be advantages from the standpoint of mass production. A certain amount of economy would be effected by doing things on a large scale. Imagine square miles of bog being removed and a reclamation process commenced. The people are set down to occupy the land. It might happen that the fuel which would normally be available for those people would have been completely removed and a big difficulty would arise. If we consider that aspect alone, the idea of proceeding, more or less concurrently, with the removal of the turf and the reclamation of the land has a great deal to recommend it. I can see no difficulty in the Turf Board saying to the Department of Agriculture: "You have a great deal of specialised knowledge in regard to this matter and we want you to send over a number of your men at the first available opportunity to look after the reclamation of the land and prepare it for occupation in the shortest possible time".
I can see no difficulty in that and I can see many advantages in training Departments to co-operate with one another, rather than separate themselves into watertight compartments, as is the tendency at present. Yesterday, when dealing with the Forestry Bill, I drew attention to the fact that there was a research department under the English Department of Forestry and the Minister then in charge said that was work for another Department, although an experienced Department in England found that the Forestry section could undertake that type of work—research work—itself rather than entrust it to a completely separate Department. From my own personal experience of this Departmental idea, I think that one of the tragedies of the day is the want of close cooperation between those Departments. The more Departments co-operate with one another, the better for everyone concerned. There is a great deal to be said for proceeding, more or less concurrently, with reclamation, instead of waiting for a considerable time and then allowing another Department to take the matter in hand.
I think that Senator Mrs. Concannon missed the point regarding the reason for the tabling of this amendment. While I admit that the function of Bórd na Móna is the production of turf, we must not forget that, by the time the bogs are cut away, the responsibility for attending to the cut-away tracts should devolve on somebody. It would be lamentable if, for 25 or 30 years, vast tracts would be left throughout the country without the attention of any Department. I agree with Senator O'Reilly that some co-ordination between the different Departments should be possible so that, when bog would be cut away and the matter would be no longer the responsibility of Bórd na Móna, some Department would see that it would be attended to in the manner suggested by the amendment. It might be possible to reclaim the land for agricultural purposes or it might be more suitable for afforestation. The Departments responsible for those activities should give attention to the cut-away bog when the responsibility of Bórd na Móna ceases.
An Leas-Chathaoirleach
Is the amendment being pressed?
The Minister says that provision is already made in the Bill in this connection.
The only case I am making is that the amendment is not necessary, that power of reclamation is contained in the Bill.
The problem of reclamation will involve considerable expenditure. Is the Minister satisfied that, if the expenditure is very considerable in relation to what is being spent on turf production, his powers are sufficient to justify that expenditure?
I am quite satisfied on that score.
I suggest that some words such as the following be added at the end of paragraph (b) after the word "board""and to leave them as far as possible in a state suitable for cultivation after the removal therefrom of so much turf as is to be used for fuel". That would allay the misgivings of certain members. I do not say that those misgivings are well founded but they are there.
I shall consider the possibility of elaborating the section.
As regards amendment No. 5 (new section), I read the section in the Bill rather hurriedly before putting down this amendment, which is taken from the Electricity Supply Act. I now think that there is no substantial difference between the provisions and I do not move the amendment.
I hope that the Minister proposes to ask the board to give serious attention to the use of cost accounts as an instrument of management and control. That is becoming more and more an established technique. The Minister may have noticed that a section of costs and works accountants has recently been established in Éire. That should emphasise the difference between cost accounting and ordinary financial accounting. The financial accountants claim, I suppose, to be able to do cost accounting and they do it in simple cases but, where it comes to complicated or extensive costings, this specialised knowledge is necessary and should be used. I hope the Minister will impress on the board the importance of using this technique to the utmost extent, not only to get out the total costs of turf-production but the cost of drainage, transportation and many other items which I need not specify now. Although I had nothing about unit costings in the proposed section, I leave it to the board and to the Minister to realise their importance. I was not here for the Minister's speech, concluding the Second Reading of the Bill, when he taunted me with not having read the report. I had not read the report at the time. It seems that the report is not a Parliamentary paper and there is no obligation to lay it on the Table. I could not get a copy in the Library. The Turf Board kindly sent me a copy, but that was after the Second Reading. Honestly, I was not impressed by the report. It is very diffuse, it gives a great many figures and it is lacking in clarity. It is not the sort of report to give to a Parliamentary Assembly so as to afford a clear picture of the whole matter. I hope the Minister will aim, in such reports as he may call for, at getting conciseness and clarity and eliminating a lot of figures and other stuff which may be necessary to the board but is only confusing to members of the public and of the Oireachtas. The salient points should be brought out clearly and all this elaboration kept in the archives of the board itself.
The Senator has left me in two minds as to what he wants. He wants a very full report without details, if I have understood him properly. So far as I can make out, the only complaint he has against the type of report now made available by the board is that it gives too much detailed information.
Too much detail.
I can hardly agree with that. It gives a great deal of information but I do not think that it gives too much detail. I think if less information was given that there would be more reasonable ground for complaint from members of the Seanad. I can inform the Senator that the Turf Development Board has a most up-to-date and efficient system of costing. Without that system it could not have produced this report. I think this report, which gives complete details of the costs of operation on each one of the board's works and enables a full comparison to be made between the various costs on one bog as against another furnishes the House with the material required to enable them to understand precisely whether the board is working efficiently and will enable them to know the way things are going with the board. I think that, so long as the board finds it possible to produce for each one scheme with which it deals, a report as satisfactory as this the Seanad will have little cause for complaining that they are not getting adequate information.
I do not want to hold up the debate but I do not agree with the Minister. I think that the report is certainly full but, to my mind, it is not clear. It is diffuse and is not the sort of document you want to lay before a Parliamentary Assembly. It must be very much condensed. There is a lot of rigmarole and three or four pages of an auditor's report on one bog. Commercial people do not get an auditor's report of that very verbose character which repeats figures that have already been set out in the balance sheet and in the profit and loss account. There is no use in pursuing this, however. The Minister is satisfied with the report and I do not agree with him. No doubt he will think the matter over, and if he does not think fit he will not make any change. I am not satisfied with this report in its present form.
I would like to ask a general question in regard to Section 20. I take it that this Turf Board is to be a body corporate, that it will not be established under the Companies Acts but that it will be a statutory body corporate under this Act. If so it seems to me there ought to be some general governing power, which would really be the first article on the memorandum if it were a private company, and to which all the other powers would be subsidiary.
As the Bill stands at the moment, the board could start a tobacconist's shop without the consent of the Minister. That would not be possible under the ordinary Companies Acts because the general governing power would be to produce turf and there would be subsidiary powers to open shops and other things. But the opening of shops would be subsidiary to the general power and there seems to me to be something lacking in the power as it is given here to the board. I think the Minister ought to look into it because obviously the powers given here in relation to manufacturing plants could include aeroplanes. I know they have to get the Minister's consent for any kind of manufacturing plant but it should be made clear that these matters are necessary for the development of turf. I think this section requires to have certain general powers governing it, and I cannot find those powers anywhere in the Act. I am assuming, if this is a corporate body, that this Act will be its memorandum and its articles of association.
I had a note to make this point, too. Although we have not been initiating legislation, if we condone this without question it will be held against us later. There is a need in relation to all of these State or semi-State companies that powers would not be given without the limiting clause suggested by Senator Douglas.
Section 20 gives the power to establish shops and showrooms. They are not even defined and the board can apparently open any form of shop in competition with people who, as ratepayers, have to subsidise the scheme. I trust that the Minister will take the criticism in the friendly manner in which it is offered but I feel, in the interests of the industrial community generally, that there must be a governing clause in this Bill which will prevent any abuse of powers such as described in Section 20.
Is not the Clause there? Does not it say that for the purpose of the exercise of its functions the board may do any of these things but it can not do them except they arise in the performance of its functions.
I cannot find "duties"; only "functions".
Under sub-section (2) "functions" mean "duties".
Then it is narrower than I expected. If it means that "functions" mean "duties" it can only be read in relation to amendment No. 17.
That does not mean that it can only operate shops for the sale of turf. It could conceivably operate a store in connection with a turf camp, but it would have to be related to its duties.
And limited to the occupants of the camp—not to enter into competition.
Supposing a member of the Oireachtas happened to go down there and was looking for cigarettes?
Why confine your query to a member of the Oireachtas?
I move amendment No. 6:—
In sub-section (2), to add at the end of the sub-section the words "and of the Minister for Local Government and Public Health".
This amendment is in Senator Sweetman's name, but he has had to go out temporarily and has asked me to move it for him. It seeks to add the name of the Minister for Local Government and Public Health. The section deals with interference with public roads and waterways. Senator Sweetman's point, which I support, is that where roads will be interfered with the board shall not exercise any of its functions under this section except with the consent of the Minister for Industry and Commerce and the Minister for Local Government and Public Health. Suppose you are going to interfere with a road, surely the appropriate Minister to give his consent in that case should be the Minister for Local Government. Senator Sweetman's amendment wishes to secure it would be essential to that sub-section to get the consent of the Minister for Local Government and Public Health.
So far as the Minister for Local Government is concerned he is satisfied with the section as it is and I think it is sufficient to provide that the consent of the Minister who is directly responsible for the administration of the Bill should be secured. In the ordinary course of administrative practice the Minister would consult with the Minister for Local Government when a matter affecting his Department was likely to arise.
Section 23 provides that where the execution of works involves the closing of a road or bridge to traffic the board will maintain a temporary road or bridge sufficient to carry the traffic or appoint, with the consent of the Minister for Local Government, an alternative road to be used while such road or bridge is closed. Further, the board on or before the completion of the work can do certain things with the consent of the Minister for Local Government in relation to the reconstruction, widening or otherwise of a road or bridge. In these matters it is clear that the administration of the Department of Local Government is very directly concerned and consequently the consent of the Minister is concerned. But in exercise of the powers under Section 22 public interest, in so far as it requires protection by the giving or the withholding of Ministerial consent, is safeguarded by sub-section (2), it being understood that in the normal course the Minister for Industry and Commerce will not make a decision which the Minister for Local Government would object to without consulting with that Minister. I think, however, it would involve a great deal of delay and it would be unwise to put there a statutory obligation to secure the consent of the Minister for Local Government in every case.
An Leas-Chathaoirleach
Amendments Nos. 7, 8, 9, 10, 11 and 12 deal with the same thing.
Not quite. I do not propose to move No. 7, if the Minister is moving, through Senator Quirke, amendment No. 8. I am perfectly content with it, it covers the same ground and I think it covers it better.
I move amendment No. 8, which is in Senator Quirke's name:—
In sub-section (4), to delete lines 8, 9 and 10 in page 9, and substitute the following:—
"suffered or likely to be suffered by the canal undertaker by reason of the fact that traffic which would otherwise be carried by the canal undertaker by means of the inland waterway is thereafter carried or is likely to be carried over the bridge."
I discussed this on the Second Reading and I indicated my intention of bringing forward the amendment.
I move amendments Nos. 9, 10, 11 and 12 which I think may be taken together:—
In sub-section (4), sub-paragraph (b) to delete the word "may" in line 11, page 9, and to insert instead the words "after consultation with the undertaker of any inland waterway over which such bridge has been constructed shall".
In sub-section (4), paragraph (c), after the word "sustained" in line 15, to insert the words "loss or".
In sub-section (4), paragraph (c), after the word "bridge" in line 16, to insert the words "other than such loss as is mentioned in paragraph (a) of this sub-section".
In sub-section (4), paragraph (c), after the word "to" in line 17, to insert the words "make such compensation for such loss as may be fixed by the Minister and to".
The object of amendment No. 9 is to protect the interests of inland waterways which the Bill distinctly contemplates are going to be affected. If the House can deduce from the wording of the Bill that the interests of the inland waterways are going to be affected adversely, I suggest that it is the business of this House to see that there is inserted a provision that the Minister shall look after their interests. I am sorry that I shall have to occupy the time of the House on this amendment because if the practice had been adopted here which other Ministries have adopted up to this it would not be necessary, I think, to have any discussion. In other cases recently I found where it was desirable to have an amendment that a half-hour's discussion with the officials concerned cleared up any misunderstandings and often resulted in the officials being so impressed with the need for the amendment that they asked to be allowed to introduce it as a Government amendment. Unfortunately, for reasons which may be adequate but which are not clear to me, the officials of the Minister refused to meet for a very informal discussion on the reasons for this amendment. They were kind enough to send me a confidential memorandum to which I will not refer but which dealt with certain aspects of constitutional procedure in this country in a way which does not appeal to me.
