Amendments Nos. 1 and 2 are related and may be discussed together.
Local Government (Delimitation of Water Supply Disconnection Powers) Bill, 1995: Committee and Final Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
I move amendment No. 1:
In page 4, between lines 43 and 44, to insert a new subsection as follows:
"(4) Where the Court is satisfied that a consumer has made a reasonable effort to pay the charges for domestic water supply the Court shall waive the costs and expenses incurred by a sanitary authority in making a disconnection."
If a consumer's water supply has been disconnected high costs and expenses could be involved in reconnecting the supply. The purpose of the amendment is to ensure that the court, which would adjudicate on whether the supply should be disconnected, has the jurisdiction to waive the cost of disconnection and reconnection if it is satisfied that the consumer is making a reasonable effort to pay the charges.
The amendment would provide for situations where a consumer was in a position to give an undertaking to the court in relation to the payment of outstanding amounts. If a disconnection had already been made or permission for it had been granted by a court, the amendment would allow some consideration to be given to the consumer's undertaking and he or she would not be faced with huge bills.
I support the amendment as the entire ethos, thrust and purpose of the Bill is ridiculous. The Bill creates litigation and circumstances where people, who should never find themselves in the courts, will be encouraged to go to them. The Bill does not have the heartfelt support of the two major partners in Government or the most sensible public representatives. The amendment is logical if a Bill is to be passed which encourages people to go to court — people who should never find themselves in court.
The courts will probably ultimately take the view expressed in Senator Daly's amendment on this issue. However, it is better to remove the ifs and buts at this point. The legislation is fundamentally flawed but we should proceed along the lines proposed by Senator Daly and at least include some semblance of rationale in the Bill.
I also support the amendment and I agree with Senator Roche that it is crazy legislation. If the Government was not prepared to go the whole hog and abolish water charges, it should not have bothered to introduce this Bill.
In the Dublin local authority of which I am a member, the Bill has created confusion. For the first time since 1984, service charges were introduced in Fingal County Council by the Labour Party chairperson, which, to be fair, the manager tried to collect. The authority was controlled by Fianna Fáil from 1985 to 1991 and charges were not introduced. This had an effect on the finances of the authority but the Labour chairperson took a difficult decision and introduced water charges, which the manager went about collecting.
However, as a result of the change of Government in November 1994, it appeared the charges would be abolished. The net effect was that a collection rate of something in excess of £1.8 million was achieved. That has diminished considerably since A Government of Renewal was published, because the public still do not understand what this legislation is about. When the new Government was being formed they thought these service charges were to be abolished; it appeared that was the price of Democratic Left's participation in Government. Of course, that has not happened. The net effect is that my constituents face ending up in court. It was bad enough to suffer possible disconnection but, as Senator Roche said, they will now find themselves in court. Constituents have come to me and said they have not paid the charges this year because they believed they had been abolished. I told them that was not so. Service charges which were introduced by the governing group on Fingal County Council are legal and are collectable.
There is a further confusion — and we have asked for clarification from the Minister for the Environment, Deputy Howlin — about the practicalities of going to court for permission to disconnect the supply of water. Our local authority charges £85 per annum. I do not know of any court in the land where proceedings can be taken for less than £85. The cost of going to court, even if one were to take bulk or group action, will be high. The memorandum the Minister sent to the local authorities about this legislation was not clear — and it is still not clear to me — on who is liable for costs. It is at the discretion of the judge whether he will allow costs to the local authority and, if he does, the resident or householder will face legal costs. If the Minister reads the memorandum by the Minster for the Environment, he will see that it is not clear and that this is at the discretion of the judge. We have asked for clarification, but so far it has not been forthcoming from the Minister, Deputy Howlin.
Because of political processes and formations of Governments, people feel they have been conned and they are withholding payment of charges, particularly in Dublin. There is a serious campaign to support people who are withholding payment. They are holding collections and they say they will go to court on the issue. The whole issue is a nonsense. It would have been better for the Minister either to have supported his colleagues — there is a Fine Gael-Labour alliance running Fingal County Council — in their action and say it was a difficult action to take but the local authority needed additional finance and it was not available, or the Government does not support the concept of service charges and is therefore abolishing them. Neither position was taken and we are left with legislation which is probably unconstitutional in a number of places, and I imagine that was referred to on Second Stage.
