An Bille um an bhFichiú Leasú ar an mBunreacht (Uimh. 2), 1999: An Tuarascáil agus an Chéim Deiridh. Twentieth Amendment of the Constitution (No. 2) Bill, 1999: Report and Final Stages.

I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded.

Tairgim leasú a 1:

I leathanach 7, líne 5, "le" a scriosadh agus "leis an" a chur ina ionad,

agus

i leathanach 7, líne 26, "a" a scriosadh agus "the" a chur ina ionad.

I move amendment No. 1:

In page 6, line 5, to delete "le" and substitute "leis an",

and

in page 6, line 27, to delete "a" and substitute "the.".

I tabled this amendment following our discussion on amendment No. 1 on Committee Stage. The growth of other organisations in local development means we must make a distinction between those which participate in the development of their communities and those which are democratically elected. We want to ensure that the democratically elected members of councils are recognised as the democratic representatives of their local communities.

We might overcome the various difficulties of which the Minister was advised if we agree to say that the State recognises the role of local government in providing "the forum" for the democratic representation of local communities. The other organisations play an important part but the forum, which is democratically elected and accountable to the people once every five years, must be recognised as the premier body for public representation. The Constitution would recognise it as such under the terms of this amendment. I appeal to the Minister to consider the amendment carefully.

Mr. Ryan

I second the amendment. I will not dwell on the matter because I was not here for the substance of the debate. A valid point has arisen throughout this debate, which has been represented to me by members of both Houses who are members of local authorities, that partici pation is both welcome and necessary and the extension of participation, through the various structures in place, is welcome. We should not allow the central role of democratically elected institutions, in which people have the right to participate and to which people have the right to seek to be elected, any more than the partnership structures that exist in all sorts of socio-economic areas in the State, to become a kind of parallel institution to the Houses of the Oireachtas. Institutions of participation, however important, should never be seen as an alternative to or a parallel form of local government. Senator Gallagher's amendment would make that point simply and cogently. The provision would read "The State recognises the role of local government in providing the forum for the democratic representation of local communities . . . ".

What forum could there be for the democratic representation of local communities other than local government? The formulation of the constitutional amendment seems to imply that there could be other equally valid fora for the democratic representation of local communities. That could not be. There cannot be two alternative democratic fora purporting to do the same thing. By definition there can only be one Oireachtas. There cannot be two fora for local democratic representation of local communities.

The amendment, simple as it is, is profound and restates the primacy and universality of institutions that are open to everybody, to which everybody can be elected and to which everybody can seek election and which are the only genuine democratic representation of local communities. All other institutions are contributors to that and facilitators but cannot be the forum itself.

I understand the point made by Senator Gallagher. There could be a hullabaloo about the difference between "the" and "a" forum. It is important to emphasise that we are talking about representation by one particular group on behalf of the communities. The State recognises the role of local government in providing "a" forum. Why should we say "the" instead of "a"? The reason is that there would then be only one forum –"a" forum means there could be another forum, another organisation or another group at any time who could claim it was entitled to representation. We should specify in the Constitution that "the forum" we are talking about is the "the forum" referred to in the Constitution, not "a forum", which might imply that there could be two different types of forum.

Article 28A.2 provides: "There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution,". This is the protection relevant to "the" rather than "a" forum. The word "may" is always used in legislation but "may not" is frequently used by Ministers and authorities. That is the reason for using the word "may". Senator Gallagher made the point that "a forum" represents a particular forum. The reference can be to only one forum if we say "the forum". By using the word "the" rather than "a" it consolidates the provision and prevents someone else claiming that they are entitled to represent. Arguments are being raised about to whether there is a danger that the elected members may not get the authority to which they are entitled. If we say "the" rather than "a" forum nobody else can question them.

I ask Senators to look at the whole of Article 28A. It deals clearly with elected local government. I do not understand the concerns expressed. Deputy Gallagher seeks to amend section 1 of Article 28 by substituting "the" for "a" in relation to the word "forum". The wording of section 1 has been cleared by the parliamentary draftsman and the Attorney General's office. The entire article 28A must be read as a whole. As I indicated, the elected members are to the forefront. The Article provides for elections to local authorities. Clearly it is the elected councils which provide the central role for local government. I am advised the wording is sound.

With all due respect to the draftsmen, it is not their job to make the law: that is our job. Their job is to help us draft proposals and they have done so. It is our job to improve them. The point I made has been strongly made by Senators Dino Cregan and Ryan. If we are to put into practice all the talk about the primacy of the elected members, it should be easy to say that the elected members, operating as the council, are the form for local representation in the area they serve. This is constitutional law.

We know what the courts can do to the Constitution. We have the example of the pro-life amendment where one thing was intended and the interpretation led to something which the proponents had been trying to stop. The draftsmen do their job. We make the law and somebody else must interpret it. We must minimise the opportunity for any difference or division in comprehension, or gaps. We must state clearly what we want – that the elected members provide the forum for democratic representation. The Constitution should say that simply and clearly. The Minister could make a contribution not alone to recognise the valid points made but to put into practice what he said about the primacy of elected members by saying they are the forum for democratic representation in their areas. I appeal to him to reconsider and to accept the amendment.

Cuireadh an cheist, "Go bhfanfaidh na focail a thairgtear a scriosadh", agus faisnéiseadh go rabhthas tar éis glacadh leis.

Question, "That the word proposed to be deleted stand", put and declared carried.
Faisnéiseadh go rabhthas tar éis diultú don leasú.
Amendment declared lost.
Tuairiscíodh an Bille gan leasú agus ritheadh é.
Bill reported without amendment and passed.