It is contemplated in this Bill that bridges can be put over inland waterways. I am informed that three such bridges are contemplated but my information on that point is not official. It is contemplated that these shall be movable bridges. They will not be flyover bridges in which it would only be necessary to see that there would be adequate tow-path left, but bridges which in one of their positions would constitute an impediment to people operating traffic on the inland waterways. Obviously there will be a conflict of interest between traffic on the inland waterway which desires to pass along when the bridge is up and people who want to operate along the bridge itself when it is down. Canal barges have no brakes and they can only be brought to a standstill by exhausting their impetus, and they cannot get under way very quickly through the propeller-slip which is involved in starting. It would be desirable that the bridge would be so operated that it is lifted when the barge is still some little distance away so that a way is left clear. Canal barges operate by day and night, and if these bridges were to be left down at night and with no method of seeing that they were operated an oncoming barge would probably stub its nose against the bridge with consequent injury. There will, therefore, be a conflict of interests which need not necessarily be violent and which, I should imagine, should easily be resolved between those operating the inland waterways and those operating the bridge in the interests of the road or railway over it and of the road and rail vehicles which will be using it.
You must remember that a canal is a public highway, and once you find that a Bill contemplates obstruction of a public highway, then the business of the Legislature is to see that some measures are taken to minimise that obstruction. I understand that in certain quarters the attitude is taken up that there is no power to do this and that certainly it is not the business of the Oireachtas to require the Minister to do anything about it. I am not going to indulge in shadow-boxing on a constitutional issue now but it is perfectly clear that it is the duty of this House, if it finds that some interests are being adversely affected by a Bill, to require the Minister to do the reasonable thing to protect that interest. It is our business to see that the persons responsible for protecting the interests which are conflicting with the interests of the board will be able to put before the Minister their point of view, and to see that the Minister takes steps for the proper protection of those interests.
I ask the House to adopt this amendment. It will provide that in respect of these bridges which the Bill anticipates are going to interfere with the passage of barges, the Minister shall make regulations for minimising that inconvenience and for resolving the difficulties, and that he shall do so after consultation with the responsible authorities for the inland waterways who are affected. I do not understand the objection to consideration of this amendment. Nobody can say there is an objection to the Minister being asked to make proper provisions for protection and to do so after ascertaining the facts from the people who know the facts, facts which I fear the Minister has entirely failed to appreciate.
Let me make it clear that the Bill as drafted provides that the Minister shall make regulations as to the user of any bridge that may be constructed over an inland waterway.
May make, not shall make.
The intention is that, if a movable bridge is constructed, there shall be regulations as to its use, regulations with which the board shall comply. I am informed that it is the normal practice, in drafting measures of this kind, to use the word "may" instead of "shall" and that "may" in fact means "shall," with this difference, that if the word "shall" is used, other qualifying phrases must also appear. I am not in a position to discuss that purely technical point, but the normal practice in all legislation framed here is to use the word "may" in a case of this kind. If it is intended —and I think there are legal decisions covering it—that the Minister should have discretion as to whether he will make regulations or not, then the words "at his discretion" would appear in the measure. I think it has been held in court that, if the words "at his discretion" do not appear, he has, in fact, no such discretion.
In regard to the matter which mainly arises here, it is intended that, if there is a movable bridge erected, there shall be regulations made by the Minister. The main consideration is whether he should make the regulations after consultation with the canal company. Again, it can be assumed that such consultation will take place, but the issue is whether there should be a statutory obligation to undertake such consultations and, if so, what "statutory consultation" means. In what manner could it be contended that the regulations were invalid, because the consultations were not as adequate or as complete or did not extend over the period of time which other people would have regarded as reasonable? I think it would be unwise and dangerous to provide a statutory obligation to consult. The obligation is on the Minister, whose job it is to ensure that the interests of the operators of the inland waterway and the interests of the board or the other people using the waterway will be fully met by the regulations. Undoubtedly, in making such regulations, the Minister will consult with everybody whose interests are affected, including the board, other people who are users of the bridge, the users of the canal, whether it is the canal company themselves as operators of canal boats or other persons who operate boats on the canal and he will then make the regulations which appear to him to be fair to all classes.
I think the section as it stands is quite adequate. It ensures that, where there is a movable bridge, there will be regulations, that they will be made by the Minister for Industry and Commerce, who naturally and inevitably must have regard to all the interests concerned and who certainly will seek the views of all interested parties. I think it would be unwise to leave the sub-section in the manner suggested in the amendment, either by substituting "shall" for "may", as there are certain legal objections to the use of the word "shall" without certain qualifying phrases; or by putting upon the Minister a statutory obligation to consult before making the regulations, without having a far more elaborate definition—which would appear to be necessary—of what constitutes consultation for that purpose.
In view of what the Minister has said, now that it is on record, I do not propose to press this amendment. If I may say so, that is not the way it was expressed to me; but I am perfectly content with the Minister's point of view. I am not going to discuss the niceties of when "may" means "shall". However, I do not want to be taken, in withdrawing this amendment, as agreeing with him. I do not agree that, in the drafting, it was necessary to use "may" and not "shall".
I can assure the Senator that there will be regulations and that there will be consultations beforehand.
Amendments Nos. 10, 11 and 12 take up a slightly different subject. Apparently, it is contemplated in the Bill that, by reason of the existence or user of the bridge or bridges, the inland waterway may sustain damage. That means physical damage—a slip of the banks, the loss of water, or something like that and it is provided that the Minister can require the board to make good the damage, in other words, to build up the slip or stop the hole. However, there is no provision here and, subject to what the Minister may say, I doubt if there is provision anywhere else in the Bill, for compensating the board not merely by having the physical damage made good but by giving a lump sum in respect of the loss they may have suffered by reason of that physical damage.
The intricacies of bog engineering are rather considerable and it is difficult to anticipate exactly what is going to happen. Many years ago, when I happened, for purely private purposes, to be investigating the water supply of a well-known Connemara salmon and white trout stream, I walked every foot of it from mouth to source and I walked nearly every bit of the watershed; and even then I was unable to account for certain variations in the water supply. I had investigations made into the water contents of the bog, both in wet seasons and in dry seasons, to try to account for the loss of moisture. It has been found that a wet bog which has at least 90 per cent. moisture may lose half of it in the course of a dry season and yet have 80 per cent. moisture.
That sounds mathematically incorrect, but it is still perfectly true. Now if you drain away the water in certain circumstances, you may interfere with the stability of the bog. Similarly, if you do not drain it away, the same thing may happen. Even the engineers of the various inland waterways who are experts on the subject have been very much troubled by slips of banks, so much so that they have found it necessary to acquire land on each side of the line of canal in order to provide proper lateral support for the canal. I anticipate that, in the course of erection of bridges and other activities, more especially the drainage which will be undertaken by Bórd na Móna, injury will be done to the canal of such a nature as to involve it, not merely in physical damage but in other commercial losses.
The object of these amendments is to ensure that, in addition to the damage which the Minister can direct to be put right, if there is a loss not falling under other sections of the Bill he can look after that also. He may reply that this loss will be covered by Sections 29 and 32. I do not want to indulge in too positive a contradiction, but Section 29 in Part III comes first of all. The board has certain powers to acquire either by agreement or compulsorily any easement way leaves, water rights, or other rights and also to interfere with any canal or artificial waterway. The section with which we are dealing is a self-contained section with its own provision for interference, its own provision for the erection of works and apparently its own provision for reparations. Section 29 is a general section in Part III and Section 32(1) only allows any compensation in respect of what is being done "under this part", that is to say, under Section 29. The first sub-section clearly would not apply to anything done under Section 22.
The second sub-section deals not only with what has been done in Part III but what has been done in the way of interference under the Act as a whole. There is a distinction between the two sub-sections in that respect—"or in respect of any land or water or the diversion, closing, removal or other interference, whether permanent or temporary by the board under this Act, of or with any private road, way, or bridge or any canal". If the Minister tells me that any loss which is suffered under Section 22 will be treated as a matter of assessment, price or compensation by Section 32, I shall be satisfied.
It would I think be satisfactory if the Minister could accept some further amendments which I have afterwards in respect to losses which do not appear either previously or afterwards. In so far as Section 22 appears to be a little code of its own dealing with the bridge, I think it would be more satisfactory if provision were made for compensation for losses as well as for damages. I have difficulty in dealing with this because this amendment is considerably interlocked with some later amendments, but if the Minister would like to leave the matter over for the Report Stage so that he might have an opportunity of reconsidering it, I would not press the amendment at this stage. I think there is a question as to whether it would be covered.
What is the question? As I understand it, if a waterway sustains damage by reason of the existence or the user of the bridge, the Minister requires the board to make good that damage at their own expense. If there is a loss, presumably it comes under Section 32. If it comes under Section 32, then there is provision for compensation by the board in accordance with the provisions of that section. If it does not come under Section 32, there is recourse to the courts and it seems to me that the only effect of the Senator's amendment is to put on the Minister, not the courts, the obligation to decide the amount of compensation adequate for the loss.
That is not the point. The whole position in regard to the carrying out of statutory powers is this. First of all they must be carried out bona fide and, secondly, they must be carried out reasonably. Supposing they are carried out bona fide and reasonably and without negligence, I do not think that there would be any action at all in the courts unless possibly for the deprivation of easement of a lateral support. Supposing that a bridge is put up, quite frankly without negligence, that it is put up bona fide and reasonably, I am informed rightly or wrongly that when you are dealing with a support like a bog, that perhaps 18 months afterwards you might have an injury to a canal. You provide that those injuries will be made right, but I do not see any provision whereby they can be obliged to pay any form of compensation in respect of loss of traffic or other monetary loss, on the canal, because they have not done the work negligently and they have done it bona fide.
I do not know what the courts regard as negligence. If the board put a bridge over the canal and, as a result, 18 months later all the water runs out of the canal, I imagine that an action for negligence could be sustained.
The canal companies are not likely to be intentionally negligent in their own canals. That is why I think that if this matter had been discussed for 20 minutes over a table, we might see whether there were not one or two loopholes that could be covered. I am anxious not to produce anything unreasonable, but I want to cover cases which can happen.
All these provisions were fully discussed with the representatives of the canal company. It may be perhaps that there would be recourse to the courts. I think recourse to the courts would have to be on the grounds of negligence or some such ground. For example if the water left the canal, and damaged the property of some person adjacent to the canal, I presume that person would have some redress from the company. In this case, if as a result of the construction of a bridge, there is a loss to the canal, presumably there is some defect in the bridge and that would be a ground for a claim. I am advised, apart from the obligation to make good any defects, there is a possibility that a claim would arise under Section 32, in which case compensation would be paid. If it does not arise there, then there would be recourse to the courts.
I am not quite clear and that is why I am suggesting that it is not a matter that can be suitably discussed in this way. The courts will not interfere with the exercise of compulsory powers which are given by statute. I shall give the Minister an example which will occur in connection with later amendments. The board have power to acquire land. They may acquire land quite close to the Grand Canal for the purpose of draining it and using it for turf production. If they only acquire and drain that land and so produce a low-water table affecting the support near the canal and a slip occurred afterwards they would be liable at common law, because they merely acquire the land and they have not the right to take away a lateral support.
Let us suppose that they acquire land near the Grand Canal. They can utilise that land, but they cannot so utilise it as to interfere with the lateral support which that land gives to the line of the canal. They might also, under the powers of the Bill, acquire the right to interfere with the easement of a lateral support by draining the land they have acquired or by cutting it away and, in that case, you might get a bad slip on the canal bank, months or years after they had carried out the work. That is a matter which I do not think has occurred to the advisers of the Minister. It is one of the matters that is going to arise on another amendment. That is why I say I would be quite willing to withdraw these amendments with a view to discussing them with the engineers of the Minister and the engineers, shall we say, of the Grand Canal Company to see if my anticipations are fanciful or real. These amendments I have put down were not drawn up by nor were they submitted to either canal company. They were drawn up on my own investigation and I would have liked to have the opportunity of ascertaining whether I was completely under a misapprehension on the engineering side, or whether the Minister's advisers might not be quite clear on the law. I should be quite willing to withdraw the amendments if the Minister would look into them before the Report Stage.
