Seanad Éireann debate -
Wednesday, 26 Feb 2003

Vol. 171 No. 12

Local Government Bill 2003: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for the Environment and Local Government (Mr. Cullen)

This is a short Bill. Its chief effect will be to end the dual mandate from the next local elections in 2004 onwards. It will also continue the current long-standing arrangements for the election of the cathaoirligh of county and city councils. This will be done by repealing the provision in the Local Government Act 2001, which would have introduced new arrangements for elections from 2004 onwards. While the Bill may be short, it will have significant implications at two levels – for the national Parliament and local government now recognised in the Constitution as a fundamental element of our democratic system.

The ending of the dual mandate has been advocated by a range of interests for some time. The Barrington report in 1990 recommended that simultaneous membership of local government and the national Parliament should end. Legislation passed the following year took the first step in this direction by disqualifying Ministers and Ministers of State from local authority membership. The second report of the Commission for the Status of Women also recommended the ending of the dual mandate as an opportunity for women to enter local government. Currently, only about 16% of councillors are women. Other bodies such as the Chambers of Commerce of Ireland, the National Youth Council and the General Council of County Councils have also called for the ending of the dual mandate.

The Local Government Act 1994 disqualified the Ceann Comhairle, the Cathaoirleach of the Seanad and MEPs from local authority membership. It also provided that Members of the Oireachtas who were councillors could not, from the 1999 local elections onwards, hold the position of cathaoirleach or leas-chathaoirleach of a local authority. The White Paper, Better Local Government, committed the Government to consider further action after the 1999 local elections.

The Bill before us today, therefore, is the culmination of a considered process which has been moving progressively in this direction for well over a decade. It is also worth noting that it has been the stated policy of almost all political parties in this House that the dual mandate should end. Reflecting this, the Local Government Bill 2000 contained similar provisions to those before us. However, as Senators will be aware, they were deleted from the Bill during its passage. This was done to sustain the support of certain Deputies on whom the Government then depended for support in implementing its overall programme of economic and social progress.

The reality is that the demands of local government have greatly increased over the past ten years or so. The range and complexity of local government functions, be they in the field of planning, infrastructure, housing or environmental services, have altered dramatically. Local authorities now have a greater role in promoting social inclusion and in local development initiatives generally. This is reflected in part in the varied and wide range of bodies to which local councillors are now appointed, which include Leader groups, port companies, health boards, county enterprise boards, county development boards and vocational education committees. Local councils now play a significant role in local community development groups, tourism promotion and tackling social exclusion. Such involvement is vital to provide for a more co-ordinated approach to local development and proper democratic input to meeting the wide rage of local community needs.

At national level there has also been significant and parallel change. In recent years the parliamentary committee system has continued to develop and provide the opportunity for Members to have a much fuller role in the consideration of legislation and the overview of Government policy generally. The demands on Members' time have increased correspondingly. This is a trend which will undoubtedly intensify as Parliament evolves its key role under the Constitution, namely, "the sole and exclusive power of making laws for the State".

Against this background, it is clear that the difficulty for any individual of properly and simultaneously fulfilling both national and local roles can only become more acute in the years ahead. Any substance from gold to gossamer, if spread too thinly, will eventually become patchy. We cannot allow this to happen. As elected representatives of the people, it is our duty to ensure they are efficiently served within all the tiers of our democratic system.

The ending of the dual mandate is an important change in the Irish context. For the first time since the foundation of the State local government will be in a position to develop its separate role within our democracy. Council chambers will no longer be subject to inappropriate external constraints such as national parliamentary timetables which heretofore have determined such basic matters as to when local authority meetings can take place.

As already indicated, the Bill repeals legislative provisions currently in place which provide for the introduction of direct election of cathaoirligh of county-city councils in 2004. The Bill provides, therefore, that in 2004 the cathaoirleach will be chosen by the newly elected councillors from among their number as in the past. The ending of the dual mandate will bring about substantial change and, with the normal turnover at election time, there will be a large influx of new entrants to local government. These changes need time to bed down. The issue of the cathaoirleach's election and role will be considered in the light of experience of these changes and others in prospect.

Apart from the Bill now before us, further actions are being taken to develop our local government system. A major independent study of local government funding will be undertaken and further measures to improve local authority performance and the role of the elected council developed. The review of the strategic policy committees, already well under way, will also feed into this process.

It is my aim that over the lifetime of the Government we will see a major change agenda carried forward for local government – change which will underpin its democratic roots but with an emphasis on effectiveness and efficiency; change which will see local government bringing together the various State, community and other interests at local level. Crucially, I envisage that this change will see local government at the helm of local initiative and as the key focus in supporting economic and social development at local level.

I will turn now to a more detailed look at the provisions of the Bill. Section 1, for the purposes of the Bill, defines the principal Act as the Local Government Act, 2001.

Section 2 inserts a new section 13A in the principal Act, the effect of which is to disqualify Oireachtas Members from being elected or co-opted or from being a member of a local authority. Section 13 of the 2001 Act already sets out a number of disqualifications. For example, Ministers, Ministers of State, MEPs, EU officeholders, judges, gardaí etc. are all disqualified from holding local authority membership.

Section 3 will allow Oireachtas Members, who so request a local authority, to be supplied with notice of meetings and agendas. Additionally, the Minister can issue guidelines to local authorities as to their dealings with Oireachtas Members. I envisage that such guidelines would be prepared and issued later this year. These will provide that Oireachtas Members continue to receive a satisfactory level of service in carrying out their representational role.

Section 4 provides for various amendments to the Local Government Act 2001 consequential on the substantive changes to the Act made by the Bill affecting the dual mandate and direct election of cathaoirligh. The discontinuation of the arrangements for direct election of cathaoirligh of county-city councils is effected by section 7 by way of the repeal of Chapter 3 of Part 5 of the Local Government Act 2001. The amendments set out in the Schedule are largely consequential on that repeal and the insertion of the new section 13A. The amendment to section 167 of the 2001 Act, however, clarifies that specified provisions of the new ethics regime apply to all local authority employees. These are a duty to maintain proper standards of integrity, a prohibition on seeking or accepting rewards arising from one's duties and a code of conduct. Section 5 amends section 97 of the Planning and Development Act 2000 to insert a minor amendment omitted by the Planning and Development (Amendment) Act 2002.

Section 6 amends the Local Elections Regulations, 1995. These amendments arise primarily from section 14 of the Local Government Act 2001 which prohibits multiple membership of local authorities, apart from membership of a county council and town council. For example, simultaneous membership of two or more county councils, or a city council, and a number of county councils is prohibited. The effect of the amendment to the regulations is that if a person stands for and is elected to a number of different local authorities, he or she must choose one and a casual vacancy then occurs in the others. Where the person does not so choose, he or she is deemed to have been elected where he or she received the highest vote. These arrangements mirror those already in place for many years which deal with election of the same person to a number of local electoral areas within the same local authority. As mentioned, the primary effect of section 7 is to repeal the provisions of the 2001 Act relating to the direct election of county-city cathaoirligh.

Before concluding I must digress and refer to the amendment opposing the Second Reading of the Bill. This would seem to be an opportunistic move by Fine Gael, though in reality it is a bewildering attempt to move in opposite directions simultaneously – to oppose the ending of the dual mandate, having strongly supported its ending in line with Fine Gael policy the last time such legislation was before the House—

Mr. B. Hayes

Like the time the Minister left the Progressive Democrats.

Mr. Cullen

—and having at the time opposed the introduction of new arrangements for the election of county-city cathaoirligh to now suddenly oppose their omission.

Mr. B. Hayes

The Minister is a good one to talk about both faces.

Mr. Cullen

From where I stand, I would place my judgment against that of Senator Hayes any day of the week when I see where he is sitting. Is this a volte-face or simply the lack of a coherent policy? At least Fine Gael cannot be accused of sitting on the fence when it is straddling both sides at the same time.