To further fudge the issue, we heard a declaration that the system of funding of local government is to be reviewed. Both the Minister and I know that the previous Government had a similar——
Yes, it did and I have copies of the fiscal study that was carried out on local authority charges.
That study referred to redistribution.
It specifically referred to financing of local authorities but it was shelved. There is a simple solution and this has been said to me by my local authority. If local authorities demand autonomy, there is the possibility that they will be told to raise their own finance. If Government is to fully support local authorities to the extent that it did before the abolition of domestic rates, that will mean more money must come from central Government. That is the answer. Any firm of consultants can mess around with it. It simply means the Government has a choice: it can tell the local authorities to raise their own finance by way of charges for bin collection, recyclable waste collection and other collections or say that because our system of local government is so absolutely centralised, it is not given to subsidiarity. Was "subsidiarity" the buzzword in the Barrington report? I think it was subsidiarity. We talked about it but did nothing.
We are.
No, the Government is not. Fingal County Council was one of the results of that subsidiarity. What we have is exactly what went before — three miniature Dublin county councils with no increased functions and they are not the kind of local authority Dr. Barrington was talking about. If this Government goes the direction of requiring local authorities to bring people to court, then they are going to have to do something about costs.
A former colleague — a Minister for whom I have the highest respect — Deputy Owen, is trying to grapple with real crime and lawlessness and our huge drug problem. I do not want my constituents locked in gaol. They say that if they go the route of the courts, they will go to gaol. This is nonsense and stores up unbelievable problems for the Government in the future but, more importantly, for those who are members of local authorities, it is going to be hell.
I advise, even at this late stage, that the Minister withdraw the legislation until he gets his fiscal rectitude report. This Bill is nonsense and is only placating the baby member of Government, but the public have not been conned by the Democratic Left on this issue.
I do not understand how Fine Gael can support this legislation. I support the amendment. It defies logic that, within 24 hours, we have heard one Minister say it was to be welcomed that we devolve powers to the local authorities and let them issue casual trading licences — a Minister from the Democratic Left Party told the House yesterday evening how wonderful it was that local authorities could now make marvellous decisions and central Government was not getting involved — and now we hear a totally contrary position from the same Government — now the local authority must not make the decisions.
The local authorities have made sensible decisions on these matters over the years. They know the circumstances. They know the people who are willing to pay but are unable to; they know who is able to pay but is unwilling to do so, and they make that distinction. I know of a case where somebody had their water disconnected because they were unable to pay but when some payment was made, the water was reconnected without a fee.
For how long was it disconnected?
Is that relevant?
No, but I would like to answer Senator Enright.
To have a water supply disconnected from a home is serious.
This was a field supply; it was not even to a home. The person has no running water in their home. There has to be flexibility. The people who know best what is happening are the local officials and they are well in a position to make decisions. It will now cost more to collect the money than it will bring in. That, in any man's economic language, does not make sense.
Taking section 4 (2) as it is, because it is in effect addressed by the amendment, the point is that, at the moment, local authorities have discretion and the Minister and his Fine Gael and Labour Party colleagues in local government with us have all bitten the bullet and have introduced service charges. We all accept that there is no tooth fairy at the bottom of the garden who will service local government. At present, as the local service charges are constituted, there is flexibility. The local authorities can — and do — operate waiver systems and do so with a good deal of discretion.
There is a case in my area where a husband in the house takes a "principled" stand on service charges. He has done so to the point where the local authority turned off his water supply. He went out and turned it back on and then the local authority came along and turned it off. He turned it back on and then they turned it off and put pitch over the stopcock. The man melted the pitch with a blowtorch and turned the water back on. The local authority then dug up the footpath, causing several hundreds of pounds worth of damage, disconnected the ferrule, sent a plumber in for the day, cemented the whole thing up and put somebody sitting there to make sure the cement dried. His unfortunate wife came to me and to other public representatives, including one from the Minister's party, and told us that she and her husband were entitled to a waiver anyway. The waiver was granted and the whole process had to be reversed. The local authority could take the view that this unfortunate woman had a series of problems heaped on her head, not least a husband who was involved in principled decisions. I remember her saying that she left the solving of world problems to her husband and she ran the household.