Certainly, I shall do that.
I move amendment No. 13:—
In sub-section (1), page 9, to delete paragraph (c).
Paragraph (c) reads as follows:—
"where the board constructs a permanent road and such road is, in the opinion of the Minister for Local Government and Public Health, substantially an improvement of a preexisting road, such local authority or local authorities as the said Minister shall direct shall bear and pay to the board such portion of the cost of the construction of such road and (in the case of two or more such authorities) in such proportions as the said Minister shall direct."
I think that paragraph is eminently unsatisfactory from the point of view of local authorities. It is an imposition which Bórd na Móna cannot justifiably ask local authorities to bear. After all, turf development presupposes the necessity for the construction of roads and bridges so that the board may discharge the duties imposed upon it. I do not think there is any obligation on the ratepayers of a county to bear a portion of the cost of turf development in this particular way. If you have roads or bridges—especially roads with which we are dealing at the moment— that are adequate to carry the traffic that is passing over them, in so far as the local authority has responsibility to the people who elected it to provide them with roads suitable for their needs, I think that is all that the ratepayers can be expected to contribute towards the maintenance and provision of roads. If, in the development of the schemes under the control of Bórd na Móna, it is found necessary to widen, improve or build roads, or to make an addition to existing roads in order to make them suitable for the board's purposes, I confess that I do not think the local ratepayers ought to be asked to subscribe to the cost of a new effort such as that. The Oireachtas, since it decided to have the bogs of the country developed, is providing the board with the necessary capital to do that work. Out of that capital, money should be provided to enable new roads to be constructed or additions made to existing roads in the way of widening or whatever else is necessary for the purposes of the turf development scheme. Local authorities will justifiably object to this proposal. It will be a rather unpleasant decision to make to compel local authorities to bear a proportion of the expense involved in the improvement, reconstruction or widening of a road. It is a principle to which representatives of local authorities can hardly be asked to subscribe. They have roads suitable and adequate to their requirements. If it is necessary to do something more, that will be occasioned by the turf development scheme.
That scheme should bear the cost and it should not be passed on to the ratepayers who, as regards services generally, are being asked to bear burdens which are really beyond their capacity. Every one of our county councils have had to make demands on the ratepayers this year the like of which they never had to make before. In my own county, the rates have gone up from 13/4 to 16/8. The principle embodied in this proposal is unjust to the ratepayer. The counties adjoining bogs are more concerned with this provision than other counties. I cannot say that my county will be affected but the provision will not make the turf development scheme more popular. The principle, as well as the cost involved, will make the ratepayers angry. They are being asked to do something which they ought not be asked to do. I hope the House will accept the amendment.
Senator Baxter had put down his amendment before I sub- mitted any amendments. I had the intention of doing what he did and I support him emphatically. This provision will affect Kildare County Council very seriously. Quite apart from any particular instance, there are two reasons why I object to this section and the subsequent section about bridges. The first reason has been dealt with by Senator Baxter. The second reason is that I object to a county council being asked to pay for something in the construction of which it was given no consideration. If the Minister for Industry and Commerce and the Turf Board wish the local authority to bear a proportion of the cost of a road, then it appears to me that, before the road is constructed and the bridge erected, there should be consultation between the Turf Board and the local authority concerned. This is merely going to arise in an ex post facto way. After the road has been made, the Minister for Local Government and Public Health is to determine the question of levy. The people who are ratepayers are not being given any opportunity, before the road is constructed, to suggest that, if it were carried out in a way different from that proposed, it would be better for the local authority and they would be prepared to contribute. The board's powers are being given in a way which shows clearly that it is the board and nothing else that is being considered.
I have not the slightest doubt but that new roads will be constructed. When a new road has been constructed, there will be agitation—if I can use that word in connection with Bórd na Móna—by the board to have it taken over by the local authority. Those Senators who are members of local authorities will agree with me when I say that one of their great difficulties is the number of applications being made to have roads taken over, with the resultant increase in the maintenance charges each year. I seriously ask the Minister to alter the framework of this section in such a way that he will not ask the local authority to pay for a thing in the construction of which they had no say whatever. If anything is to be done by the board which will really be of benefit to the local authority, the local authority should be taken into prior consultation. The Minister has not considered the other angle. Suppose I put down an amendment suggesting that the Turf Board should contribute to the cost which Kildare County Council will be at as a result of the extra traffic passing over the road which we travelled the other day from Allenwood to Dublin. The amount of traffic over that road, as a result of the board's activities, will be very substantial. The Minister would take the strongest objection to such a course but I suggest that the Minister's objection to that would be just as logical as my objection to the sub-section as it stands.
This section is taken from the Electricity Supply Act. I think that similar sections have appeared in other legislation where the temporary closing of roads and bridges during the construction of works was necessary. I cannot at the moment conceive any circumstances under which the board would resort to the powers given by this section. The only experience we have had of the use of these powers has been in the construction of hydro-electric works by the Electricity Supply Board. In practice, what happened in the construction of the hydro-electric works and the alteration of the roads and bridges was: the officials of the board and of the local authority together with the Department of Local Government got together and prepared a plan, taking advantage of the construction of the works, to improve the roads and bridges in the locality. Usually, there was agreement as to the extent to which improvements were to be carried out and how the cost of the improvements was to be divided between the Electricity Supply Board and the local authority.
Let us be clear as to what will happen here. Because of the construction of works, a road or bridge is temporarily closed. What the section provides is that, when the works are completed, the board may do one of three things: (1) restore the road or bridge which was closed; (2) after consultation with the Minister for Local Government, whose interest in this matter is the interest of the local authority——
We shall be discussing that on the Local Government Bill, so we shall not interrupt you.
As between the Turf Development Board and the local authority, the Minister for Local Government will be on the side of the local authority.
He ought to be.
Let me mention the three alternatives again: (1) the board may restore the road or bridge which was closed; (2) after consultation with the Minister for Local Government, they may construct a new road or a new bridge. That consultation will be, in fact, a full review of the need in the area of improved roads or bridges and, at that stage, there would be general understanding and agreement as to the extent to which a new road or bridge was required and should be constructed by the board and how the expenditure should be divided between the board and the local authority; (3) with the consent of the Minister for Local Government, they may, instead of restoring the closed road or bridge, improve or strengthen an alternative road or bridge in the locality. Where the second alternative is resorted to— where, after consultation with the Minister for Local Government, it is decided to construct a new road or bridge instead of restoring an old road or an old bridge, this section provides that, to the extent the Minister for Local Government may determine, the cost of the improved road or bridge will be borne by the local authority. In most of the cases that have arisen, the local authority desired to have the road improved and, if you delete the section, you will force the Turf Development Board, just as the Electricity Supply Board would have been forced in a similar case, to avoid any extra cost in the construction of a better road or a better bridge and compel them to resort to the first alternative, if practicable—that is, to restore the old road or the old bridge, even if the local authority want to improve it. They could say: "Our obligation is fully discharged by restoring the old road or the old bridge and, if you want it improved, you must improve it at your own expense."
This device permits the local authority to share the expense of the new road or bridge with the Turf Development Board. It would be unreasonable to expect the Turf Development Board to provide a new road or a new bridge, better than the old road or the old bridge, if they have the alternative of restoring the old road or the old bridge and avoid the expense of improving the public services. It would be undesirable to prevent the local authority from making such an arrangement as they consider is in their interest in this connection.
The Minister has drawn an analogy between this case and what happened in the case of the Electricity Supply Board and the local authorities. I do not see any analogy. In what way were the Electricity Supply Board going to use roads or bridges as Bórd na Móna will use them?
I said that this section was framed in relation to the requirements of the Electricity Supply Board. It has been taken completely from the Electricity Supply Acts. It was far more likely that the Electricity Supply Board, in the construction of hydroelectric works, would interfere with roads and bridges than it is that the Turf Development Board will interfere with them. The Electricity Supply Board had to flood areas, submerge roads, build canals, remove bridges and construct new roads and bridges to replace them. It is not likely that the Turf Development Board will have to undertake constructional works of such dimensions. I took this section completely out of the Electricity Supply Act, recognising that it was framed in relation to the requirements of the Electricity Supply Board and that it would not be fully necessary in the case of the Turf Development Board. But the principle is the same.
I recognise that the section is one which we debated here on a previous occasion. The Minister is anxious to assure us that there were greater probabilities of this section being utilised under the Electricity Supply Acts than there are under this Bill. It strikes me that the probabilities are greater under the Bórd na Móna undertaking. Arising out of all the transport of fuel that has to be undertaken, it is more likely——
May I interrupt the Senator? That is not the case contemplated here. What is contemplated is that, because of construction works, a road or bridge will have to be closed. Something will have to be done on that account. That is the only case contemplated here. Constructional works are being carried out. A road or bridge is closed during the progress of these works. When they are finished, various alternative courses are open to the board—to restore the old road or bridge, to construct a new road or bridge better than the old one, to provide an alternative route or another road adequate to take the additional traffic that will pass over it. This section will not operate except where a road or bridge is temporarily closed because of the carrying on of constructional work.
May I refer to the clause —"Where the board constructs a permanent road and such road is, in the opinion of the Minister for Local Government and Public Health, substantially an improvement of a pre-existing road...."
You have got to relate that back to paragraph (b) sub-paragraph (ii) immediately above it.
Would the Minister enlighten us further? The interpretation I put on that is that the board will construct a permanent road. One cannot read anything else into it.
The board is authorised to undertake certain works. Where the execution of such works involves the closing of a road or bridge, then paragraph (a) provides for the temporary period during which the constructional works are in progress. Paragraph (b) deals with the circumstances when the constructional works are finished. On or before the completion of the execution of such works, the board shall do one of the following three things— restore the road or bridge temporarily closed, construct a new road or a new bridge better than the original, or divert the traffic by the process of developing an alternative route. If they adopt the second course and construct a new permanent road or a new permanent bridge, after consultation with the Minister for Local Government, then there can be, at the discretion of the Minister for Local Government, a levy on the local authority.
I may be very dense but it seems to me that the position is different.
The board cannot just take it into its own head to build a new road or a new bridge and say to the county council: "We will make you pay for it."
Is it not quite clear that Sections 22 and 23 must be read together? This section only arises where the board, for the purpose of its own works, interferes with an existing road by closing it, diverting it or removing it. Where it closes a road, it has the alternative of restoring it or making a new road or improving an alternative road. The sub-section which Senator Baxter wishes to delete deals with the permanent road which the board, after consultation with the Minister for Local Government, construct—the new permanent road. Before the board constructs that road at all, it must have a consultation with the Minister for Local Government. I am sure the Minister for Local Government will have consultation with the local authority because, under Section 22, before the board can interfere with any existing road, they must give notice under sub-section (3). I think the matter is too clear to require exposition. I have been listening to the Minister explaining the matter to Senator Baxter. I had read the section beforehand and everything the Minister said is in the section.
In that case, as Senator Ryan says it is clearly understood, perhaps he could explain the problem in my mind, as the Minister has not dealt with it. I see down on the bog at present a small county by-road, perfectly adequate for existing traffic but which is so small that it would not be adequate for Bórd na Móna and so small that it is not practicable to do anything to that road unless you stop traffic on it while you are doing it. On the ordinary country by-road, you cannot act as on a wide main road and divide it into two, letting the traffic use one side while you are working on the other. I have in mind a small by-road, perfectly adequate for the small county traffic but that cannot be improved except by the whole road being closed. It appears to me that, under these two sections and particularly in this clause, that county road is improved——
But not by the board.
The board are taking power to improve it here.
It is the local authority, presumably, that will do the work.
I think not.