Mr. B. Hayes

A temporary little arrangement.

Mr. Cullen

To return to the Bill, section 8 is a standard provision providing for the short title and collective citation. I commend the Bill to the House.

Mr. Bannon

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Seanad Eireann declines to give the Bill a Second Reading for the following reasons:

(a) the Bill confers powers onto the Oireachtas that are not envisaged by the Constitution,

(b) the Bill deprives the people of an opportunity to vote for directly elected mayors in each administrative area, and

(c) the Bill makes no provision to further devolve powers to locally elected councils”.

The Minister had the gall to lecture Fine Gael on policy at the end of his contribution. He is the man who dumped his own party for Fianna Fáil. Is that not opportunistic?

Mr. B. Hayes

Hear, hear.

Mr. Cullen

For God's sake—

Ms Feeney

Rubbish.

Mr. Brady

Speak on the Bill.

Mr. Bannon

It is out of place to expect this House to give the Local Government Bill 2003 a Second Reading given that it not only flies in the face of democracy as we know it but also asks us to sign our own death warrants in terms of local representation. Currently, nearly two thirds of the Members of this House are also members of local authorities.

The Bill focuses on the abolition of the dual mandate but makes no adequate provision for the way Members of the Oireachtas will represent their constituents in respect of local matters, should it be passed. It is not accompanied by any real reform of the local authority system and fails to provide for a radical overhaul of the way services are provided and delivered. Statutory regulations, not guidelines, are imperative to direct local authorities on how they conduct their business with Oireachtas Members. Such regulations should have been published with the Bill.

There is nothing in place to make provision for the following essential reforms: modernising local government; democratic renewal – following new ways of working giving local authorities new powers to lead their communities; new technology to improve services, deliver budgets for the term of the council, calculated on the basis of needs; and improving the internal efficiencies of local authorities to deliver services.

One of the hottest topics for debate, the future funding of local authorities, is not addressed in the Bill. There are no recommendations regarding financing strategies for local authorities and we are left with real concerns about the delivery of properly funded local government services.

Regrettably, local authorities are too dependent on central Government. The abolition of rates and water charges, together with the promise of adequate funding to deliver services locally, were central decisions but the promise is a mockery given the current cutbacks, which see local authorities underfunded and unable to provide essential services. Where is the political will in this Bill to do something about this situation by establishing links between local taxation and local spending?

Historically, Senators have no local constituency. Their constituency is the whole of Ireland and their function is to represent their "constituents" on a countrywide basis, inclusive of national and local matters. The ending of membership of both local authorities and the Seanad is nothing short of the choking of the oxygen supply to local areas. Far from double jobbing, Members do not get paid for sitting on councils. They see the dual role as the perfect marriage of local and national representation, which benefits the entire population. Dual membership provides a national platform for all Senators who wish to raise matters of local concern at national level, through motions, Private Members' Business, the Order of Business and so on. There is no better way to work than being a member of a local authority and having a strong electoral connection with local democracy. It greatly enhances the image of the Seanad and underpins its very effective community representation role. More importantly, it provides access to a national platform for the most marginalised community groups in the State. It is essential to keep in close contact with our citizens on the many issues which affect them and their communities.

Is this Bill constitutionally sound?

Mr. Cullen

Yes.

Mr. Bannon

Is the Government prepared to publish the Attorney General's opinion or would the grey areas he has probably found strengthen the case of those who oppose the Bill? By taking democracy out of the hands of the people, the Government is denying them their democratic right to decide their local representatives. This sort of disrespect for our Constitution would not be accepted in any other EU country. Unfortunately the Government does not appreciate or respect what Oireachtas Members have done for local government. It is choosing to override the democratic process. Our Constitution provides that no person may be a member of the Dáil and Seanad at the same time but it says nothing about being a member of both a local authority and the Oireachtas. Therefore, according to the Constitution, there is nothing to prevent anyone from being a member of a local authority and of Parliament.

It was 1918 before women in this country got a vote and then it was only married women of 30 years or over. Women were debarred from membership of county and borough councils until 1911. One might say that is history but in 2003 another debarring order is about to be imposed on us. How can democratically elected Members of the Oireachtas be denied the right to take their places as leaders of their communities and to develop and shape those communities at both local and national levels?

It is unconstitutional to deny the citizens of the State the right to elect whoever they want to serve them on local authorities. Voters must be allowed to have their say. The Government's change of mind in relation to the proposed direct election of mayors is an obvious indication that it is afraid to face the electorate in such elections. Its candidates would certainly suffer the consequences of the broken promises and widespread cutbacks since the general election. Under these proposals experienced people will be forced to leave local government. I assure the Minister that the offer of a financial sweetener, which is tantamount to a dubious pay-off, is no incentive to councillors, Senators and Deputies to give up their unpaid work for their local areas. The windows of opportunity opened after the passing of the Local Government Act 2001, but the Minister is pulling down the shades by introducing the Local Government Bill 2003. The people he is shoving off local councils have invaluable experience and knowledge of the local government system and, most importantly, they are the choice of the people.

What price democracy when that choice is arbitrarily removed from the electorate and it is no longer allowed to decide who represents it? My party has serious concerns about the Bill, which has fallen far short of the comprehensive and major reform we expected. Following the recent proposals in the Environment Protection Bill to remove certain powers from elected councillors and to give those powers to county or city managers, this Bill again hits at the core of local democracy.

Mr. Kitt

I welcome this debate. The Minister gave a history of proposals to end the dual mandate, going back to the Barrington report of 1990, and I will discuss some related issues which have affected me and other Senators.

We should start with the role of the county councillor and I agree with Senator Bannon that that is very important. Perhaps the role of the councillor has not always received sufficient recognition from both the Government and the public. The previous Minister for the Environment, Deputy Noel Dempsey, was the first to introduce a modest payment for councillors, which I welcomed. It was something councillors were anxious to receive and I hope they will get more recognition, financial and otherwise.

This short Bill ends dual membership of local authorities and Parliament, which will commence with the next local elections in 2004. The Government also said it would discontinue the arrangements currently in place to introduce direct elections of city and county cathaoirligh at the same time. I favoured the ending of the dual mandate and as a member of Galway County Council for 17 years I know of one practical reason for that, which the Minister also alluded. We spent a lot of time trying to arrange meetings because of the number of Oireachtas Members on our local authority and there were constant rows about the dates and times of meetings as a result. Obviously it is even more difficult now since the strategic policy committees require local authorities to meet more frequently. I was a member of the authority from 1975 and it always amazed me that Ministers could remain on the authority until the following local election. That caused even more difficulty in arranging meetings.

Reform has been slow and gradual. In 1991 the Fianna Fáil-Progressive Democrats Government brought in legislation providing that Ministers and Ministers of State automatically lost their local authority seats when they were appointed to Cabinet. I was a victim of that legislation as I was then a Minister of State and lost my local authority seat. Worse followed for my party as it did not get to co-opt my seat. At the time whoever had the majority took the seat, which was wrong. Deputy Noel Dempsey rectified that when he was Minister, stating that the party which lost the member would retain the seat. That is only right to ensure proper representation for different electoral areas.

The Minister did not go into too much detail about payments. Members who give up their seats by June should receive a decent amount. The scheme in 1999 paid local authority members on the basis of the length of service, up to a maximum of 20 years, with a highest payment of £20,000. It was a good scheme, particularly for retiring members, because those who availed of it and who want to stand in future local elections have to pay back the money received. It is interesting that this is not a retirement payment because recipients will be able to stand again for local elections in future without having to pay back the money.

There was concern in 1999 about those with more than one dual mandate who retired from a local authority but who did not receive payment. The Minister made it clear that we are talking about local authorities where a person received the highest vote. People on health boards and vocational education committees feel they should be viewed in a more favourable light because they are giving up more than a local authority seat.