Under section 4 (2), the judge cannot take the simple flexible decision that a local authority can take in those circumstances. I put it to the Minister — who is a man of eminent good sense with much experience at local government level — that the judge will not have the ability under section 4 (2) that a local authority has, with all its understanding of the frailty of human nature and the problems of cranky husbands. That is very bad law. We will create a situation where some character, like my constituent, hung up on principle and Guinness, talks himself into a cul-de-sac and cannot reverse out of it and we will then find ourselves in court and there will be no way in which common sense can intervene.
Senator Daly's amendment is an imperfect amendment to a bad piece of law. It would be simpler and better law to open a hole in this wall. We are creating problems for ourselves at local government level and for our constituents with this legislation. I am not speaking from a high moral ground because our party scored political points on service charges——
Hear, hear; the Senator should not forget that.
I am on record several times as saying that it is time all the political parties came to their senses.
Fair play to the Senator.
The French Minister for Finance at the time of the French Revolution said that that which Government gives, Government must first take away in greater measure. The reality is that this is fundamentally stupid legislation which will raise the cost of collecting service charges. I do not know if the Minister has done any calculations but I suggest that this will add very considerably to the administrative overheads. We all know that because of politics people were discouraged from paying service charges but they have been educated to pay them.
I am not claiming any righteous mantle — I will leave that to other parties, particularly Democratic Left who seem to be on every side of every fence — I am simply saying that we are storing up problems for ourselves. The amendment may be imperfect and not as the Department would wish but the Minister should look at the logic in it. I do not believe this would be the choice of the Fine Gael or Labour Parties if it was left to a straw poll of the Members of this or the other House. There are flaws in this law, of which the inflexibility in section 4 (2) is a major one. Although the next amendment may be tongue in cheek, this one is not intended to score a point. The Minister can see the logic of what is intended.
This legislation all came about because of the manifesto issued in 1977——
Can the Senator remember back that far?
We kept the parity between the rate support grant until Labour came into Government——
(Interruptions.)
Check the record.
Senator Enright, without interruption.
The Senator is a very experienced lady but——
Let us have a statement on behalf of the Law Society.
In 1977 it was decided to do away with rates.
Acting Chairman
We do not want to go back in history; the Senator should speak to the amendment.
In 1977 it was decided to abolish rates on domestic households and car tax. Now it has been decided to impose service charges. However the present Opposition decided about ten years later that they were opposed to these water charges. They later changed their minds and when they were in Government they were very much in favour of water charges. Now, I am not too sure whether they are for or against them.
What is the Senator's position?
At least Senator Roche made an open confession here this afternoon and I compliment him.
It is very important for families to have proper water supplies and people should be given every opportunity to make their case before their water supply is disconnected. I have seen cases where water supplies have been disconnected from homes with young babies, some of whom were ill. On occasions I felt it was grossly unfair and made strong representations to local authorities to prevent the disconnection of the water supplies to those homes, but to no avail. Those decisions were taken at local authority level.
In a number of instances the families concerned were unable to pay the water rates and had applied for waivers which were refused. Local government officials make arbitrary decisions to disconnect water supplies. Someone living on a very small social welfare income who is unable to pay the water rates and whose waiver is refused——
It would not be refused.
Such people do not have to pay.
Acting Chairman
Senator Enright, without interruption.
They have to pay a certain amount. Where people have been refused a waiver and the local authority decides to cut off their water supply, an independent person should examine those cases. I have great faith in our courts and the vast majority of judges are fair. If somebody makes a case in court — unlike Senator Dardis, I do not think this is funny.
I have a very healthy scepticism of the law.
If a person makes a genuine case that they applied for a waiver and were unjustly refused, I am certain that costs will not be awarded against the household, which is only fair.
Somebody should have the right to make a decision. A court is much fairer where the case is argued in public, the local authority has to fight its corner and it is up to the judge to make a decision. I do not think costs will be awarded if that will cause hardship. I think the judges will go a long way towards meeting Senator Daly's concern.
What we are doing here is a political circus. It is not Democratic Left who are to blame but the Opposition. Fianna Fáil decided to do away with car tax; suddenly they brought it back and now a person's car is taken away for not paying their car tax. We have gone full circle.
It was the Senator's Government who brought in the legislation.
I ask Senator Daly to withdraw his amendment.