Would the Minister explain the meaning of these words? I have been trying to read this in relation to what has gone before, but still cannot follow it, in spite of what Senator Michael Ryan has tried to clear up for us. To start with, Section 23 (1) says:—
"Where the board is empowered by this Act to close, divert, remove or otherwise interfere with a public road or bridge for the purpose of the execution of any work or otherwise under this Act, the following provisions shall have effect, that is to say:—
(c) where the board constructs a permanent road and such road is, in the opinion of the Minister for Local Government and Public Health, substantially an improvement of a pre-existing road, such local authority or local authorities as the said Minister shall direct shall bear and pay to the board such portion of the cost of the construction of such road and (in the case of two or more such authorities) in such proportions as the said Minister shall direct;"
Now, there is a road which the board is going to construct into a permanent road and it is going to be substantially an improvement of a pre-existing road. A pre-existing road might mean a county road—presumably it would—or it might even be a main road. When that has been done, if in the opinion of the Minister for Local Government there was an improvement in that road then the Minister for Local Government could say to the particular local authority, within whose domain that road was, how much of the cost of the improvement they were to bear. That is what I am taking exception to: you have that county road there and it is adequate to the needs of the local people, but it is essential to have that road improved for the board.
That is what the Senator misunderstands. It is not for the purpose of the board. It says: "Where the board is empowered by this Act to close a road." That brings us back to Section 22, where the board is empowered to do certain works. If the works involve interference with the road, it informs the local authority and then proceeds with the works. While the works are proceeding, it must maintain an alternative road, under paragraph (a) of Section 23. When the works are finished, it has three courses open to follow. It may restore the road to the condition it was in, that is, open it again, or may consult with the Minister for Local Government, whose interests are the interests of the local authority, which has already been informed, under Section 22, of the interference with the road. After consultation with the Minister for Local Government, it can decide, instead of restoring the road, to construct a new road—or bridge, as the case may be—in place of the one that was there before. In consultation, the Minister for Local Government may say: "Certainly, you may do so, but I decide that you are going to pay the whole cost." It may be such an improvement that the Minister does not think the local authority of the area should bear any part of the cost, but if he thinks it is of a type which will improve the facilities of the area and the improvement is of such a character that it is reasonable to ask the local ratepayers to pay part of the cost, he can decide what part they will bear. That is what (c) provides. It provides that where, under (b) (ii), it has been decided, in consultation with the Minister for Local Government, to construct a new road, the Minister for Local Government will decide, and nobody else, what proportion of the cost will be borne by the local authority.
Does the Minister suggest that (c) only refers to paragraph (b) (ii)?
Yes.
Surely, the construction of the road must also include the reconstruction, on a proper basis, of a small county road into a main road; or is it the Minister's point that this deals purely with improvement and not construction?
It will come into the picture, because incidentally it has to be closed during construction of the works under Section 22. It is not constructed by the board for the purpose of facilitating transport.
I appreciate that.
But for the purpose of enabling the board——
To carry out whatever works are necessary. The difficulty is that this has not happened in relation to the Turf Board, but has happened in relation to the Electricity Supply Board. As an illustration, when they built the head-race canal at the Shannon, there were bridges that had to be removed and roads that had to be diverted and new bridges were built and new roads constructed. Naturally, the new bridges and roads were better, wider and stronger than the old ones. It was decided, under a similar section, that the Clare County Council or other authority concerned should contribute part of the cost of the new bridges and roads. In that case, the old roads were removed completely and new ones were provided. One can easily contemplate circumstances where a road may merely be closed until the works have been completed and can be restored and reopened in its original condition. Instead of doing that, if opportunity is taken of the fact that some work is being done on the road, to improve the road generally, then it is reasonable to say that, as there is an improvement, it is equitable, to the extent the Minister for Local Government may think so, that there should be a contribution by the local authority.
I know a particular road in Kildare that is perfectly adequate for existing traffic, but that will unquestionably not be adequate if the whole output of the shean bog is going to come out that way. I am also equally satisfied, from my knowledge of that road, that it could not be improved or reconstructed. The only solution, if it is to carry all the traffic from that bog, would be to rip up the existing road and re-lay a completely new one. In order that the board may carry out the turf, it would require a completely new road and they will have to close the existing one in order to do that. The existing one is good enough for us at present, and what is worrying me is that, when it has to be ripped up and completely re-laid, and during the process that road will be closed, are we in Kildare going to be made pay for the new road?
That is not the way the board will proceed. If there is a road at some of their works which is inadequate for the traffic they are going to send over it, they will go to the county council engineer and tell him so, saying: "If you like, we will join you in a deputation to the Minister for Local Government to get a grant out of the Road Fund." It is the local authority, however, which will build the road and not the Turf Board. If in the circumstances contemplated here, a road is temporarily closed while works are in construction and the Minister for Local Government decides that the old road there was sufficient for local needs he may decide no contribution is required from the local authority. It is only where the Minister for Local Government decides that the old road is insufficient for local needs that he will intimate his willingness to fix the contribution to be paid by the local authority.
What is the objection in allowing the local authority to make the decision? I am not at all satisfied that the Minister for Local Government is a guardian of the welfare of local authorities. I think he is a very poor guardian of the interests of the local ratepayers. As far as I see it he can very well decide that it is desirable that the road should be improved at the expense of the local ratepayers while from the point of view of the local ratepayers the improvement is unnecessary. Undoubtedly, the locality may be served by a better road, but I do not think that it is fair to saddle the ratepayers with the costs of improvement where these improvements are not necessary.
There is, of course, the question of what constitutes the best interests of the local ratepayers.
With your permission, Sir, I will withdraw these two amendments and I hope the Minister will look into the matter again.
Certainly.
I move amendment No. 15:
In sub-section (1), after the word "shall" in line 2, page 11, to insert the words "after notifying the owner".
The section provides that the board and their officers and servants and other persons authorised by the board in their behalf shall be entitled to enter on any land for the purpose of doing thereon or on any other land all or any of the things which the board is authorised by this Act to do or making any inquiry, investigation or examination preliminary to the doing of any such thing. Perhaps the Minister for Industry and Commerce will see that although it is not actually stipulated in another Bill, it has been the custom, I think—and the obligation ought to be on the board—to notify any farmer in advance on whose land the agent or employees of the board are going to trespass.
The Senator appreciates the practical difficulty of finding out who the owner is. That is often a matter which takes years of research.
No, Sir, I do not know. It is important when you are dealing with people in the country to try to understand their psychology and how conservative and annoyed they are when strangers come into their places and they do not know what they are doing. Surely it will be possible for these people to notify the occupier?
The only purpose in this is entry for the purpose of survey. Presumably, if any damage was done to the property, an action would lie for compensation. You can imagine a board's engineer surveying land in the vicinity of a bog which it is intended to develop. He merely walks over the land to take levels or to inspect the land. If he had to notify every person who is an owner or occupier of land in the area to be surveyed, then to make it a legal obligation on him to serve notice before he could survey the land would obviously lead to difficulty and delay.
An inspector of the board is, I think, every bit as susceptible about the feelings of local residents as Senator Baxter. He will be the object of the dog, if the dog is let loose on him, and, therefore, it may be taken that he will use every precaution to get the consent of the people concerned before he goes on the land.
I think the Minister has gone too far. After all there is nothing in this amendment to say he has got to get statutory consent and I think that Section 24 is not confined to survey. It is confined to doing any of the works the board are authorised to do under this Act and the section goes further than mere survey. If it was only survey, I would agree with the Minister, but I think notification of anything other than survey should be given, provided that in the course of the survey they do not go on a farmer's tilled land. I would not at all suggest in the case of a survey that the occupier should get statutory notice and give formal consent, but I think it is reasonable that before going on property to carry out works there should be an obligation to serve notice, and I think the amendment should provide for the occupier instead of the owner.
I would be prepared to accept occupier and I would appeal to the Minister on this. If the Minister had a farm along a bog and had his cattle grazing down the edge of the bog where the fences were poor, as they are generally along bogs, with gaps in them, and some of the board's agents came in without any obligation on the board to indicate to the owner that they were going on his land in fulfilment of their duties, great hardships could result. Make no mistake about it, under the Bill they have the right to go into any man's land without any notification to the owner, and they will feel that they have the right to act in any particular way. I am not talking about responsible officers of the board —I know these will all act in a responsible fashion, but other people may be authorised by them to go in who may not be so careful.
These must be specially authorised officers of the board, especially authorised for this job.
I know. I am authorised and I will authorise somebody who will authorise somebody else. I have a small farm and two Electricity Supply Board lines carrying 30,000 and 10,000 kilowatts pass over. I have very considerable experience of people coming along at this time of the year to make their inspections and pulling open gaps without bothering to close them. When I go out I find my cattle in the meadow. I was trying to picture conditions of people living along a bog who had cattle grazing along the edge of it. Where some official of the board is sent in on a mission which is not very important over my small farm, there is no obligation on him to see that steps are taken to ensure that the cattle will not walk into the bog through the open gap. It is things like these that annoy farmers and make them curse these schemes and cause them to be unfriendly and antagonistic. It is exactly the same as if the Minister found somebody climbing over his own wall and crawling up his apple tree——
In that case I would suspect him of being there for more than a survey.
The Minister knows well what his reactions to that would be. I see no difficulty whatever in accepting this amendment. It is not a very difficult matter for the board to see that its employees inform the owners of land upon which they enter. It is not very difficult to tell the occupier in advance what they intend to do. Furthermore, it will create a sense of responsibility even among the most minor employees of the board which would be very desirable. It is rather difficult to establish that sense of responsibility on the part of these minor employees when they are sent on some man's land for whom they have little respect.
I am afraid I cannot agree with Senator Baxter that there should be a statutory obligation because I feel it would hamper the work of the board unduly. I think if the Minister made an administrative Order saying that every effort would be made or something like that, that that is the practical way of doing it. I think it would be awfully difficult to carry out a statutory obligation and it would be an undue hindrance to the board. It would also create a lot of litigation and I think nobody wants that.
What the board explained to me as its difficulty was the deciding in advance how far the survey would extend. They go to some man and they notify him that they will be walking his land for the purpose of inspecting levels and so forth and in the course of that inspection they decide that they want to extend their survey a little further but they may not know who the owner of the adjoining land is or what steps to take to get in touch with him. The instructions of the board are always to give notice to the owner of the land that they are going to inspect, but to make it a legal obligation is going a bit too far. They have been proceeding in this manner and carrying out these surveys and they have not any real difficulty in getting in contact with the owner or in securing permission for the survey.
We have no doubt that they have no difficulty. They have only to tell him.
I want the Minister to stress this point strongly with the board because the same question was raised on the rural electrification Act —the last Electricity Supply Board Act. I have not the slightest doubt but that the order in question was transmitted by the higher officials but I can tell the Minister of a case that happened in the last six months. Officials of the Electricity Supply Board went down to a man's land as they were so entitled to do and told him that they were going to walk his land, a proceeding they were entitled to under law. They dug inspection pits, however, and never told them about that and when that particular man happened to go out for a stroll that evening he found three of these inspection pits left open in a field where he had valuable blood stock. I agree that if the blood stock had been injured he would have a legal right to payment but he was not considering it from the monetary point of view. He felt, and I think he was justified in feeling, that if there was going to be survey work of that type undertaken that the dangerous process should have been explained to him beforehand.
I do not think that in this work the board are calculating anything more than an engineer walking over the bog but the section says that they may do all or any of the things which the board is authorised by this Act to do. That would involve presumably the digging of sounding holes for turf in the same way as the Electricity Supply Board would get through to the sub-stratum of a rock. I want to stress and to impress on the Minister the need for the board impressing on its minor officials their duty in this matter. I do not say that any senior official will not look into the matter in the right way. I want to make sure that minor officials will approach the owner of land with common courtesies.
It is survey only. Under Section 30 there can be no interference unless notice is given.
Perhaps the Minister would look into the matter with a view to making regulations.
I think the Minister will find that the work to which I refer is a type of survey.
No, it says "the board shall not exercise...."
Well I took the opinion of counsel in the other case and I was told it was part of the survey and that I could do nothing about it.
There is one aspect of this section which is very important and that is sub-section (2). I think that is a most drastic provision to put into a general section like Section 24. Undoubtedly general powers of entry are necessary for the board officials. The board itself is an inanimate body and must act through its officers and servants and the persons authorised by the board. I think that the section is too general and that all the strength in it is on the side of the board, but none of it is on the side of the man who is entered upon. I do not know whether that section is in its right place in the Bill or not.
Could we dispose of the amendment before we go on to the section?
Very well.