Section 3 deals with the entitlements of Oireachtas Members who request information – be it notice of meetings or agendas – from local authorities. The section states that the matters to which the guidelines may relate include correspondence with Members of either House, supply of information generally and such other matters as the Minister may consider appropriate and local authorities shall, in so far as is practical, follow these guidelines. That is the minimum. I hope that Oireachtas Members would be able to discuss estimates. They should also be able to discuss county development plans and receive prior notice of planning applications. I have not served on a local authority in ten years, but it is difficult to obtain information on planning, which is an important issue.

Area meetings are also increasingly important. In County Galway there are five electoral areas and deputations attend their meetings. It is important that notice of such meetings and their agendas are given to Oireachtas Members. Area meetings are now being expanded to include extra community representation.

I have never been aware of support from councillors for directly elected mayors. The Minister compared the current situation to the manner in which we elect the Taoiseach. We elect Deputies and, by vote in the Dáil, they elect the Taoiseach. This is what councillors have been doing and the system works well. There is a chance to rotate the position. There is no ground-swell of support to change the status quo. However, Members opposite possess information I do not have about the matter.

Why do so many officials have not just a dual but a triple or quadruple mandate? I come across the same people on enterprise boards, Leader boards and tourism boards. This is difficult to understand. Last year I was trying to assist a person to secure funding for a very good tourism project. I brought him to talk to an enterprise board, but the funding was refused. I said I would try the Leader board, but the official to whom I spoke told me that he would be there as well and that the request for funding would again be refused. I then met the same person at a meeting of the tourism board. The same people were probably sitting on the Western Development Board. It does not make sense to have the same people sit on so many agencies.

Other issues arise in respect of advisory and research groups. A group is currently looking at manpower in the health services. A number of chief executive officers and managers are members of that group and they say they are acting in consultancy roles. However, the work they do for the group takes away from their work as executives. This matter should be examined.

The Oireachtas enjoys an effective committee system, of which the DIRT inquiry led by the late Deputy Jim Mitchell was a good example. The latter showed what can be achieved by committees.

There is no constraint, in terms of membership, for those who are prepared to work hard on local authorities. We could, however, improve the situation for Senators. The Minister for Finance has greatly improved facilities for Oireachtas Members in general, but most of those improvements were for Deputies. The work of Senators is similar to that of Deputies, but Senators do not each have a secretary or office and receive little help to maintain their constituency offices. The Government should look at this area. One Oireachtas Member who is also a member of a health board told me that if he was chairman of that board, some of the money he would receive would go to maintaining a constituency office. That demonstrates Senators' desire to serve the public. The option that Deputies have to employ a secretary in either their constituency or in the Oireachtas should be available to Senators.

Senators should be able to maintain contact with their electorate, namely, councillors. I do not know what reform will be implemented in the Seanad when the committee publishes its report, but Senators must keep in contact through conferences and meetings and should be offered help to do so.

In welcoming the Bill, I wish to underline the improvements which have been made in the role of public representatives generally. The previous Minister for Environment and Local Government, Deputy Noel Dempsey, was very keen to have that reform and I greatly welcome his achievements for the benefit of local authority members. The current Minister, Deputy Cullen, has made a great deal of progress in a very short time in continuing that work.

Because of this Bill, there will be opportunities for new people to become involved in politics. The Minister has already referred to the fact that only 16% of county councillors are women. Greater involvement in politics by women and young people would be a very welcome development as a result of this Bill and I hope a substantial number of them come forward. Vacancies will have been created already because Oireachtas Members will not be contesting seats or will have the opportunity to give up their seats. Accordingly, there will be opportunities for new candidates in the local elections next year.

I welcome the Bill to advance the reform of local government and congratulate the Minister on introducing it. I hope the Minister will take on board some of the points I have made as to how Oireachtas Members can relate to local government and be involved in it.

Ms Tuffy

I support the Fine Gael position on this Bill. I firmly believe the Bill is unconstitutional and that I and my fellow Senators have a duty to uphold the Constitution. I agree with Senator Bannon's submission on the constitutionality issue. For example, Article 15.14 requires that no person may, at the same time, be a Member of both Houses of the Oireachtas. If any Member of one House becomes a Member of the other House, he or she is deemed to have forfeited his or her first seat. Similarly, in Article 12.2, if a Member of either House of the Oireachtas is elected President of Ireland, he or she is deemed to have vacated his or her seat in the House.

Why was it deemed necessary to spell that out in the Constitution rather than in ordinary legislation? I believe it was because of the important role of the people in the Constitution, which derives its validity from the people. Similarly, elected public representatives and governments obtain their mandate and validity from the people, from whom our authority and powers ultimately derive. The right of citizens to vote in Dáil elections is enshrined in the Constitution. For that reason, I believe there is no way to compel a Deputy or Senator to give up his or her seat other than through the Constitution, on the grounds that he or she has been elected to one of the other Houses.

In Article 28 A(2), local government has been similarly enshrined in the Constitution. Directly elected local authorities are subject to the provisions of the Constitution and the right to vote is given to every citizen who has a right to vote in Dáil elections and such others as may be determined by law. As in the case of the Oireachtas, the mandate and powers for local government come from the people. Indeed, the mandate is even broader than that for Dáil elections in that, under European law, non-nationals may stand for election to local authorities, once they meet the same legal criteria as national candidates. On that basis, I do not believe local councillors can be compelled to give up their seats once they are elected, unless that is provided for in the Constitution. Nobody would suggest that an elected Deputy or Senator could be compelled to give up his or her seat. Why should we feel free to do so in legislation in relation to county councillors? The legislation itself—

Mr. Cullen

We have already done so in the case of MEPs, Ministers and Ministers of State.

Ms Tuffy

That has not been challenged.

(Interruptions).

An Leas-Chathaoirleach

Senator Tuffy, without interruption.

Ms Tuffy

If the Minister will allow me to finish, I will go into that and explain it. The wording of the Bill itself signifies that there is a problem, legally and constitutionally. It does not just prevent one from holding a seat; it actually prevents one from running for election. The proposed new section 13A states that one cannot be elected to a local authority if one is a Member of either House of the Oireachtas. That is a recognition of the fact that one cannot take away the mandate and powers an elected local councillor derives from the people.

The problem from the Minister's point of view – and the factor which dooms this Bill to failure – is that a councillor can run for election to the Dáil. I do not see how such an elected person can be compelled to give up their seat unless appropriate provision is made in the Constitution. That is largely where the constitutional challenge will lie.

The Minister has spoken of separating national and local government, but in reality he wants to have it both ways. He is not going to prevent councillors from running for the Dáil or the Seanad. He cannot have it both ways. By setting out to do so, he is leaving a constitutional loophole.

The Minister also referred to previous legislation. My first argument is that it has not been challenged and, second, it is different in that the disqualifications already existing in the Local Government Act 2001 largely relate to incompatibility or a conflict of interest. Ministers are appointed to their positions. A county councillor cannot "run" for appointment as a Minister. It is different in that sense.

In relation to the European Parliament, one is not prohibited from being both a Deputy and an MEP but one is prohibited from being a Minister and an MEP. That is because a conflict of interest arises. If one is a Minister, one may be involved in negotiations with the European Parliament and local authorities. Clearly, there is a specific reason behind that legislation which is not present in relation to the provisions of this Bill. Being a Deputy or Senator does not involve that type of relationship or give rise to any conflict of interest. I do not accept that there is any disability or incapacity which could be argued in court to justify the provisions in this Bill.

Another problem arises, giving grounds for legal challenge, where a non-party or independent councillor is elected to the Dáil. Under this Bill, the mandate of those people who voted for such non-party representation in the local authority will, effectively, be pushed aside as the outgoing non-party councillor will not have the opportunity to nominate a successor. The position will be filled by the majority group in the council and will, most likely, go to a member of a political party, thereby taking away the democratic rights of those who elected an independent councillor.