Acting Chairman
I ask Senators to allow the Minister of State to make his contribution which might solve the problem.
As I said earlier, I have great difficulty with this Bill. It is, as Senator Enright said, a political circus. I do not know whether judges can do what Senator Daly is proposing because I understood that the local authority has the power to recover charges in making a disconnection under the 1962 Sanitary Services Act. Will we have to change that Act to allow them to do this? Senator Enright talked about Fianna Fáil abolishing rates in 1977 and Senator Cregan said that Fine Gael would do likewise by reducing them by 25 per cent per annum. I thought he intended to make the same point as Senator Enright but, in case somebody was getting credit for abolishing rates, he wanted Fine Gael to get some.
We proposed to reduce rates by 25 per cent per annum.
I am not disputing that but it is extraordinary that Senator Enright takes a different view as he and I are from the same area. Last year Offaly County Council cut off the supply of two people and Laois County Council cut off one person's supply, none of whom was ill or women with young children. In the two cases in Offaly, after several attempts were made to seek payment from the people involved, officials went to talk to them. In one case the door was slammed in their faces; in the other the person was abusive. In Laois the person who was cut off had given the county council cheques which had bounced or which he had stopped.
I cannot understand how Senator Enright believes that going to a local authority, perhaps accompanied by their local councillors, to explain their circumstances to officials in privacy can be worse for people than going to court. Most people find it difficult to go to court because the legal system is alien to them. It is not alien to Senator Enright because he is used to court in his work as a solicitor. Some judges make odd decisions and it would be easier for people to go to their county councils, on their own or with their public representatives, to work out arrangements with officials.
Arrangements can be devised whereby people can pay £2 or £3 a week, even in the case of people who have defaulted on arrangements they made in the past. County councils are willing to do this. It is an insult to officials in county councils and to county managers to say that judges can handle the situation better than they have handled it. I compliment local authority officials and representatives who try to sort out genuine cases. Dragging the matter into court is a disgrace.
The Government should put proposals for a proper system of financing for local government before the House; Members on all sides want this. My party will support the Minister if he does this because we recognise the great difficulty with regard to financing local authorities. The public also recognises this problem; people are not fools and they know that if they want something done in their area it must be paid for. There is no point in listening to people who have principles on this matter because the only principle they seem to have is they want everybody else to pay for it.
Senator Daly asked earlier about the Dublin water supply study but I did not have the information at the time. The contract was awarded in January to a French company, which is being assisted by a Cork company, MC O'Sullivan and Company Limited. The study will cost £0.5 million and will look at the water supply and future demands for the greater Dublin area. The report is expected to be completed by the end of 1996.
There were 910 disconnections carried out by county councils and county borough corporations last year. Many authorities did not carry out any but as many as 265 were carried out by others. Senator Dardis's area is an example of the latter. Donegal County Council was also active in disconnecting supplies. This poses the question of the uniformity of approach of authorities and must be addressed.
I will not accept amendments Nos. 1 and 2. Senator Daly indicated his concern about the use of the courts to adjudicate on disconnection cases. However, the impact of amendment No. 2 would be to require the courts to become involved in the issue of reconnection, apart altogether from the issue of disconnection, and both would have to be considered separately. A court will only grant a water discontinuance order under section 3, when they are satisfied that the default was not due to hardship.
It is reasonable to conclude, therefore, that where a water discontinuance order has been granted by a court, the consumer had the resources to pay his charges. It is also reasonable to conclude that the person should be responsible for paying the disconnection and reconnection costs, which should not have to be paid by the local authority and compliant water consumers.
Senator Roche said that Bill encourages the public to be even more litigation conscious than they are now. However, he is supporting an amendment which proposes further court action in the case of reconnections. He cannot have it both ways.
Senator McGennis said it is not clear from the Bill who will pay the costs. If a member of the public loses a case and the court awards costs in favour of the local authority, it is clear that this person will pay the costs. This will be a major disincentive to people who know they can afford to pay charges and that the court will find against them.
In Dublin there is a huge campaign——
The Senator made the point that this will encourage a non-paying campaign.
It is ongoing
My Department has done a survey for the first few months of this year which shows the opposite is happening. In some areas the payment of service charges increased by 50 per cent between last year and this year.
Not in Dublin.