I would like to talk on the section itself.
Are the amendments being withdrawn?
I may say that I adverted to sub-section (2) and the powers that it gave when I put down my amendment. It was because of those powers that I wanted the insertion of the clause to give notification to the owner. If you obstruct after notification is given then you are in a difficult position but it seems to be a frightful intrusion of the rights of the individual that you can go on his land without notification.
But the person who enters on the land must be in a position to produce the authority of the board.
Not under this section.
And if an owner should obstruct an officer of the board he may be prosecuted and fined.
I think the Minister should look into this section again because there must be some safeguard put into it as it stands.
It relates only to any person authorised by the board.
Any person who is a servant of the board does not require that authorisation.
And the person who obstructs may be the owner of land and may be unaware that the person entering his land is an officer of the board. An officer of the board can say he is authorised to come in on the land without showing any authority and the person who obstructs is liable to be found guilty of an offence and fined.
I can see the point. Sub-section (1) refers to officers and servants and other persons authorised by the board and sub-section (2) refers to any person who obstructs any officer or servant of the board or any person authorised by the board. I will have that wording looked into to make it clear that a person who is a ser vant of the board must produce an authorisation.
And that therefore a person charged with obstruction would be obstructing a person who was authorised.
Would the Minister look into the amendment?
All I can tell you about the amendment is that that will be the normal practice but I would hesitate to make it a legal obligation.
If the man produces an authority that is notification in itself.
Perhaps we could amend Senator Baxter's amendment to read "shall so far as is reasonably possible give notice to the owner or occupier." Perhaps something like that would meet Senator Baxter's case and meet the Minister's point of view.
A person entering the land must be in a position to produce the authorisation. That is sufficient notification.
If the Minister undertakes to do that I shall withdraw the amendment.
Would the Minister consider what I said earlier, that it should be obligatory on the board to offer the land to the Department of Lands and Forestry, that is to say, to offer it for State purposes, before it is sold privately?
They will probably do that in any event.
What we are doing here is authorising them to sell it.
You have power now to sell it.
The board will have power to sell land which they have acquired or which will be transferred to them. I am not so sure that the provision which the Senator suggests should not appear in legislation promoted by the Minister for Lands rather than in legislation promoted by me.
Would the Minister look into the matter?
We can empower the board to sell it and they are empowered by this section. They can sell it to the Minister for Lands. The alternative which is suggested is that they should sell it only to the Minister for Lands. That would be too rigid.
I think you might insert a provision that they should offer it to the Department of Lands and Forestry. If it is not required by that Department, they can then sell it to some other party.
I should like to get the views of the Minister for Lands on the matter. We might have a provision that the board should notify the Minister for Lands before selling, but I am not giving any undertaking in that respect until I consult the Minister for Lands.
I move amendment No. 16:—
To add to the section a new sub-section as follows:—
(3) No land shall be acquired by the board upon which a dwelling-house has been erected or which is required for the amenity or convenience of a dwelling-house.
This amendment is self-explanatory. I feel that the board is going to be in somewhat the same position as the Minister for Lands is in regard to land required for forestry. The Land Commission very often feel that it is absolutely essential for them to have a farm in a particular place. I think, however, that one would rarely find a house in the middle of a bog, and in regard to the acquisition of land skirting a bog for the purposes of the board, I think the board should be able in their plans to make arrangements to leave the home of anybody living on the edge of a bog in such a way as not to interfere with the amenities of the dwelling-house.
It is a reasonable assumption that the board will not acquire any property unless it has to. If it requires land on which there is a dwelling-house, it will have to face the possibility of the payment of much higher compensation. It will avoid that wherever it can but circumstances may arise where it may be inevitable to acquire such land. Again I find it difficult to argue from the board's experience in the past but I can argue from the experience of the Electricity Supply Board. It is quite clear that the work at Poulaphouca or on the Erne could not have been undertaken unless power existed to acquire dwelling-houses where necessary. A similar situation might arise in connection with turf development, but the board will not acquire such land if they can possibly avoid it. I can easily imagine certain cases where the only possible place adjacent to a bog, where machinery could be put up or stores built, might be a place where there is a dwelling-house which the board would have to acquire. I think in the case of Lullymore there was only one possible outlet and that was where the factory had to be placed. If there was a house there, circumstances would have made it necessary to acquire the property because the layout of the bog was such that the factory could not have been erected anywhere else. It is only in such cases that the board would resort to the acquisition of a dwelling-house.
This amendment says that the board cannot acquire a site on which a house once stood. The amendment says:—
"No land shall be acquired by the board upon which a dwelling-house has been erected or which is required for the amenity or convenience of a dwelling house."
What is the meaning of the word "land"? I think the section is too vague to insert in the Bill and I do not think it would do any good at all. I think the amendment would be utterly worthless and it should not be pressed.
Of course Senator Ryan does not like the amendment but I should not have thought that Senator Ryan would ask what the word "land" meant because I assumed that he, at least, would have known that there was such a measure as the Interpretation Act of 1927 in which land is most care- fully defined. The word "land" means exactly what it is defined to mean in the Interpretation Act. However, the real point is not a question of the wording of the section. I want to get a principle established. Principles are of more value to the House than the mere words of a particular Bill. It could be quite easily held by the board that it would be more convenient for the board's purposes, at a particular point, to acquire the house of a man rather than that the board should at that point erect a house for one of its own workmen. Circumstances could arise in which the board could with a small variation of their plans avoid doing damage to the amenities of a house in which a person was living. I am only putting this point, knowing that I am certain to get a certain explanation from the Minister, that no man is going to be dispossessed for the purpose——
These powers are limited by the overriding provision of the section. It must be for the purpose of exercising any of its functions.
Part of the functions of the board is to produce turf and it might be thought necessary to acquire a house for the performance of such functions.
I am sure that any such exercise of powers would be challenged in the courts.
There could be a small variation in the plans of the board to meet the difficulties of individuals. I think the Minister will agree with me on that.
If the Senator will agree with me, that inasmuch as it will cost the board more to acquire land on which there is a residence, they will avoid doing it whenever they can.
I do not think it is intended to acquire such land but I want to have an assurance from the Minister.
I move amendment No. 18:—
To delete sub-section (5).
I think this amendment is necessary. It is not intended to meet the case where compensation is being given. It is aimed at the case where it has been necessary to bring an injunction to prevent the board doing something which they intend to do, and which is not a real bona fide exercise of their powers. Where compulsory powers are given to a body in an Act of Parliament, the courts are very slow to interfere with them, but if a person proposes to exercise those powers unreasonably and not bona fide you can go to the courts, and the courts will give you an injunction. Suppose the board were proposing to exercise their powers in a way that was obviously going to be dangerous to an inland waterway when they could attain the same object within the permission given them in a way which would not have the contemplated dangers, a person then could go to the courts and ask for an injunction. That is the only object of taking out this sub-section: to allow a person, if he thought that the board was acting unreasonably, to appeal to the courts for their protection.
Of course, the effect of taking out the sub-section would be this: that a person who was dissatisfied with the compensation awarded by the arbitrator could then proceed in the courts. In so far as the Senator wants to provide against the possibility of the board proposing to do something that could just as well be done in some manner that did not interfere with a person's rights, what the Bill proposes is that the Minister will exercise a discretion there. The board cannot, in fact, exercise its powers under Section 22 without the consent of the Minister for Industry and Commerce, and without giving notice to the person whose rights are being interfered with. Consequently, if that case could be made, it could and would be made to the Minister, who would, through his technical advisers, have it examined.
In a case where property has been acquired, or a right interfered with, the Bill provides that, where that has happened, there shall either be compensation on an agreed basis or compensation determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919.
It is necessary to have sub-section (5) in the Bill. I am told that otherwise you would get this position: that when compensation had been assessed under the 1919 Act by an arbitrator, it would still be open to persons to take proceedings in the courts unless they were debarred by the sub-section. The purpose of the sub-section is to make it clear that the determination of compensation by the arbitrator will be final.
I think that a person who had his claim settled by going to arbitration and getting compensation could never go to court. He would have elected his remedy and could not get another lump sum from the courts in any circumstances.
No, but he could get a different decision from the courts as to the amount.
I think the courts would say that a special remedy had been provided by the Statute and that a person was confined to that remedy. I see what the Minister is afraid of, and I would not have the slightest objection to a provision being inserted which would secure that the danger which the Minister apprehends could not occur. I am rather anxious to preserve the possibility of an appeal to the courts against the doing of something unreasonable. I am not altogether familiar with the practice, but I think the procedure would be that if an inland waterway were to be apprehensive as to what I am rather afraid might happen they might put the case before the Minister, or rather before the Minister's Department, and that it might be brushed aside—that something like that might happen. I am anxious to preserve the right of a person who is apprehensive of serious and unnecessary danger being done having the right to go to the courts for and injunction.
What is proposed is that instead of the courts, it is the Minister who must give his consent, and that the person operating the inland waterway must be notified.
Under Section 29?
Section 22.
Supposing it does not come under Section 22 at all? Section 22 is a limited section. Would it come under Section 29, sub-section (2) which says:—
"Nothing in sub-section (1) of this section shall be construed as affecting the operation of Section 130 of the Transport Act, 1944."
Does not that require the consent of the Minister? There is nothing in Section 22.
It is Section 30. Under that section the board must give a month's notice.
That is only where they enter on lands. I think it is Section 29, sub-section (2), which, by a side wind, brings about the position where it is necessary to go before the Minister. If it was merely Section 22, it would be quite inadequate because that only deals with certain limited interferences.
The question of Ministerial consent does not come in except under Section 22.
Suppose the board acquires some land and makes an excavation of it, and the canal company is in the position to show that that is going to damage the canal, I do not think that would necessarily be done under Section 29. Paragraph (d) of sub-section (1) of Section 29 says:—
"divert, close, remove or otherwise interfere with (either permanently or temporarily and either by agreement or compulsorily) any private road, way or bridge or any canal or other artificial waterway or any artificial watercourse."
If it does not come under that, then my earlier contention holds that it is necessary to amend Section 22.
I am not sure what is the difference between a canal and an artificial waterway.
I am prepared to withdraw the amendment so that there may be an opportunity of looking into the matter further. It is not very clear at the moment. If necessary, I can put down the amendment again for Report.
Section 29 appears to refer to a private right of way or bridge or canal. I think that means a private canal. The word "private" may not cover it. Section 22 deals with a public road or public waterway.
No, it is a private road or private waterway.
I will look into that. There may be some slight conflict between Section 22 and Section 29. Section 22 is specific that interference with any inland waterway or bridge will be dealt with in the manner indicated.
I mentioned earlier that it appears that Section 22 first of all was intended to be a self-contained section, with its own provisions for compensation and loss. The Minister might have accepted my earlier amendment, providing that, if damage is done by any action of the board, there will be compensation given. If it is not intended to be self-contained, then the board may work either under that or under Section 29 and it will be necessary to amend the Bill to meet that contingency. It is impossible to have it both ways.
I move amendment No. 19:—
To add to the section a new sub-section as follows:—
(6) In the determination of the amount of the compensation to be paid under this section regard shall be taken of the future value of the land acquired to the owner thereof in addition to the present market value thereof.
Before I say anything about this amendment, in case I should again incur the whip of Senator Ryan, may I say that this is to test a principle rather than propose a form of words? What is worrying me about compensation is something that is quite easily understandable but rather hard to express in words. There may be, on any particular bog, 100 acres of undeveloped bog in the hands of one person and there may be adjacent to it another 100 acres of bog, also equally undeveloped but in the hands of, say, 20 people. Now, it is fairly obvious that, so far as the large tract of 100 acres is concerned, it is extremely unlikely that that stretch of bog will have any utility at all, except perhaps to shoot snipe or as very rough bog grazing. The stretch in the hands of a lot of small people is in a different position, and this is a matter that occurs very frequently around Kildare. In the case of those people who have about five acres of undeveloped bog each, it may mean their whole livelihood, after the existing bog that they are using has been cut out. I want to ensure that, in the ascertainment of compensation, there is taken into account the future user by the small man of his bog face.