The Minister has put great emphasis on the provision in the Bill to reward those who give up their elected mandate before a date well in advance of the local elections. That involves financial discrimination as between those who avail of that provision and those who serve out their electoral mandate. I believe that is open to legal challenge. It takes away the rights of the people who elect county councillors. Those who serve out their full term are serving democracy, as they are supposed to do. The widespread co-option of non-elected people to local authorities as a consequence of this Bill is, undoubtedly, a subversion of the very local democracy which we enshrined in Article 28 A of the Constitution in 1999.

Other constitutional provisions which give grounds for challenge to this Bill include Article 1, which gives the nation the choice of its own form of government and Article 40, which gives the people the right to express their own convictions and opinions. I also refer to Article 2, which gives rights to people in Northern Ireland. I believe this Bill will be found to discriminate against some citizens of this country as opposed to others. There is nothing to stop Members of the Northern Ireland Assembly running in local elections in the South, subject to fulfilling the residency requirements, as I have no doubt they will if it comes to that.

This Bill is also open to challenge because of the inequality and unfairness it brings about. It singles out Members of the Oireachtas. It does not prohibit a Deputy from being a Member of the European Parliament and vice versa, yet it does not allow national politicians to transfer to local government without resigning their seats. One may transfer from European to national politics; one may transfer from local government to national politics, but the one transfer which will be prohibited under this Bill is from national to local politics without giving up one's seat in either House of the Oireachtas. That is my understanding of the Bill.

In relation to the European aspect, Directive 94/80 EC gives non-nationals the right to run as candidates in local elections if they fulfil the same criteria as national citizens. In this regard also, a case could arise in terms of discrimination against Members of the Oireachtas. Senator Bannon spoke of this Bill as being regressive rather than progressive, by introducing bars to running for local government rather than opening it up to people.

Senator Bannon mentioned the way women had been debarred. The Minister referred to the National Women's Council and the opportunity for women to run for office. Only 10% of county councillors are Oireachtas Members. That is not going to make a major difference to the participation of women in local democracy. Much more fundamental measures are needed to deal with the lack of participation by women in local government.

I recently read a book published in 1972 about practices of the Seanad which noted that, in 1961, a joint committee on electoral law recommended that existing legal disqualifications should be removed in respect of the Dáil and the Seanad. The committee said that electors must be regarded as mature enough to elect representatives of the type they want, and to take the consequences should the persons elected become incapable of acting during the period of office by reason of imprisonment, mental instability, bankruptcy and so on. That same committee wanted to remove the disqualifications in respect of civil servants wishing to seek election. The committee members wanted to move forward. They had an idea of voters being mature enough to make their own decisions about who they would like to be their public representatives. They wanted to remove disqualifications in order to open up our democracy. This legislation is doing the reverse, and it is a bad precedent. Instead of the philosophy of trusting voters, it is the philosophy of telling the people what the Government thinks is good for them. That is a backward step.

I believe that the roles of Oireachtas Member and local authority member are complementary, not incompatible. I am happy that as a county councillor I bring something to the Seanad. Other professions bring their own perspectives to the Dáil and Seanad. There are many business people, barristers, doctors, solicitors and others practising their professions while Members of the Oireachtas. We do not object to them bringing their perspectives to the Oireachtas. It will be a loss to both Houses to lose the local government perspective. County councillors have their ears to the ground and would know, for example, much more about the housing problems at first hand. They are generally the ones who raise such issues in these Houses.

The argument that one must separate the role of national legislator from that of local politician is ridiculous. As Tip O'Neill said, all politics are local, and there is no national legislation which does not have a local dimension – and no local issue which does not also have a national and legislative dimension. In other countries, national politicians can hold local authority seats. Ireland is a much smaller country than many of these, and much more manageable in terms of holding a dual mandate. If a national politician in France can also be a local councillor, I do not see why the dual mandate is not possible in Ireland. It is not compulsory to hold the dual mandate, and those Oireachtas Members who do not want to sit on local authorities or feel they cannot manage it should make the choice themselves, rather than having it imposed on them, as is proposed in this legislation. One can be a Member of the Oireachtas as well as being an MEP, and that is not considered legally unmanageable. I do not see why being a Member of the Oireachtas and the local council is not more manageable and defensible. It is absurd that while one will be allowed to hold two full-time elected positions, as an Oireachtas Member and an MEP, this legislation will not allow an Oireachtas Member to hold a part-time elected position on the local council.

The Minister has suggested in the media that in future, local councillors should be full-time. Can he be serious about this, in a small country like Ireland? Apart from the fact that we would lose many prospective participants in local government, the whole idea of local government is that it should be representative of the community. To suggest at the same time as saying we should have fewer TDs that we should have 1,000 councillors on full-time salaries is ridiculous. The public would not accept that.

It would be bad for local government if the dual mandate were abolished. That is my personal opinion, which I have always stated. This legislation comes from a very patronising and dictatory point of view, the same view which threatens that councils can be abolished if they do not adopt their estimates. That is unconstitutional, because the wording in the constitutional amendment of 1999 under Article 28A is that there shall be such directly elected local authorities. It is the wording "directly elected" which makes unconstitutional the threat held over county councils that they might be abolished and replaced by an unelected commissioner. That is why the Minister is bringing in legislation to take away the power from the elected representatives. He knows that under the Constitution it is no longer defensible to hold that threat over county councillors.

As Senator Bannon and others have mentioned, we can see that more and more powers are being taken away from local government. The one reform which might have shifted power away the county manager and towards the elected and accountable public representative is being removed in this Bill. The abolition of the dual mandate indicates that the lack of regard for local democracy will continue. At national level, ultimately in Fianna Fáil, what is still left of social democracy, in the persons of the Oireachtas Members who are local authority members, will eventually disappear.

I would say to those on the Government benches that this Bill is just the beginning. Seanad reform may well bring an end to councillors voting in Seanad elections. The Minister has indicated in relation to the Dáil that he foresees reforms relating to fewer Dáil seats and list voting. That is according to the media recently. If the Minister brings in full-time paid councillors he may well reduce their numbers, or the numbers of local authorities, to make it financially feasible.

As for those not favoured by the Fianna Fáil or PD leaderships in the last Seanad elections, who nevertheless achieved election on their own merits, I would warn them that their parties are beginning to phase them out. If they vote for this Bill, they are indeed like turkeys voting for Christmas.

An Leas-Chathaoirleach

I would like to welcome Councillor Adrian Farrell, from Lanesboro, to the Visitors Gallery.

Mr. Dardis

Is there anybody I should welcome?

I accept the need for this Bill and I will support it when there is a division, yet I have reservations to which I will come presently. I note what the Minister had to say regarding the Barrington report of 1990, a very authoritative report which recommended the abolition of the dual mandate. The Commission on the Status of Women subsequently did the same, as did the general council of county councils, the chambers of commerce of Ireland and the National Youth Council. There is unquestionably quite a body of authoritative opinion supporting the abolition of the dual mandate, and regard must be taken of it.

We must also accept a diversity of views not just within the Houses but within the political parties. The amendment on the Order of Business today was quite opportunistic in its approach, because it concentrated on the constitutional aspects of the Bill while not confronting what the party's formal position might be with regard to the same Bill. This was a very convenient refuge. It is not for us to decide whether or not the Bill is constitutional. That is a matter for the courts, and we are conscious of the separation of powers between these Houses and the Judiciary. That does not preclude people from having a view on these matters. People must be free to express such views.

I recall equal status legislation where I believe Senator O'Toole took the view that a particular section might be unconstitutional. It was to do with the right of people with disabilities to equal treatment. The then President referred that Bill to the Supreme Court, and it was indeed found to be unconstitutional, but with regard to a section which had not attracted much attention. We must leave such matters to the courts. We proceed with legislation, and if it must then be tested, so be it. I doubt too if any individual will succeed in a case to declare the removal of the dual mandate unconstitutional. That again may be tested in the courts. There are precedents with regard to the European Parliament and Dáil Éireann dual mandate that suggest that a case taken on this ground would not be successful.