Countrywide there is a greater response to payment of service charges this year compared to the same period last year. Senator Roche and Senator Honan asked about reconnecting. Local authorities, having disconnected the supply, can, without recourse to the courts, reconnect it at any time. A judge is not needed to bring about a reconnection.
I do not question the Minister's bona fides because we are old friends but he is mishearing or misinterpreting what I said. Section 4 (2) states: "Where a supply of water is disconnected pursuant to a water discontinuance order, the cost of reconnection shall be payable by the consumer and such cost shall include the cost of discontinuance."
I agree that people should pay for the cost of their folly but that is not the point I am making. The minority party in Government is trying to create an illusion in people's minds and this is what the Bill is about. I refer to Senator Enright's specious contribution. Regurgitation of partial and grotesquely inaccurate views of history is not a useful contribution.
Here comes the full 100 per cent correct edition.
Waivers of up to 100 per cent of the amount of charges are allowed. In most local authorities there is a threshold below which waivers are not granted. Wicklow has one of the highest levels of service charges and the waiver does not go below £25.
When people are hung up on some principle or silly intransigence, the flexibility which exists in local authorities is not present in the courts. It is extraordinary that Senator Enright, with his years of experience as a public representative, suggests that courts are more in touch with the people than local authority members and staff. When Senator Enright has the opportunity to reconsider what he said, he will realise not only that it was nonsense but it was far removed from reality. For all the flaws and warts in local government, there is a great amount of common sense there. There is also a considerable amount of common sense in all parties.
I again ask the Minister to consider the use of "shall" as opposed to the usual use of "may". "Shall" seems to prevent any latitude for judges. These amendments may not be the most perfectly worded, but the inclusion of "shall", as opposed to "may", which allows the court to make the order, seems to be the problem in this regard.
I have no problem with any member of the public paying the full cost of his folly. A public representative worth his salt should not try to argue that we should mollycoddle defaulters in all circumstances. However, I am worried that a judge could say that the inclusion of "shall" in section 4 (2) means that he may have no latitude. The section would be worded better if this latitude was built into it, but the use of "shall" removes the latitude which Senator Enright suggested might exist within the Judiciary. Maybe the Minister would be able to put my mind to rest on that matter.
I am a member of a local authority that has had many problems in regard to water service charges. I agree with the other speakers that people in local authorities who handle the waiver forms have some common sense. However, I do not understand the argument made as regards "may" rather than "shall".
This Bill makes a person feel he should not pay water charges. A local authority knows if a person cannot pay them. This stand is being taken on principle. In Cork, some people went to prison for this principle. They felt this service charge was a second tax. This did not happen anywhere else. There is now tax relief on water charges and I have always said this should have been granted. Full tax relief should be given on any moneys paid to local authorities. When a person pays their commercial rates to a local authority, he is entitled to any tax benefits and reliefs that may accrue from it.
Senator Roche wants to change "shall" to "may" in section 4. However, is it not true that this and other sections deal with a person who is in court because of a principle rather than a payment? It is not the case that they cannot, but rather will not, pay.
The law does not make that distinction.
Do we all agree the waiver system is fair? I have dealt with it at local authority level and people accept that they will have to pay 25 per cent if they earn £120 a week, 20 per cent if they earn £110 a week and nothing if they get £100 a week. The elderly do not pay water charges unless they have a second pension.
Some local authorities are disconnecting water supplies more than others. We did not disconnect any service in Cork city. The Minister has the major responsibility to ensure that nobody is without water at any time unless the court says so. If people refuse to pay the water charges on principle, why should we defend them? Senator Roche said these people should pay for their folly but he also says that "shall" should be changed to "may" in section 4 so the judge can be given some latitude. The judge already has the right to decide if he feels the person has a case.
We are dealing with a matter of principle, with people who want everybody except themselves to pay. This Bill is relevant to those who do not want to pay charges on principle. I do not for a moment deny that they may have a case. I do not want to pay water charges but I have to pay them. The vast majority of our people pay their water charges. Some 92 per cent of people in Cork city paid them last year. We still have problems with some members of the public who are well able to pay these charges — many of them work in Government, State and semi-State bodies — but will not do so because they consider it a second form of taxation. They may be right but we, as legislators, will not sanction another form of collection. We must ensure there is no rapid deterioration of the infrastructure in our cities and towns. Another previous Senator said it is about time local government was restructured. Of course it should be restructured and the Minister has the responsibility to do it.