This is not a problem which arises completely a new. So far as the bogs acquired during the emergency are concerned, the situation has been, to put it mildly, most unsatisfactory in regard to the bogs acquired by the Minister's Department. During the emergency, both the military authorities and the Turf Development Board, at the request of the Department of Supplies — now the Department of Industry and Commerce — cut hand-won turf in County Kildare.
I have not heard any grouses at the prices paid by the Department of Defence for the bogs they acquired, but on the other hand I have hardly met one person who was satisfied with the prices paid by the Minister's Department. The practice of the Department was to acquire the land and to request the Turf Development Board to go in and work the actual cutting. The reason for the complaints is that the Department have valued the bog as it was, even as undeveloped bog.
In the case in which I am interested, it belonged to small people who were coming to the edge of their existing banks and who then proposed to move on to this bog which was acquired. It had very considerable possible use for them. The Minister is as aware as I am of the considerable trade done by people coming from Allenwood area with horse and cart and selling turf in the city. Whether that trade will go altogether as a result of this Bill is another matter, but I want to ensure that their means of livelihood will not be gone and that they will be treated in a different way from the person who has a large stretch of bog which can have no possible future private development.
I do not see how it can be related to a form of words in the section, but I would be glad if the Minister would give that problem his consideration. I think he will agree that a bog which is split up amongst a great many small people is far more likely to be developed than a large tract in the hands of one person. At the same time, they are both undeveloped bogs at present and it is a little bit difficult to deal with their future use. I do not see how it is possible to decide that, but in all reasonable probability the smaller areas will have great utility for the people for whom I speak.
I should imagine that, in so far as the Senator's amendment relates to the assessment of compensation, that factor would be taken into account in determining compensation for disturbance. Clearly, the disturbance caused to the small producer in certain circumstances would be much greater than in the case of a larger area and presumably the compensation would be adjusted accordingly.
That was not the case during the emergency.
I would not like to offer an opinion.
I will be quite satisfied if the Minister will look into it.
I would like to refer to sub-section (5), which Senator Kingsmill Moore was seeking to delete. It says that "no action shall lie at law or in equity ..." Clearly that section was taken from some of the old Land Clauses Acts before the amalgamation of the Courts of Law and Equity. This has been carried on here unnecessarily and has no meaning now, as those courts were amalgamated under the Courts Judicature Act and now the High Court is no longer divided into common law courts and chancery courts. I mention this so that, in drafting future Bills, it may be corrected.
I will bring the Senator's observations to the attention of the Parliamentary Draftsman.
I move amendment No. 20:—
To add to the section the following words:—
"or in case damage to such land, easement, right or property first becomes apparent at a date subsequent to the date on which such entry, exercise or interference takes place then within one year after the date at which such damage first becomes apparent."
I have already touched upon the reason for this amendment. The section as drafted requires that, whenever the board requires to take certain action and goes in on land or applies for the right to make a drain on other land, compensation shall be assessed within a year of the time they do so. That is perfectly all right in certain cases, but it is not all right where the damage may not appear for long afterwards. Take a case, which I have already given, where the board wishes to acquire bog land near an inland watercourse.
If they do so, they probably will be subject to the same rights as ordinary owners, that is, they must so use the land they acquire that they do not adversely affect adjoining land, but under this Act they can acquire any right or easement. They can acquire the right to drain the land they have already, and by draining the land they may entirely remove the lateral and even vertical support of the inland waterway. That may not become apparent for a year or two years — that is, the evil may not become apparent until you get a breach and you have all the water running out of the canal.
Similarly, they might acquire a water right, the right to take water from some of the supplies that flow into the canal and keep its level up. The consequences may not be obvious at the time. Indeed it might be some years afterwards when the damage would be discovered, when a section of the canal would be found to be running dry. If you apply it when the power is first exercised by the board, it would seem to be ridiculous to make a claim on a hypothetical basis, say that if you are going to take and drain this you may make a breach and you are going to pay compensation on the grounds that you are going to do it. But, unless that inland waterway is forced to put forward a hypothetical claim like that, that the board may acquire a right or property which apparently is not likely to do the slightest damage at that time, is it suggested that the canal company should be content with something in the nature of a token payment, but that there shall not be preserved the right, subsequently, if it is shown that the result of the acquisition is to do great damage, to make a claim for substantial compensation?
That is why I seek to have a provision that if, at the time the initial act is done by Bórd na Móna, it should not appear that the initial act is going to cause any substantial damage, it shall not be necessary for the canal company or any other company liable to be adversely affected, to make a claim at that time on the basis of probability. But, if months or years afterwards, injury occurs which is clearly due to the action of the board, then the person adversely affected can come in. There cannot be objection to it for it is only in a case where there is no damage apparent at the time. It is a perfectly regular principle which is noted in the Public Authorities Protection Act in the case of what may be called continuing damage. It is necessary to make this clear, otherwise you will have an arbitrator spending time dealing with hypothetical claims. It may be said: "Don't shout before you are hurt. Wait until you are hurt and then we will give you a plaster for your wounds."
I am not at all clear that I have got the Senator's difficulty right. The board acquires some canal company's property. It gives a month's notice, deposits plans and gives all the particulars required and gets possession of the property. This section requires that the canal board concerned must lodge its claim for compensation within a year. Presumably it will prepare that claim on the basis most favourable to itself. The Senator wishes to protect it against making the mistake of claiming too little.
I have not made myself clear. Let us see how this can affect the canal company. They sell a piece of land adjoining the canal for £1. They can get that compensation. Bórd na Móna takes over the land and the company find that their drainage scheme has removed or affected the lateral support of the canal. The injury caused by this drainage may not be apparent for a couple of years. My point is based on the supposition that the board acquires a strip of land extending parallel to the canal to the extent of a quarter of a mile.
The property of the canal?
The property of the canal. The company may get some small compensation. But as a result of what Bórd na Móna do on that land they interfere with the waterway — they remove its lateral support and cause a breach which may occur years after the work done by way of drainage. The Grand Canal Company or other company should be entitled to make some kind of claim for compensation. If they make a claim in the courts they will be met by the earlier section. They will be told that all the board did was either to interfere temporarily or permanently with the waterway, causing a breach, but that they acted quite properly, having acquired the right to drain the land.
The Grand Canal Company may then say: "We might have put in a claim for hypothetical compensation on the ground that what the board was going to do would do harm but we could not prove definitely that it might do us harm. We could not have seen that the action of the board on the land which they acquired or on the land nearby which they did not acquire would do us this harm." How does the Minister see that an inland waterway company will be compensated after the result of the operations of the board, acting within the statutory powers and resulting in a breach of the canal becomes known?
If the board has acquired property belonging to the canal company under Chapter III, then this section requires the canal company to lodge its claim in respect of compensation within 12 months. But if the board acquired some other property and carried out drainage works in the vicinity, or took other action damaging to the canal, then this limitation would not apply. The canal company could proceed for compensation against the board when the damage became apparent. This section applies to acquisitions made under Chapter III.
I am taking Section 29 which is under Chapter III. Under Section 29 the board can, first of all, acquire land. Secondly, it can acquire easements, water rights or other wayleaves. That is to say, it can acquire a right to drain land which either belongs to them or to the canal. Then, they can acquire a right to terminate the easement or wayleave, or to interfere with any canal or other artificial waterway. My point is that you cannot see immediately the evil they have done by this interference. Years may have passed before the damage is apparent, and if the company is limited in its claim to 12 months after the board go into possession of the right then the company will not be able to secure compensation for the damage inflicted upon its property. It may be sixpence or it may be £6,000.
Is that a reasonable claim? Let us envisage a hypothetical case. The Grand Canal Company has property adjoining its canal. It does not regard it as very valuable from the point of view of protection. Bórd na Móna wants to acquire it. The canal company sell it for what it thinks it is worth and they get agreed compensation. Years later, they found they made a mistake. This is the case— they made a mistake. They then found the land was essential; they found that it was a necessary security for the waterway. They now want to be recompensed for their mistake, because clearly if they can support the case that the land is in fact essential to the undertaking they can claim upon that basis within 12 months. It is only where they themselves do not assume that the land is essential or of any higher value than the arbitrator puts upon it, that the case the Senator refers to would arise.
There was a case in Kildare which affords a parallel. Private persons cut turf fairly close to a road and in consequence of that happening, the lateral support for the road was interfered with. Actually what happened was that well after the face of the bank was cut, the peat bottom on which the road rested dried up or cracked, and the road tilted over. That did not happen until very long afterwards. I cannot recollect, however, whether it actually occurred within 12 months of the cutting, but it was pretty well a line-ball case, as to whether it was 12 months from the first cutting. If the section is left as it is, I am not a little worried from the point of view of the county council. There might be a cutting near the land and it would be an interference with an easement of the county council, namely, the right of lateral support. If, every time the board cut near a road the county council had to lodge a pro forma claim for compensation in case that at a later stage it would transpire that that interference was going to make the road subside——
This limitation applies only to cases under Chapter III.
I agree, but the board is acquiring land belonging to someone else. It is not acquiring land belonging to the county council, but there is an easement there belonging to the county council and that easement is interfered with. It may be much more difficult to say that that easement is interfered with before it becomes apparent than that there is going to be any damage. As the section stands, it appears to me that the only way the county council could protect itself is to lodge a formal claim any time the board cuts near a road. I think the effect of this will be that the board will be cluttered up with claims merely to protect possible rights. I would suggest that if the section were to read that claims had to be lodged within 12 months of the acquisition or intereference or within 12 months of the damage becoming apparent, it would be unnecessary to lodge a lot of these claims. For example, in the case of the Kildare County Council which I have in mind, if the work had been done by the board I cannot see how we could have protected ourselves except by lodging a claim at a time when it was far from clear that damage possibly might arise. The county surveyor felt that it was possible and he made the people concerned stop, but it was far from certain that the road was going to subside or that there was going to be any damage.
In actual fact, it did subside. It does seem to me that, if the section is left in its present condition, there will have to be a great many claims purely for the protection of the right, claims which will in fact be shown to be unnecessary later because no damage arises. If the Minister met the point now, I think it would ease the position for the board later.
Let me take the position of land which has been acquired a quarter of a mile away from a canal or road. It may belong to third parties or to the canal company. If the board go in and take that land, prima facie, they will have to pay only the value of the land in the market. If it belongs to the company the company merely accepts the market value. If it belongs to a third party, the third party accepts the market value. Then perhaps eight months after that, the board by their user of that land or by their drainage, do something which adversely affects the canal, which amounts to an interference with the canal, because, by draining it or by otherwise working it they take away the support of the canal. Would it not be a ridiculous thing that the canal company should have to come in at the very commencement and say: “It is possible that the board may do something on the property they are acquiring under which at some future time we may suffer damage”? They could not prove that. Either you are going to be met with a whole lot of hypothetical claims for possible damage, which no arbitrator could estimate or else if damage does occur where it should have been anticipated the parties affected may have no redress.
The Senator is losing sight of the fact that if the board has acquired property in the vicinity of the canal, and interferes with the property, unless it has given notice to the canal company of its intention to interfere with some right, then Part III does not apply at all and the limitation does not apply. The mere fact that the company had drained land, not anticipating that any damage would result, does not bring the time limit into operation. At that time the canal company can proceed for any compensation it is entitled to by reason of this interference with its easements or for loss of traffic or loss arising from any other cause. It is only in the case where the company has exercised its compulsory right of acquisition under Part III and has given notice under Part III that the provisions of the chapter come into operation.
Supposing it gives notice to this effect: "We intend to carry out excavation work on the land we acquire and we give you formal notice that this may affect you or affect your lateral support." Obviously the company would have to do one of two things. It would either have to go to the courts and say: "The board is going to carry out work which will do a terrible lot of damage to us and we ask for an injunction" or it could go to the arbitrator and say: "We anticipate that the rights which are being taken may cause us damage." No arbitrator in the world is going to attempt to assess the probability that the action of the board will undermine or affect conditions of an inland waterway. The arbitrator is not going to give compensation for a thing unproved and unprovable. I do not know how you would do it under the 1919 Act. He may say: "Nothing has occurred so far. Do not howl before you are hurt. The Act says that when you are hurt, and if the operations, in fact, interfere with your lateral support you can come to me." Then, of course, the canal company will say: "Well, we anticipate that you may do us some trouble; you have taken away our right to bring an injunction; it may be that we are wrong, in which case no one is going to be hurt, but if we are right we can come in and make our claim for compensation for the damage that is being done." That seems to me to be absolutely necessary. I do not know how the Minister would ask any arbitrator to assess in money's worth the possibility that the action of the Board a quarter of a mile away from the line of the canal might or might not cause a slip. The possibility being uncertain, and the slip being uncertain, I do not know how any arbitrator could attempt to do it.