I accept the Minister's point that the work of a public representative has become increasingly onerous. At county council level, and I declare an interest as a member of one, representatives are confronted with an increasing number of SPCs, committees and Leader groups. The degree of work that has to be done by Oireachtas Members is increasing, particularly in terms of servicing joint committees, the all-party committee on the Constitution, the Forum for Europe and the Forum for Peace and Reconciliation. The scope of Members' work has also widened, outside constituency work and the normal day-to-day politics. It is difficult to marry these positions.

There is also the issue of county councils arranging meetings on Mondays and Fridays so as not to clash with the parliamentary week. I understand this is not a satisfactory arrangement, but it is inevitable due to the dual membership at local government level and national level. This is another argument for the abolition of the dual mandate.

I have some sympathy for the points expressed by Senator Tuffy, in particular that the people are sovereign. I have expressed this viewpoint at my own party meetings, though it is a minority view rather than a majority one. The people decide. If in their wisdom, they decide that a person is suitable to be a member of several bodies, that is their prerogative. If they decide their representatives are unsatisfactory, then it is their prerogative at the next election to remove them. We tread in dangerous waters if this sovereign right of the people is removed.

There is no possibility of Senators losing touch with their electorate. I cannot imagine this happening, whether or not there is a dual mandate. Every elected Member of both Houses keeps in touch with the electorate. If not, they will not be re-elected. I doubt if the complexion of this House will vary dramatically when the dual mandate is abolished. There is though a point of difference between the Seanad and the Dáil. The Seanad is a vocational Chamber and it was always accepted that Members would have outside, paid employment. That is a subtle distinction between this House and the Dáil. In that context, there might be a case for treating both Houses differently. However, I accept that for reasons of consistency and practicality, it would have to apply to both.

Another issue that arises is the decision not to proceed with the direct election of mayors. If the electorate decides to elect someone to office that the general body politic regards as an unsuitable holder, that is up to the people, not the general body politic. That is why I have always favoured the direct election of mayors. One aspect that makes this case different is the chairing of county council and corporation meetings, which requires a certain degree of knowledge of how the system works and certain skills in conducting meetings. This can only be acquired through membership of a local authority. It would be unusual for someone to be elected to the chair of a local authority on their first day. Nevertheless, I do believe it would be right to have such elections and that the tenure of such officers should run in conjunction with the term of the council.

It was a step forward that the ministerial prerogative allowing local authority elections to be postponed indefinitely was removed. We can argue what the length of the period should be, but it must still be defined. The chair of a local authority should then occupy that position for the whole period. In my council in County Kildare, there is effectively a coalition between Fine Gael and Fianna Fáil. The chair rotates on an annual basis and, though it works satisfactorily for all parties, there is a need for a continuity. I favour giving more powers in controlling the executive to the position of chairman. The council does have some control but it may need to be strengthened. This is, however, an argument for another day.

The other issue that needs to be examined in the abolition of the dual mandate is subsidiarity – the degree to which decisions can be made at local level. I do not mean it in the strict EU sense of the word. If representatives will not be moving between the Oireachtas and local authorities, then there needs to be a look at how subsidiarity will work. Commendable attempts have been made in the past by Governments to devolve more functions to the local authorities, but they have not always been successful and some members of local authorities refused to accept more responsibilities. This was evident in the case of legislation on waste disposal, when some local authority members would not take on the extra responsibilities associated with it. In those circumstances, I agree with the Minister that decisions must be made effectively, even if the powers to do so are devolved to a local authority executive.

I note there will be a study on the issue of local authority funding but I think there have been too many. There needs to be coherence in these studies. In County Kildare, there is a rapidly growing population and infrastructural difficulties. I accept there are counties in the west where the population is in decline and certain infrastructural problems have to be addressed regardless. However, the rapidly growing counties around Dublin have been penalised by the very fact that they cannot raise the revenue.

Yesterday in the House, the Valuation Office was raised on the Order of Business, an issue which must be attended to very soon. The rates revenue of councils is affected by their inability to get the rateable valuations established for businesses that are coming into their areas. Local government is now big business – the current budget of Kildare County Council is €80 million. It is an onerous task for the council members and executive to manage that budget effectively and properly to the advantage of the people and clients.

The Minister referred to ethics and the Act of 2001. I accept the need for an ethical standard which applies to all local government employees. However there needs to be distinction between the codes of practice and compliance. Every member has an obligation to declare their interest but the system has become overly bureaucratic. It would not be the Minister's intention that people at the lower levels should have the same onus of compliance in terms of form-filling, etc., that applies at the higher levels, but there must be a standard.

Mr. Cullen

The same principles.

Mr. Dardis

Yes. There have been cases where people in the planning departments have been involved in making planning applications and in the technical aspects of those applications. That is insider trading. There is no question about it. It gives an edge to the person making the application and that is wrong. Systems should be in place to ensure that such cases do not arise. I note that this problem has been rooted out at the higher levels but it should not happen. While I have some reservations about the Bill, I support the broad thrust and I will vote to support it.

Mr. Cummins

I welcome the Minister to the House. I second the amendment proposed by my colleague, Senator Bannon. When Better Local Government was introduced by the Minister's predecessor, Deputy Noel Dempsey, he stated that greater powers would be extended to local authority members, that bureaucracy and duplication would be cut out, that there would be directly elected mayors and that the dual mandate would go. What have we seen since that Better Local Government document was produced?

The last Government was to abolish the dual mandate but it backed down because of pressure from some Independents. It was still intent on going ahead with the introduction of directly elected mayors. We have seen bureaucracy increase in local authorities and local authority members being stripped of many of their powers by the Minister, Deputy Cullen, in areas such as waste management and planning. Members of the Government are running around like headless chickens. What they propose in one instance they go back on and then reintroduce. We do not know what they are at.

Senator Kitt asked if Members would continue to sit on sub-committees such as health boards, vocational education committees and regional authorities. There is an obvious answer. If one is not a member of a local authority, of course one cannot be a member of those bodies. That obviously strips Members of their powers in that regard.

The Minister referred to access by Oireachtas Members to local authorities should this Bill go through and said he would introduce guidelines at a later stage. Why does he not place all his cards on the table now? Why are these guidelines not before us for discussion in tandem with this Bill? We are really putting the cart before the horse in this regard. We are not getting all the information.

Senator Tuffy eloquently discussed the question of the constitutionality of this Bill. My party also has doubts about its constitutionality. It may be tested in the courts at a later stage. Why not put before us the Attorney General's advice on constitutionality of the Bill? Perhaps then we would be more informed.

Senator Tuffy asked if this debars councillors from standing for election to the Seanad and to the Dáil. The Minister is debarring Oireachtas Members from being members of local authorities. Does the opposite apply? Senator Tuffy quite rightly mentioned that this could be the question which would test the constitutionality of the Bill.

Senator Dardis raised his reservations also. Many Fianna Fáil Senators and Deputies have expressed their reservations but they have obviously come like sheep behind this Bill for whatever reason – certainly not on principle.

I am worried about making bad law. No law is better than bad law and what the Minister is introducing here, without having all the information put before us, could be deemed bad law. It is all very well to speak of giving greater powers to local authorities. Words are fine, but the actions have not followed through in that regard. If one asked local authority members whether they were better off before Better Local Government or after it, many would say they were much worse off, that more powers were being vested in officials and unelected persons rather than in local authority members.

I have expressed my reservations, as will many other speakers. We are certainly concerned about the constitutionality of the Bill.

Mr. Brennan

I too welcome the Minister to the House to discuss this legislation. Reform of local government is something every public representative welcomes. Many attempts have been made by successive Ministers to achieve this. Looking back on the past six Ministers for the Environment, it is true to say that under the two Fianna Fáil Ministers, Deputies Cullen and Noel Dempsey, local government reform has been started and much has been achieved to date.