Senator McGennis said the previous Government was involved in restructuring local government. I was not aware of that. The commission report said there should be restructuring, but the Government did not implement it. However, this Government favours restructuring and a special committee has been set up to do that.
Do we really think that the wording in section 4 should be changed from "shall" to "may" to satisfy people who do not want to pay these charges?
As the Minister said in his Second Stage speech this is an emotive issue. If a public meeting was called on service charges in any county tonight, there would be a packed hall.
I agree with Senator Enright. Politicians of all parties are responsible for this mess. All of us knocked on doors during local elections, particularly in 1985, which was my first election, with our manifestos telling people we would abolish service charges. Indeed, some political parties did it. We did it in the old Dublin County Council and Dublin Corporation is still doing it. It depends on the type of resources available. All political parties in all local authorities had to bite the bullet and vote for these charges. I have never voted for service charges to date, although I may have to do so in the future.
I told the Minister this legislation is provocative. Senator Cregan mentioned Cork but I am familiar with Dublin. There have not been service charges in Dublin city or county since 1985. Their introduction is new in Dublin and we had to get the public to accept them. I did not vote for them and I am not making any case for them but the local authority managers are gingerly trying to convince people to pay them. I do not think Fingal County Council has disconnected any water supply yet but it tried to re-educate people that this was an additional charge. It produced good literature telling them the services the local authority provided on their behalf and that it was looking for an additional financial contribution.
Acting Chairman
The Senator is arguing for and against taxation. I ask her to discuss the amendments.
Managers in the local authorities were coaxing the public to pay without the threat of disconnection.
It something is not broken, why fix it? We all know why it is being fixed. It is a face saving mechanism for Democratic Left and nothing else. The Minister said this is not to call into question the manner in which disconnections have been carried out.
I said there was not uniformity.
The Minister is not calling into question the manner in which it was done. It does have to be uniform to work. The Minister has now added fuel to a huge campaign in the Dublin area. I presume this is also happening in Cork. There is a militant wing of the Labour Party, an offshoot of the Democratic Left or a group which did not join Democratic Left, in the Dublin local authority which is mounting campaigns of civil disobedience and telling people not to pay. It is collecting a fighting fund and it has told people that it does not matter what they do because it will go to court with them. As Senator Roche said, these people will turn the water on again or they will sit on the stop cocks and not allow the local authority to turn them off. It does not matter if the Minister tells them they will be liable for costs. This legislation has done more to cause civil disobedience and anarchy than service charges would ever have done.
That is not true.
There has been a huge reduction in the rate of collection by the Dublin local authorities since November 1994. This has nothing to do with the change of Government, but with the fact that Democratic Left said it would not go into Government unless it got assurances in this regard. However, it only got Mickey Mouse legislation which will be remembered in the next local and general elections. This will create mayhem and havoc. I feel sorry for the Minister for Justice, Deputy Owen, because she will be persecuted by law abiding citizens who will be locked up because they participated in campaigns of civil disobedience organised by pseudo-anarchists outside the political system.
Democratic Left has not contributed to this debate and I doubt if Senator Sherlock will come in now. His absence is significant.
This amendment is not designed to deal with those who have a principled objection to paying water charges. The law will deal with such people. This amendment is designed to deal with the person who is trying to cope with payments, but who is finding it difficult to do so. Section 4 (2) means that a judge will be constrained in that he will not be able to tell a local authority to reconnect the person's water supply. He will not have any choice in the matter because he will be bound by this subsection to make the person pay the disconnection and reconnection charges, which could be £400 or £500. Last week I saw a bill for £600 for water reconnection charges. I do not know what reconnection charges are, but this is a sizeable extra burden on a person who is making a reasonable effort to pay. However, section 4 (2) means that a judge will not be able to deal with this situation.
If a person makes a reasonable attempt to pay, they will not be taken to court.
They will be taken to court if there are arrears and this is a fairly long procedure. If someone goes to court because of their circumstances, the judge must make a disconnection order. He will not have any choice as regards disconnection or reconnection charges. Does the Minister understand my point?
I do not understand what the Senator is saying.