I frankly confess that I find some difficulty in following Senator Kingsmill Moore's amendment. Section 33 deals with claims for compensation in respect of the acquisition of land, easements or rights or interference with land, easements, rights or property. Senator Kingsmill Moore wants to add to the section the words:
"or in case damage to such land, easement, right or property first becomes apparent at a date subsequent to the date on which such entry, exercise or interference takes place then within one year after the date at which such damage first becomes apparent."
When the board acquires land no one has a claim for any damage to that land except the board itself, and the board would not claim compensation. The Bill sets out clearly that compensation may be claimed for the acquisition of land by the board, or it may be claimed for interference with land by the board, interference not only with land but with easements or rights of way. But, when the board interferes with land, it must do so in a positive way, and that is set out in paragraph (d), sub-section (1) of Section 29—that is where it diverts, closes, removes or otherwise interferes with any private right. Paragraph (c) restricts the board to interference with any easement, way-leave, water-right or other right, and paragraph (e) makes provision with regard to interference with land either permanently or temporarily. Compensation is payable in respect of any positive act done by the board to land. We may call that positive act interference with the land or property of another person. Compensation is then payable under the Bill for such positive interference.
If, by reason of something which the board may do on its own land, the owner of adjoining land suffers in his property, he cannot claim compensation under this Bill, but is entitled to bring an action at common law against the board, because the damage is not a matter in respect of which compensation is payable under this Bill. Therefore, he has his common law rights and remedies against the board for any interference or damage which his property may suffer as a result of anything done by the board on land which it has acquired. The same thing holds if the board should afterwards interfere with or cause damage to any rights or easements attached to any land the property of an adjoining owner. I think that Senator Kingsmill Moore is mixing up the damage which may result from a tortious act done without lawful authority and an act which the board is empowered to do under the Bill and for which the board must pay compensation.
The amendment speaks about damage becoming apparent at a date subsequent to the date upon which the land was entered or the right exercised or the easement interfered with. There is no compensation given by the Bill for damage. It is given as the price of the land acquired, and as compensation for positive interference, such as the blocking up of a roadway, the diversion of a roadway, or for interference with the user of land. I cannot conceive a question of latent damage at all. What I mean is that something happens. Let us say that the board has acquired land for its own use or that something happens after the board has ceased to interfere with the land. That cannot arise either by the acquisition of land or interference with it. I think myself that the Senator's amendment would be more appropriate to the ordinary action which a person is entitled to bring at common law against the board or against any proprietor of land who does something on his own land which affects land in the occupation of an adjoining owner. Therefore, I do not think that this amendment is apt or appropriate to this section.
I say ditto to that.
If the board drain water away, even on their own land, so that it affects my right to support, they are interfering with my land and with my easement. Although the interference begins now, the resultant damage may not show itself until it has gone on for some time, until the subsidences and alterations have taken place. It may be 18 months after they started to interfere with my land by draining the sub-soil water, or by taking away my lateral supports by digging down a trench that the damage shows itself. How could I claim against the board until that interference was provable, and that may not manifest itself for some time? I cannot claim in respect of that because I cannot prove that they are doing me any harm now, but after 18 months the harm shows itself, and I can prove it. I might then be able to claim £1,000, but before that I could not make a claim for 1,000 pence.
Perhaps this matter might be left over for Report Stage.
I think that the Senator is again wrong in two respects. This limitation only applies in respect of acquisitions under this part of the Bill. Any other action taken by the board which interferes with any property or causes it damage is not affected here. That limitation does not, obviously, apply in respect of it. The second point is, if I understand the case properly, that it seems to me clear that the canal company, in the case which the Senator mentioned recently, can, in fact, claim when it is apparent that there has been interference with their right which is causing them damage. I do not see how they are debarred from doing that. Thirdly, is it not obvious that there must be some time limit?
Is it not clear that, if you have not a time limit of this kind, the canal company could fail to preserve their embankments or protect their property in the vicinity of any works being done by the Turf Development Board, knowing, as the Senator himself admitted, that they could claim compensation from the board for any damage that might develop while the board are operating in the vicinity of the embankment, even though the damage may be the result of their own failure to maintain the embankment? You cannot just insure the canal company against any damage to their embankment merely because the board have acquired portion of their property, or the property of somebody else, in the vicinity of the canal at some stage. You could not have an indefinite insurance of that kind for all time. There must be some evidence that the action of the board did interfere with the property of the canal company.
It is quite usual to provide that, in the case of underground workings, you can claim only from the time the subsidence takes place. What I am anxious to secure is that if the board does anything which subsequently produces a subsidence of the canal banks, I can claim, from the time that subsidence takes place, that the interference commenced when they started to drain their own land. There is an admitted difference between interference and manifestation of the damage.
Surely they have not interfered with the canal until the bank is damaged.
You are entitled to interfere with your land at any time.
You are entitled to do what you like with your own land so long as you do not interfere with lateral support of anybody else's property. As I read the Act, as soon as they begin to drain away my subsoil water, they are interfering. But there is no evidence of damage. If the Minister thinks that there has been interference, as soon as I prove the damage resulting from the subsidence, we are merely trying to get at the same thing, merely seeking a formula. I do not want the canal company to be enabled to bring a claim against anybody on the ground that they are taking away subsoil which may cause a collapse but, the moment they do that, that is an interference. You may interfere with my right of support if you dig a trench outside my house. It may not be big enough to bring the house down. Still, you are making a technical interference for which I can claim under the Act; if you go on long enough, you may bring the house down. You can have, to use the lawyer's phrase, injuria sine damno—interference with a right not followed by damages estimable in money. I am only anxious that, when it is proved that damages estimable in money have occurred, you should be able to come in and make a claim.
Is not the Senator assuming something that is unlikely? He is assuming that the board is going to stick out its neck in this respect. Having acquired land in the vicinity of a canal and proceeding to drain it, the Senator assumes they will notify the canal company that they are going to interfere with their embankments, though the chance is that there will be no interference, and leave themselves open to a claim. The Senator is assuming that the board is going to notify the canal company of interference which may not develop at all. Surely, the board will not ordinarily take that action and, therefore, the canal company will be free to take action against the board if damage becomes apparent subsequently. The Senator is assuming that the board is going to notify the canal company that drainage of a bog in the vicinity of the canal is going to interfere with their property, though there is no reason to assume that such will be the case.
I think that it would be very wise for the board to give such notice. It would be wise for them to say: "We are going to do this work which may interfere with you; come in and make your claim to compensation". There may be technical interference—
Will the company not answer back: "The board have admitted interference"?
They may admit technical interference but they will say that what the canal company is looking for is money. The company may get £5 damages if the question comes before the arbitrator. If the damage ultimately cost £5,000 to repair they can say to the company: "You got your £5; shut your mouth".
I do not know whether I should intervene in this debate or not. If I am a property owner adjoining the canal and do something which injures the canal, surely the canal company has a right of action against me. Whether the date of acquisition be recent or otherwise, that should not affect the issue. If damage is done to the canal, surely a right of action at law lies and why should not that right continue?
I think that Senator Kingsmill Moore has used the wrong maxim. He should have said damnum sine injuria instead of injuria sine damno. He is talking about damage by drainage of subsoil water. At common law, a man has the right to drain his own property in such a way as to cause damage to his neighbour's sub-soil water. That is damage which his neighbour suffers without any legal remedy. Senator Kingsmill Moore has referred to damage caused by removal of subsoil water and seeks to get compensation for such damage. At common law, such compensation cannot be obtained. The Senator seeks to get something under this Bill for which neither the common law nor the Bill provides. That is why I think he must be left to his legal remedy in any case in which there is no positive interference by the board under the Bill or no act done by the board of interference with the land or with the easement attached to the land.
I expressly said that I was leaving out the Bradford Corporation case to which my friend referred. You can steal a person's subsoil water and he cannot go against you but, if you drain water under his house so that his house comes down, he has a right of action.
Can we get away from the liquid and come back to the solid? I am interested in roads. Do I understand the Minister to say that, as long as the board have not served in the form provided in sub-section (3) of Section 50, a notice on the county council that they are interfering or about to interfere with the right of lateral support, then the provision does not operate?
It seems to me that this chapter does not come into operation at all unless the board says to the county council: "We are taking your lateral support; what compensation do you want?"
Would the Minister relate that to sub-section (2) of Section 32? Perhaps he would consider it between this and the Report Stage. It appears to me that, everywhere else except in that sub-section, it has been referring to things that happened "under this chapter". In that sub-section, it refers to things done by this board "under this Act".
That brings us back to Section 22, "where there is interference with public roads and public waterways".
No, no. The amount of the compensation to be paid by the board on account of interference with any easement "under this Act".
That brings us back to Chapter 2, which relates to interference with roads, railways and waterways. Chapter 3 relates to private property and private roads and waterways. I will have the matter examined.
On the Second Reading, we discussed a particular point about this Emergency Powers Order and I hesitated to put people to the trouble of typing out the whole Order in the form of an amendment. At that time, we threw out to the Minister a suggestion that, instead of putting an Emergency Powers Order in detail in the section, he should put it in the Schedule. Was that considered?
It is a very long Order and it is completely spent, in the sense that both these Orders authorised the Turf Development Board to erect railway sidings, to acquire land and pay compensation for the land. That has been done, the sidings are there, but there is some doubt as to whether these Orders would continue as law.
Would it not be possible to legalise the situation in a short section, without having this by reference? It means at present that anyone going through this Bill does not know what the purposes of the Emergency Powers Order are, without looking them up.
I understand that there will be other legislation, which will provide for the adaptment into permanent legislation of some of the Emergency Powers Orders and that there will be a Bill for that purpose which will make those Orders as accessible as an Act of Parliament.
It is very disquieting for the prospects of the whole measure that the Minister has made no attempt to give us anything in the nature of what a company requiring new money would call a prospectus. If a grant were being given by the Government and on that understanding we were asking the public to subscribe to the capital of this institution, there certainly should be some estimate of future earnings and profits. No attempt whatever seems to have been made to give any such forecast of future profits or losses. I think we have a right to know, first of all, at what price the total production of saleable turf is going to be sold over a period of years and what the effect of that will be on the finances of the company. I grant that it would be only an estimate, but I feel it is very wrong to use large sums of public money to embark on this project without any estimate of the future earnings or losses. It is all so casual and I am afraid that that casual aspect will run right through the work of the board in years to come. It is a bad beginning, that no honest effort has been made to give the public information as to the future prospects of the company.
I do not know if it is desirable that we should issue something akin to a company prospectus, such as might be issued by a private enterprise trying to attract capital. We do not have to resort to those tactics in order to get the position understood here. The Seanad has got all the information necessary. The board has prepared a list of bogs which it has surveyed and marked out as suitable for development and that list has been given. The estimated output the board considers can be achieved in those bogs has been set out. On the assumption that the board can develop these bogs to the production of 1,000,000 tons of turf a year and realise the price which its experiments have told it was possible, an average of about 22/6, it can recover all those capital investments within the life of those bogs and pay the interest which will be due upon advances. That is as near as we can go.
We are not compelling the board to sell the turf at that price, nor are we compelling them to sell it at any uniform price. It will be possible to obtain for the turf whatever people are willing to give for it in competition with other fuels that may be available, at the prices at which those other fuels may be available. If it succeeds in realising an average of 22/6, it will have earned the interest payable on the advances and be able to repay the advances as well as all working expenses. If it realises more than that, it will be earning profits. I do not think it is desirable that the company should be earning profits in the sense in which that would apply to a private company. They might endeavour to obtain surplus revenue, to finance experimental or development work, but there would not be an attempt to earn profits in the sense that would affect the operations of a private company.