Since the last local elections, local authority SPCs systems were introduced whereby public representatives worked together with community groups' representatives, management and sectional interests in the formation of policies at local authority level. We also recognise the role which dual mandate Members have played in the development of our local authorities. It is indeed a great honour, given by people at elections to public representatives, to serve and represent the electorate on a local authority. I deeply respect and treasure this honour given to me over the past 19 years by the people of County Limerick.

Under this legislation, the dual mandate will end in June 2004. I also treasure the greatest honour elected public representatives can get, that is, to be nominated as one of the Taoiseach's eleven. Senator Tuffy warned that we are on the way out, but I can assure the Opposition Members that the people on this side of the House have greater plans ahead for those Members as public representatives.

I ask the Minister to look seriously at the access which Oireachtas Members will have at local authority level. I refer to minutes and reports of council meetings and SPCs and a right of reply by county managers and staff to correspondence from Members. It was said that this will be done by directive. It is most important that the Minister take on board Members' concerns in that regard.

Under the existing regulations, retiring councillors qualify for a retirement gratuity. This has been mentioned by previous speakers. I refer to local authority members who may be retiring in June 2004. The County Councils General Council – I welcome its director, Liam Kenny, who is in the gallery – and LAMA have, in the past, made clear to the Minister their concerns about service by elected members, some of whom have given more than 30 years of service to their local authorities.

I ask the Minister to review the legislation, taking into consideration that many councillors not included in the dual mandate will be retiring next June. The constitutionality of the Bill has been questioned, but our job is to achieve better local government through legislation so that is a matter for another day. I wish the Minister well and congratulate him on what has been achieved to date.

Ms O'Meara

I welcome the Minister to the House, in which he has recently been spending much time. The Bill has been long awaited, particularly by those of us who are members of local authorities. My colleague, Senator Tuffy, has clearly elucidated some legal issues, so I will speak about the political aspect of the Bill.

This is a short Bill, designed specifically to abolish the dual mandate. In other words, its aim is to prevent Members of the Oireachtas, ourselves included, from also serving on local authorities. There are different sides to the issue. From a logical point of view, in order to do one's job properly, either as a Member or as a councillor, one should not mix or be involved in both areas. That makes sense, given that in recent years the amount of work for county councillors has increased considerably. I am aware of this on foot of my membership of a county council, an SPC and, consequently, a joint library committee. One needs to concentrate on the policy side through the SPC. It is easy to see why the two jobs should be separated.

Like many Members, I have put a great deal of thought into this matter. Local and national politics are intertwined, particularly in this House. When this matter first came up for debate during the term of the last Dáil, I made the point that the relationship between Senators and councillors is different from, for example, that of Deputies and councillors. The reason is that we are elected by councillors and, therefore, have a direct relationship with local government. Being a member of a local authority is important in terms of one's relationship with county councillors. I have discussed this with a number of county councillors and I know they would like to feel that the route we took to get here was reflected in our work. This special relationship should be reflected in the legislation, but that is not the case. The Bill makes no distinction between Senators and Deputies, regardless of whether those Senators are elected by councillors. I would like to hear the Minister's thoughts on this issue.

As other speakers stated, this proposal would be far easier to swallow if it was being introduced in the context of a major reform of local government. However, those of us who are members of local authorities know that, if anything, our role is being diminished as each day passes. One need only consider another Bill – the Protection of the Environment Bill 2003 – currently before the House which again reduces the role of elected members on the local authority by enhancing the functions of the county manager, taking powers away from the county council. We are looking at a framework not of enhanced power for the local authority member, but of a diminished role. That makes this proposal even less acceptable.

This is not happening in the context in which it should be. I suspect it is happening for purely political reasons, namely, to allow the major Government party to maximise its position in advance of next year's local elections. We will see how that works out in terms of the public response to it.

This is not a Bill to reform local government; it is aimed at reducing it in size. Fellow members of North Tipperary County Council feel that the council will be worse off when it loses the Oireachtas Members because it is they who can contest most strongly the power of the manager. One of the reasons for this is that being Members, especially of this House, gives us access to information that is extremely useful at local authority level. These developments could diminish the role of the local authority.

I do not want to take away from the contribution made by county councillors who are not Members of the Oireachtas. The councillor – the person in question is not a member of my party – who said this to me is not a Member, nor has he any ambitions to be. He sees, however, that the strongest voices on the local authority are those of the Members of the Oireachtas. When they are removed, the voice of the local authority will be weaker, especially when it comes to taking on the manager. My concerns are made greater by the fact that this is happening against the background of a reduction in power for the elected member.

In my opinion, a political decision has been made to abolish the concept of directly elected mayors. If such positions had been created, the holders would have been capable of disputing managers' decisions. Directly elected mayors would have had the advantage of holding a mandate and being in office for a period of five years would have enabled them to engage in forward planning. A period of 12 months is extremely short in terms of being able to put in place initiatives, implement plans or work through a strategy. The loss of the office of directly elected mayors will again diminish the role of councils.

The Bill is a framework of diminution, undermining and weakening of position. As a Member of this House who was elected by members of local authorities, I cannot support it.

Mr. Leyden

I welcome the Minister back to the Seanad, which he has frequented on a number of occasions recently. I am glad he is spending time here to debate the Bill.

As the Minister is aware, I have some difficulties with the Bill because I have a direct connection with some of the issues that arise. The Government and the Office of the Attorney General have given their approval and the Bill is now before the House, so Fine Gael's amendment is rather unusual. The amendment prejudges the Bill before it has been passed by both Houses of the Oireachtas and sent to the President for signing. The President may decide to refer it to the Council of State, which may, in turn, refer it to the Supreme Court. It is also open to any individual to bring the Bill before the court, so there are many opportunities for people to challenge its validity. The Minister would not bring the Bill before the House if he did not have the full support of the Attorney General and the Cabinet.

This legislation is not unprecedented. Ministers and Ministers of State were deprived of membership of councils in 1991. They say lightning does not strike twice, but in my case it has done so. I served as Minister of State with responsibility for trade and marketing and, until 1991, I received numerous letters from the then Taoiseach, Charles Haughey, asking when I might leave the local authority. There was always a good reason not to leave, whether it was the forthcoming election of the cathaoirleach or some other important issue. I did not seek or receive any subsistence at that point because I was a Minister of State, but I attended the majority of meetings – I had one of the best attendance records – and managed to combine the roles of Deputy, Minister of State and councillor. I did not stand for election to the council in 1991 because of the legislation, I lost my Dáil seat in 1992 and I lost my Seanad seat in 1993.

Mr. B. Hayes

The Senator is back now.

Mr. Brady

Very much so.

Mr. Leyden

It is important that the Minister makes the role of Oireachtas Members clear in this legislation, giving them a right of access to local authorities. I respectfully suggest that the term "the local authority should, as far as is practicable, comply with guidelines" be deleted from the legislation. If local authorities are given a way out, they will take it.

I wanted to continue in public life despite not being a Deputy, Senator or councillor, so when I was appointed to the Western Health Board by the Government, I worked at the job full-time because I was committed to returning to this House. During the period in question I sought a meeting with the housing officer on behalf of a constituent who had come to me because I had served as a Deputy for 15 and a half years and as a councillor for 17 years. At the meeting, a phone call came through from the secretary of the county council instructing that the meeting be terminated. It was hurtful that, after my service in public life, I was treated in this manner and that I no longer counted in terms of representing the people of County Roscommon. I made a strong case to the then Minister, Deputy Howlin because I considered taking a constitutional case on whether I could represent the people. The file is in the Department. The Minister had no legislation to instruct the county manager or the executive to communicate with me as a former member of the council.

The unique protocol we arranged was that I wrote to the Minister on representations to the local authority on housing, roads, local employment schemes, etc., and he communicated these to the county manager who replied to him within seven days. The Minister then replied to me and I informed the constituent of the position. It was an unnecessary situation, but, I must admit, I got a tremendous response to my representations. I returned to the council in 1999, heading the poll for Fianna Fáil in the mid-Roscommon area and delivering three out of five seats.