The Minister said there was a contradiction in what I said about the court not being the place to deal with such issues. I still believe it is not the place, but we must deal with the contents of this Bill. I did not draft this Bill. If I had, I would not have the courts involved with home assistance officers, social welfare officers, deciding officers and investigating officers. The Minister is turning the court into a social welfare office. We are trying to improve this legislation. I am sure the Minister will get advice between this and Report Stage that there is a case to be made for people with genuine grievances. The court has no choice but to issue an order to disconnect supply to these people, which will place a further burden on them. This Bill is not designed to deal with the principled objection to paying water charges. We are not being mischievous about this issue.
Can we dispose of the debate on what is reasonable and unreasonable? The county council could decide that a person had not made a reasonable effort to pay. However, what it thinks is irrelevant; it is what the court decides which is relevant and the court could decide that what the council thought to be unreasonable was reasonable. The amendment applies in those circumstances.
Reference was made to how well Kildare features in the disconnection league table. The reason is an organised, orchestrated campaign to stop people paying their water rates. At successive meetings of Kildare County Council, Democratic Left and the Labour Party voted down service charges when other parties voted them through.
When this Bill is enacted there will be fewer disconnections because county councils will not want the expense and effort of going to court. We will then be told that this legislation works because there are fewer disconnections. Democratic Left will tell us the legislation is wonderful and has achieved its objective.
I look forward to future legislation. We will have legislation for Telecom Éireann, ESB and Bord Gáis Éireann. By the end of the year we could introduce consolidated legislation which will put it all together.
Senator Cregan left a question hanging in the air to which the answer is yes. It may have been lost in some of the obscure arguments.
The Minister argued that the situation we foresaw where someone could find themselves in court would not happen. Although the Minister is a humane person who wishes this would not happen, a person could easily find themselves in such a situation. I will give the Minister a specific example of a case which I dealt with recently and which I passed on to the Minister for Justice, Deputy Owen.
This case concerned an unfortunate woman who was going through the process of separation and who did not pay her television licence fee. When the summons was sent to her, she tore it up in fright because she could not handle the situation. She also ignored a summons to court and when the court action came up, she could not attend. She was then ordered to pay a fine of £500. However, she could not pay that amount of money, so she ignored it. A garda then served her with a notice — she was looking after five children — to go to prison. The garda, reflecting the humanity which the gardaí show on these occasions, suggested that she should get in touch with one of her local representatives. She then approached me. The Minister for Justice, to her credit, saw the humanity of the case and was able to allow flexibility. This happened before political correctness damned ministerial intervention in this area. I can foresee cases where people, who should not be in court, will find themselves in court for whatever reason — perhaps, because of an intransigent partner or fear of facing reality. The use of the word "shall" will bind the courts.
I am not looking for a charter to let dodgers through. I have taken the lash about service charges and I make no apologies to anybody. There cannot be any kind of State-run service without somebody paying the bill. While service charges are not the best way to go about it, I cannot propose a better alternative so I had better keep my mouth shut about it.
The reality in political terms is that we have people who will continue to beat the drum. The Minister of State, Deputy Stagg, was one of them in Kildare. He was banging the drum and arguing against service charges while Minister of State at the Department of the Environment, the ultimate irony of political life.
I simply suggest that the word "shall" is excessively inflexible, which we will regret in due course. Nobody wants to create a taxdodgers' charter. What Democratic Left will do we do not know because, as usual, they will hide their wisdom under a stone until some time in the future when it becomes politically wise to unveil it. I will not push the argument any further than that.
I am puzzled about a point which the Minister made. He said that an average of 92 per cent was collected at present.
I did not say that.
It is 98 per cent in Tipperary. If I had a small industry and my water charges were about £2,000, would I not be a terrible fool to pay it because it would be two years before it would come to court? The Bill encourages people not to pay service charges. As a result, cash flow will dry up and maintenance services across the country will be in chaos.
I want to correct a point made by Senator Enright. I was surprised he made it as he has a legal mind. He said Fianna Fáil did away with rates. That is not true. The courts — the second tier of Government with which we seem to have to deal in recent years — did away with rates on agricultural land. It was unfair of the Senator not to complete his sentence and say that it was the Supreme Court——
I thank the Senator for his assistance.