I stated here and in the Dáil the reasons why I believed it would be practicable for the company to sell 1,000,000 tons at that average price at the bog. I think those reasons are sound, but that is the utmost that can be said at the present time. We have given the reasons why it is deemed practicable to maintain production at this level, the amount of capital that will be required, the average price that should be realised in order to enable the capital to be repaid and the interest on it also, as well as various considerations affecting the market, showing why that is considered practicable. It may be that some of those estimates will prove to be inaccurate, that some of the considerations that have led the Government to support the project will prove to have been less sound than they seem at the moment, but I do not think so. I think that, on the whole, the board's plans have been prepared on a basis sufficiently conservative to provide a margin of safety in the future. But that is a matter upon which the publication of a personal opinion in the form of a prospectus would not add any strength to the opinions already held.
Would it be right to say that those who went to see the bogs had all the information beforehand in detail? If Senator Sir John Keane had been with us he would have been able to read the whole thing for himself. He should have gone to the bogs. He would have got all the information he required.
Does the Senator mean to say that if I had gone down to the bogs and got the good lunch that was served there I would be able to make an estimate of their future? I am not going to pursue the matter. The Minister says he has given the information but I do not think any business man would say that it is comparable with what a prospectus would show the public. The Oireachtas is told that £3,500,000 is to be entrusted to this board. There is no detailed information. It is very unsatisfactory so far as pursuing the matter any further is concerned.
I think this is a very unfortunate way of doing business and showing the true financial working of this board. I feel that the board should show interest over a period. I am quite aware that the board might want very great financial assistance to pay its interest. The Minister himself knows what the possibilities are of earning interest. I do feel that interest should be charged, and if the interest is not earned then it should be voted. It should not be taken into capital. It should be made the subject of a Vote in Parliament where the whole matter could be debated. If the company cannot earn interest, I think the Oireachtas has a right to know what progress it is making, if it is making any progress. I feel that the Minister should provide for the payment of interest by this Vote in the Oireachtas.
I do not think that that is a reasonable point of view. It is recognised this enterprise cannot get to the stage of profit earning for some years. Why should it be burdened with interest on the capital advanced during its unproductive period or why should there be a special Vote in the Dáil in respect of the amount of interest? It seems to me to be a matter of what is the most suitable practice to adopt. We are asking the Dáil to approve the creation of this enterprise now, and to do it by legislation in a more deliberate way than is involved in the adoption of an Estimate.
Here is the proposition: the State does not invest money in an enterprise of this kind in the same way as capital is invested in the ordinary shares of a private undertaking. We recognise, therefore, that the company will have to bear a fixed interest obligation at some stage irrespective of the financial results of its working during any period. We appreciate the fact that the board cannot bear that fixed interest for some years, and therefore, we postpone its obligations in respect of interest for a period.
We propose at the end of that period that it should begin to pay interest and to repay the money we have advanced to it. That is all contained in the Bill, and it was debated on the Second Reading and on the Committee Stage, and it seems to me that it is a far more effective way of ensuring the control of the Oireachtas over the money involved than to bring an annual Vote before the Dáil. In actual fact, I do not think it was done in the case of the Electricity Supply Board when the payment of interest was postponed. That was done in fact by a decision of the Minister for Finance. We have waived interest payments by the Electricity Supply Board during the emergency period.
And for the Agricultural Credit Corporation.
The same applies. There is provision in this Bill for the postponement of interest payments and I think that makes for better recognition of the right of the Oireachtas to decide in this matter.
I would ask the Minister what would happen if the board were not able to carry out its obligation to produce the interest mentioned in the Bill? Suppose that, through some unforeseen circumstances, the board was not able to pay?
Then, the interest would accrue against it.
And go on accruing until, ultimately, the Minister would have to come to the Oireachtas?
If the company failed. If for one reason or another the company failed to pay interest in any year, the interest would be carried over to the following year, and the company would be expected to pay when it was in a position to do so. If the company was not able to pay the interest ultimately then it would be a financial failure and the matter would have to come to the Oireachtas.
I do not think we need be the slightest bit afraid of the company failing while the taxpayer is behind it. If it did, then the State would be in a parlous condition indeed. Will this appear as a national asset in the national balance sheet, or will it be regarded for five years as a non-productive asset?
The asset will not be productive of interest during five years, but we hope it will be productive of machine-won turf.
I can only once more express my apprehension of this form of Government company. That is all I have to say.
Surely there are other factors to be taken into consideration in an undertaking like this. You are going to waive the payment of interest over a period. It is quite possible that you could pay the interest over that period. You could do that by reducing the wages of the workers until they went away to work in England, and you could try to get coal from England, if you could get it, to replace the turf from your own bogs. You must pay your workers enough to keep them on the job and you cannot always be looking for profit and loss on the investment. Which is more important—the payment of 2 per cent. interest or the production of turf from your own bogs? You have to face the difficulty that thousands of fellows whom you want at home and who are essential to the success of this enterprise, make up their minds that they are not going to stay and make the enterprise a success, but to fly out of the country. The alternative is to relieve the undertaking of the obligation to pay the interest so that these people can stay in the country and build up homes and families in it.
If you are looking at it from the point of view of profit and loss to the nation I am sure it is as obvious to Senator Sir John Keane as it is to me, that there can be no doubt as to what side the profit or loss to the nation lies.
I would like to know why the words "by arrangement with bankers" are inserted here. I would suggest that the usual clause is that the board may after consultation with the Minister procure such sums as it may require for current expenditure. Why are the board limited or confined to borrowing from bankers?
It is intended to permit them to have a bank overdraft.
Would it not restrict the borrowing powers of the board? I think it would still enable them to have an overdraft if the expression "by arrangement with bankers" were omitted.
What we ask is to empower the board to run an overdraft if in the course of its general working an overdraft is necessary at any time, and I think it is obvious why it would require the consent of the Minister for Finance before doing so, because it might have repercussions on the general finances of the board. In fact although most commercial undertakings do require overdraft accommodation at certain seasons of the year, it should be possible to arrange in this enterprise to avoid it but, even so, there will be a season of production and a season of sale and to some extent it would require some temporary accommodation.
I imagine that the bankers would require some security from the board for the overdraft.
Not all bankers.
Would it be possible for the Minister for Finance or the Minister for Industry and Commerce to ensure that, if borrowings have to be undertaken by the board, the banks will be prepared to give the same facilities to Bórd na Móna as the Minister for Finance has been able to get in discounting bills for the Government?
I hope to be able to persuade them that Bórd na Móna is as sound as the State.
I move amendment No. 21:—
In sub-section (1), after the words "profit and loss account" in line 11, to insert the words "and unit costings".
This is a small point. The Minister may think that I have a bee in my bonnet about it but I should like to have some mention in the statute about unit costings. I am sure the Minister is anxious that the business of the board should be explained as clearly as possible and I think unit costings are an integral part of any up-to-date system of accounting.
I certainly intend to use the power given in this Bill to require the board to keep accounts in such a form that the report, coming to members of the Dáil and Seanad, will give to the members information which will enable them to get a real picture of the working of the board. There is power given to the Minister to direct the keeping of special accounts if necessary. When the report comes before the Dáil or the Seanad, if there is a reasonable case made by any member for more detailed information than the report contains, then we can direct the board to keep special accounts in order to get that information.
One final word. The Minister took umbrage at some of my earlier criticisms in regard to the board. All I can say is that if he wants a headline for the kind of report expected from the board, he has got the report of the Electricity Supply Board. If the Turf Board would study the reports of the Electricity Supply Board and as far as their conditions apply, bring in a report in the same form, I think it would be found satisfactory to everybody.
I move amendment No. 22:—
Before Section 60, and in Part IV, to insert a new section as follows:—
60.—(1) During the year 1950 and during every third year thereafter the Minister shall cause to be made by an independent and acknowledged authority on production and manage ment an investigation and report on the affairs and management of the company in order to ascertain inter alia whether in the opinion of the reporting authority the general management and costs of production afforded by the company are such as under all circumstances the public is reasonably entitled to expect.
(2) Any such report made to the Minister under the foregoing sub-section shall be laid with all convenient speed before each House of the Oireachtas.
The Minister will remember that we had an amendment of this character on the Railway Bill. I feel that when you entrust large sums of money to Government boards which have none of the controls that ordinary companies have, it is necessary to have some check of the kind which I propose in this amendment. These are the essential controls that any private enterprise would have. If you cannot make profits in an ordinary business you go into liquidation, but these conditions do not apply to a board of this kind. It is given £3,500,000 of public money. First of all, it has not to pay interest on that money and then later it can get an exemption Order from the payment of such interest. The public has no means of ascertaining whether the management is efficient, unless an investigation such as I suggest is carried out. This is a new departure in production.
In England at present nationalisation is being applied to industry on a very large scale and this is practically on all fours with nationalisation. I feel that the Minister himself should be very anxious to have some means to satisfy himself, beyond getting returns and talking to people in connection with the company, that the management is efficient. How is the Minister going to satisfy himself as to its efficiency unless he gets some independent report periodically? This efficiency audit I assure you is not an affair of mine. It has been talked about a lot in financial circles. It is talked about a lot in America. I believe it is a practice which will continue to grow, and in the course of time, as these Government companies develop, and as some notorious case of inefficiency comes to light, some protection in the way of an efficiency audit will be insisted on by the public.
The Minister might be a pioneer by accepting the amendment. No harm can possibly be done by accepting it. I do hope the Minister is not going to bring forward the argument he used on the Railway Bill, that in order to conduct an examination of the working of the company, the auditor must have access to files such as those kept in the Civil Service. I did not say very much at that time, but I have thought very much over that argument since and it is a surprise to me that such an argument was used. A man who is highly experienced in production and management would not go into details or require files. He would come over and give a general report as to whether in his opinion the company was managed with reasonable efficiency in the interests of the public. What I am so worried about is that the Minister himself is not worried at this very dangerous departure in the use of public moneys. He should welcome some independent check on the affairs of the company just as he welcomed a financial audit.
A financial audit is of very minor consequence compared with the special efficiency audit. A financial audit is conducted merely to show that there is integrity in the administration of the company and to set out its operations in a clear manner, but here is a more important matter than the question of integrity in administration—namely, to ascertain is the company efficient or is it being gradually undermined by a sort of creeping paralysis. It is quite possible that such conditions may obtain in a company in which there is no test of profit or loss or no danger of ultimate liquidation because the company has the whole resources of the State at its back. I hope the Minister will see his way to accept the amendment.
I do not know where we are going to get the independent and acknowledged authority which the Senator suggests. I noticed that Senator Sir John Keane referred to him as "coming over."
I shall get you one.
I could understand any company employing an efficiency expert and telling that efficiency expert: "Go through our organisation, overhaul it and any changes you recommend in it we shall make." I could even contemplate Bórd na Móna doing that, but that is an entirely different proposition from what the Senator has here. He is proposing that such an expert will be appointed by the Government, sent in to reveiw the administration of this company and to prepare a report which will be published.
I wonder how many private companies could stand up to an investigation of an independent expert of this kind, preparing a report for publication? There may be and probably are a number of companies that are very efficiently managed and that would be able to stand up to any investigation. But, inevitably, once you hold the threat of such an investigation, with publication of the report, over the heads of the officers of the company, they are going to keep themselves right on paper.
Anybody who does not think that the inauguration of a system of that kind is not going, ultimately, to mean the introduction of Civil Service files into commercial administration, does not understand human nature. Of course, it will happen. As soon as you start the business of an investigation, with a view to the publication of a report, the people who have the responsibility of taking decisions are going to justify those decisions on paper, and, if possible, transfer responsibility for them to somebody else's shoulders. That is why I think it would be undesirable to have a provision of this kind inserted in the Bill. I can contemplate the possibility of Bórd na Móna employing efficiency experts and even "bringing them over" from the place where Senator Sir John Keane believes they can be found, and availing of their advice and recommendations in the construction of the board's organisation. I should leave such steps to the board, however, and I would not agree that the report prepared by such experts should be published because the threat of publication would inevitably undermine the efficiency and morale of the whole organisation.
I do not agree with the Minister at all that a person coming over would look at files. What would he want to look at files for? His job in coming over would be to see whether the organisation was right and what the results were. Files are not going to tell him anything. Take the case of a person coming over to make a report on the railways. Is he going to look at files? There are a number of tests that an expert would apply, and he could do that without looking at files. The Minister is not going to have this, and that is the end of it.