Mr. B. Hayes

The party needs the Senator again.

Mr. Leyden

Deputy Howlin was helpful at the time and the arrangement continued when Deputy Noel Dempsey became Minister for the Environment and Local Government. If I had informed the electorate that I had become useless because I could not make representations, I would not have been re-elected so I had to suppress my public denouncement of the council at the time.

I met the county manager at the Easter parade in Strokestown in 1999 and asked him if he would lift the boycott given that I was standing for election to the council that June. He told me he would not do so until I was elected. I was duly elected and I resumed a meeting with the same housing officer on behalf of a different constituent and asked him, since he was still there and I had returned, could the meeting continue, which it did.

On foot of my personal experience, I believe it is imperative that this provision be included in the Bill. One can have regulations, but the local authority must respond to Oireachtas Members and ensure they are met by the executive and officials, that their concerns on behalf of constituents are heard and that the right of access to documentation is assured. The Minister has said that agendas and minutes would be circulated and that is welcome but there are circumstances when a Member should be able to seek to be heard at a meeting of their local authority whether they have been members or are seeking to become members.

Last Monday's meeting of Roscommon County Council discussed a major development on the Boyle road, which is of concern to me as a member of the council. If I had known the matter was on the agenda, I should have been able to contact the convenor of the meeting to indicate that I wished to attend and make a contribution. This should also be the case in relation to bypasses such as that in Ballaghadereen. Membership of a local authority is important and has been the beginning of many people's political careers, including those of the Minister, myself and others.

As Members of the Seanad, councillors are our electorate. I accept the argument that the role of Deputies and Senators will be greatly enhanced in the public eye. Will the Minister make provisions for Members to attend, by right, seminars or conferences of national organisations such as the General Council of County Councils and the health boards and meet the councillors who comprise their electorate?

I ask that councillors' years of service be taken into account in relation to pension rights or, at least, that there should be some recognition of their situation. If a member of the local authority vacates their seat during the period 4 May until the end of June, any position they hold on that local authority should be held by the group they represent and that should be embodied in the legislation. If a vacancy occurs on a county council at present, the vacancy is filled by the party that loses that seat. If a member resigns from an authority on the basis of the Bill and he or she is a member of a health board, that party may lose that seat and if he or she is a member of a regional authority, he or she may lose that seat. In the interest of equity, the party that loses a seat due to the resignation of a member should retain that position.

Each local authority member should complete their term of office in 2004. I was elected in 1999 and I fought to get back, so I am reluctant to give up the seat prematurely. I wish to finish my term in 2004, but I also wish to be re-elected to this House or elected to the Dáil.

Mr. B. Hayes

I thank the Minister for staying in the House and listening to the contributions of Senators. Unfortunately, some of his colleagues make a speech and leave. That there is a difference of opinion in all parties is quite clear. The futility of consistency in respect of all parties arguing for this can be put to one side. There have been many fine speeches from the Fianna Fáil benches, Senators Dardis and Tuffy, among others, putting the case for why this legislation is suspect. The difference of opinion in parties is healthy and we should not be afraid of Members coming to the House with an independent mind prepared to state their opinions. I made this point when we had a debate on Seanad reform. Members should not be tied down by party political policy on this. That is what the Seanad should stand for.

Reference has been made to the amendment my colleagues and I have tabled in respect of the Second Reading of the Bill. Standing Order 104 allows it to proceed where there is reasoned opposition to the basic provisions proposed. Fine Gael has set out three reasons it believes the Bill is premature and will not support its Second Reading. This is consistent with the position we have taken on the issue in recent times.

There is a perceived wisdom that the difference between our national Parliament and councils will be good for local government. This wisdom has been supported by a number of laudable national organisations. I do not find the public arguing for this. While members of the public come to me and other Members with a wide variety of issues – not only local ones – this is not an issue that has been brought to my attention. It is interesting to cite a number of national organisations as backing the call but it does not necessarily reflect public opinion.

Unfortunately, we have witnessed a "dumbing down" of mandates in politics at both national and local level. That we frequently undermine the mandate we receive is a party political problem. The Bill is part of the process of undermining the mandate elected representatives receive from the public. This is an issue to which the courts will return if the Bill is passed.

I was taken by the contribution of Senator Tuffy where she set out the serious doubts she held about the constitutionality of provisions in the Bill. The Minister did not indicate a constitutional reasoning to counter the arguments made. Perhaps he will do so at the end of Second Stage.

Article 40 of the Constitution deals with the notion of fundamental rights to all citizens. It does not distinguish between politicians and non-politicians or farmers and non-farmers. Article 40.6.1º refers to the right of citizens to freely express their convictions and opinions. One could argue that the Bill is repugnant to that Article as it gives power to the Oireachtas to tell the public whom it can and cannot vote for. This is repugnant to Article 40.6.1.i as it is a denial of the fundamental right of citizens to freely express their convictions and opinions. If I am not on the ticket in my ward at next election, it could be argued by citizens who vote for me that this is a diminution of their right to express their opinions and convictions.

Article 40.6.1. iii enshrines the right of citizens to form associations and unions. This is wider than the notion of labour law; it deals with political parties, even though there is no mention of political parties in the Constitution. This is an issue to which we should return. Article 40.6.2º states: "Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination". It is arguable that excluding certain classes of politician from exercising their right to be elected to a local authority is repugnant to this Article.

I have only referred to Article 40. Senator Tuffy made a good case for the rights of Deputies and Senators. The Constitution clearly states one cannot be a Deputy and a Senator but it is silent on everything else. We must ask ourselves if we are opening a more difficult situation were this to be opposed in the courts.

If Fianna Fáil supports the ending of the dual mandate, in principle, and sees it as good for the party, it should implement it within the party. The Green Party has a principled position; once a councillor is elected to the Oireachtas he or she automatically leaves the council.

Mr. Bradford

Generally speaking.

Mr. B. Hayes

In fairness to the party, this is what it has done. Fianna Fáil could adopt a similar position. The problem arises when this restriction is applied to other parties. That is the reason the legislation could come unstuck. A case could be successfully mounted on the provisions of the Bill.

Reference has been made to directly elected mayors. The direct election of mayors would be a good thing. I ask the Minister to consider piloting this in a number of cities at the next local government elections.

Ms O'Rourke

The Senator's party opposed this.

Mr. B. Hayes

The Senator's party was against many things.

Mr. Kitt

Fianna Fáil was in favour of more than it was against.

Mr. B. Hayes

The Leader has more experience which should be heard in her contribution. It would be good if we were to pilot directly elected mayoral elections in the cities of Dublin, Cork and Galway. We must think of new ways of engaging the public with local government – the number of citizens who vote in local government elections is small. We have seen the success of this in London and there is a case for it to be introduced in Dublin, Cork and Galway. I ask the Minister to consider this on Committee Stage.

Members of the Oireachtas who are not local councillors frequently fail to put into practice locally what they preach here. At my local council I supported the provision of a halting site and a Government Deputy voted against it, even though it represented Government policy. One of the benefits of keeping Members of the Oireachtas as members of councils is that it ensures we must practice what we preach locally. I have heard the Minister speak about this in the past and he was right. Too many Members of these Houses who are not county councillors hide on important issues such as waste management, zoning and Travellers. It is arguable that some of the hardest decisions one must make as a politician are local as they confront people with changes that must occur in their community. That is one of the inherent benefits of our system which we should not overlook.

Mr. Brady

I congratulate the Minister on his interest in this matter. He is spending a great deal of time in the House. I welcome the Bill for a number of reasons but particularly because it modernises and enhances the role of local government while strengthening the role of Oireachtas Members. How many times at election time have we heard somebody say: "We have not seen you since the last election"? This is particularly the case at local elections when that cry is heard everywhere. These changes can only improve the representation of communities at local level. We have been given much free legal advice this morning but I have confidence in the Attorney General's acceptance of the Bill which will be proven over time.