The Senator knew quite well but he wanted to put on the tar without any cracks in it. The Senator's party made promises during that election that they would remove rates over a period of years. If the Senator wants a copy of his party's manifesto, he can call to my office and I will give him one. If he wants to do a little soul-searching, the sins are there.
It was the courts that removed the base for agricultural rates on land which constituted an income for local authorities.
Rates on agricultural land, not domestic rates.
Acting Chairman
On the amendments to section 4, please.
It seems that the Minister does not see the danger in this Bill. It will open a floodgate. We will have no cash flow. It encourages responsible people, who have being paying charges, to see it as a free for all. That is how Democratic Left is trying to operate in Government.
I thank Senators. As a contemporary historian, I have learned a great deal in the course of this debate.
Stick around. There is plenty more of it.
Some of it may even coincide with what the historical truth will turn out to have been. I am grateful for that.
I have the luxury of being able to be opposed to charges for domestic water supply in principle but I am not a member of a local authority. If I were, I might not be able to think of a better alternative, like many Members.
I seek enlightenment because I am sympathetic to the principle behind the amendment. I am genuinely confused, perhaps partly because of my own obtuseness, and partly because of different emphases in the debate.
Amendment No. 1 states, "Where the Court is satisfied that a consumer has made a reasonable effort to pay the charges..." and the Minister gave the impression — and this will determine how I vote — that where a court was so satisfied, it would not authorise the discontinuation in the first place. Is that a correct interpretation? If it is, what is the purpose of the amendment? Is it because there can be different subjective interpretations of what constitutes a reasonable effort? Even if that were the case and the court assumed there had been a reasonable effort, presumably it would not allow the imposition of the charge. Even if there are differences between judges, at least in any particular court there would be consistency in that respect.
Am I correct that a disconnection would not have been imposed in the first place if the court was so satisfied? If that is the case, what is the purpose of the amendment? If it is not the case, I would be in favour of the amendment.
Senator Lee has got to the nucleus of the problem. The individual would not be in court at all unless the local authority felt the person was capable of paying the charge. Unless the court is satisfied that the person is being unreasonable, can pay and will not pay, the court will obviously not make a decision to disconnect. The court will only make a decision to disconnect where it is satisfied that the person has the ability to pay and will not pay. Therefore, the subsequent costs of disconnection will not be passed on unless the person's supply is being disconnected.
That is hypothesis.
It does not arise unless the situation arises where the court decides the person has been unreasonable all along the line and confirms the attitude of the local authority. The Local Government (Sanitary Services) Act, 1962 uses the word "shall" in the relevant sections also. I am not prepared to accept the amendment.
Democratic Left should be ejected from the Government.
I would be prepared to consider withdrawing these amendments if I got an assurance from the Minister of State that he will look carefully at the matter and amend the legislation if he finds on close examination that there may be a problem, which he has not foreseen.
I cannot see a problem arising. If the court decides that a person cannot pay, it will not give an order to disconnect. If it decides that the person has the ability but that for some other reason — political or whatever — is refusing to pay, the court will decide to issue an order to disconnect and the subsequent cost will be passed on to the person. As I said earlier, that is the greatest disincentive of all to somebody flouting the law.
The Minister said there was no uniformity about disconnection. My understanding is that there is no uniformity about the ability to pay. Fingal County Council has a generous waiver scheme. Perhaps that is not as generous as the one which operates in Kildare where people are not cutting off supply to consumers. How does a judge decide someone has the ability to pay but is not paying because there are hardship causes etc.?
The combination of the common sense of the local authority and that of the Judiciary will insure the public get fair treatment.
It sounds like we are in trouble.
No. I do not think so. There are two safeguards. The safeguard at local authority level is the common sense of the officials. In most cases, they know who is codding and who is genuine. If it goes that step further into the courts, the Judiciary will have the common sense and good judgment to spot a valid case. The greatest incentive to pay is the cost imposed on the person found not to have a genuine case.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 4 agreed to.
Sections 5 to 7, inclusive, agreed to.
Schedule agreed to.
TITLE.
Acting Chairman
Amendment No. 3 has been ruled out of order.
I am disappointed with that decision because the amendment represented the kernel of this Bill.
Amendment No. 3 not moved.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question, "That the Bill do now pass", put and agreed to.