Many Senators have expressed concerns about access to officials and meetings at local authority level. The Minister has succeeded in addressing these concerns by providing for Members to have direct access to certain information regarding meetings and agendas. I am confident that the further instructions he intends to issue to local authorities will ensure Members who wish to have access will be treated with due respect and able to continue to serve the interests of their constituents.

I am a new Member of this House and have not had the privilege of serving on a local authority. Nevertheless, during the years I have worked closely with councillors and officials at all levels. I have found that once a relationship is built up with an individual it is possible to reach a point where information is accessible. A local representative will have a network of local contacts, particularly in Dublin where the thrust of city council policy has been to decentralise its services throughout the city. In many cases officials are only too happy to share information and co-operate with local representatives, regardless of whether they are Members of the Dáil or Seanad. This benefits all concerned, the local representative, the local authority and the communities concerned. Local authorities have also signed up to the strategic management initiative which imposes firm controls on them.

Freeing up time for Oireachtas Members can only be welcomed by all sides. It cannot be seen as a diminution of their relevance at local level. In fact, it can only increase their relevance as they will be in a stronger position to serve the electorate in their constituencies. Politics at national level have changed radically in recent years. I must disagree with Senator Tuffy who quoted Tip O'Neill's slogan that all politics are local. That maxim, if carried through, actually counters the Senator's argument. The changes in this legislation increase, at both national and local level, the access people will have to their local representatives.

Politics have changed radically. We have a more sophisticated and informed electorate. The issues being dealt with by a Senator or Deputy today are different from those dealt with 20 or even ten years ago. In this age of information technology and the Internet a local representative must be familiar with every issue, national and local. The changes proposed in this legislation are a further step in the modernisation of the service provided by elected representatives for their communities. The legislation enhances the role of the representative and ensures a greater emphasis is put on serving the needs and concerns of local communities and individuals.

I welcome the continuation of the democratic practice of duly elected councillors choosing their cathaoirligh and mayors. Look at the example in the United Kingdom mentioned by Deputy Brian Hayes. The directly elected mayor of London may have been effective in some areas but there is always the possibility that a crank candidate could be elected as a protest. Councillors elect the mayor. This means the public is guaranteed its input into this important matter through its choice of councillors.

The Minister has said the Bill represents the first part of his plans to enhance the role of local government and attract new people into this area. The party in my constituency recently attracted three new young candidates, one female, to contest the next local elections. That is a step forward. We were having trouble attracting good candidates. These candidates are highly educated and committed and this legislation will give them the opportunity to fulfil their dream of serving their local communities at an effective level. The changes will go a long way towards opening up local politics and, thereby, improve the service in towns and cities. I support the Bill.

Mr. Finucane

I expressed my views on the Order of Business this morning when an amendment was proposed regarding the constitutionality of the Bill. As I have heard other Members speak about this aspect, I will not deliberate on it further. However, there is concern and it is possible the legislation will be challenged. My viewpoint is not the view of my party. I have already told its members that I respect their views as to whether they should be members of local authorities. I favour ending the dual mandate. I have been a member of the council since 1985 and it is right that I should give somebody else an opportunity to become a member.

I must, however, express some concerns. Much of the work of elected representatives has a local authority emphasis. If one was to quantify our representations, it would equate to about 80% while 20% would relate to Dáil and Seanad issues and queries to Departments. It is local issues which are pertinent to the community one serves as a Deputy, Senator or councillor and one is often assessed on the basis of how one performs with regard to them.

To call this a local government Bill is a misnomer. It might as easily have been titled the abolition of the dual mandate Bill. Unless one addresses many other serious issues in a local government Bill, one is not addressing the area of local government. The Minister mentioned guidelines to managers on how to handle councillors, a matter I have discussed with the county manager. My biggest concern about leaving the council is that the level of service I get as a councillor will not be available when I am only a Senator. If one is attending area meetings, council meetings, calling to the council building and working at the coalface, one can table specific questions and motions on the agenda and get a reply. Naturally, when one is in ongoing contact with officials, they respect one's views.

I will have to be convinced about the strength of the guidelines the Minister will issue to the local authority on giving information to Senators and Deputies. How strong and enforceable will they be? Will a county manager get his knuckles rapped if I do not get co-operation from him or her? Can I contact the Department of the Environment and Local Government to say the guidelines are not working? They need to be strengthened to ensure we get a level of service that will enable us to represent our constituency in order that people cannot knock us afterwards for not doing so. They should be sufficiently strong that the Department will be able to insist that something has to be done rather than may be done or done at the behest of the county manager or at the discretion of officials. That message must percolate through the county councils if Members are to leave local authorities.

There has been one good aspect to Deputies and Senators sitting on local councils. They brought another dimension to council business because they were in the Oireachtas and familiar with legislation. Will county managers think they have an easier mandate because Deputies and Senators will be removed from the equation? The guidelines must be strong if we are to make the sacrifice of vacating a position on the local authority. It is worth bearing in mind that, unlike other councillors, we are not paid for doing this work, so we can feel strongly about the issue. Other Members have pointed out that doctors, teachers and others who are councillors are not criticised for having a dual mandate. Why is it always politicians who are criticised? The roles of councillor and Deputy or Senator are often complementary.

Oireachtas Members find it difficult since the emergence of strategic policy committees to sustain an 80% attendance record at meetings. It is difficult to fulfil and places a consequent constraint on local authorities regarding when they can hold meetings. Members are only available to attend on Mondays and Fridays.

Strategic policy committees – SPCs – were introduced as a strand of local government but they are not working effectively. That may be because it takes time for them to bed down. It is time that SPCs engaged in serious discussion on issues such as waste management, etc. I referred previously to the farcical situation that occurs at our annual estimates meeting when we spend a long period discussing waste management charges and try to ask questions in the space of a few hours. If the environmental SPC was functioning properly with local authority members and others as members of it, it would prepare a document for councillors for the estimates meeting detailing costs and where savings could be made. This would allow councillors to examine the issue on a more scientific and analytical basis rather than the farcical situation that applies at estimates meetings when we end up discussing refuse charges and scoring points off each other. The serious nature of local government is not discussed.

The Minister should consult county managers to see if the role of SPCs can be strengthened to allow them to be a vehicle for obtaining information in the scrutiny of areas under a local authority's remit, which information could then be given to the council proper. They would then perform a good role because they would be involved in what could subsequently become policy issues. If that is not done, councillors on SPCs and other members who take time off work to attend meetings will become frustrated and will come to see the committee as a waste of time and money. The result will be that they will gradually slip away, thus draining the SPC process.

The committees should be strengthened by involving them in concrete business such as compiling worthwhile reports for the council, etc. For example, councillors could be provided with all relevant documentation in the run-up to the estimates meeting to allow them see the true costs. This would replace the estimates document prepared by the finance officer which councillors receive two to three weeks beforehand and help avoid the type of ritual that is played out at estimates meetings. The process could be much more positive if it were done properly by using SPCs.

I have newspaper articles about how the Minister wishes to strengthen local government. It is a long time since Liam Kavanagh, as Minister for the Environment, published a document on local government reform. We have not advanced very far in the interim. In many instances, I have seen a reduction in the role of councillors. If their role is to be meaningful and the Minister is to pay them full-time salaries – a matter to which he has alluded – he will probably have to give them enhanced powers. Perhaps he will work in this direction.

Assuming the Minister has enough support to have the Bill passed – I am sure it has been discussed at length by the respective parliamentary parties of Fianna Fáil and the Progressive Democrats and has received their blessing – will a councillor who is elected to the Dáil or Seanad at the next general election be obliged to resign his or her position on the council?

Mr. Cullen

It will be automatic in much the same way as it is for Members who are appointed Ministers or Ministers of State.

Mr. Finucane

Does that mean it would not be necessary to include it in the legislation and that it would happen automatically?

Mr. Cullen

Yes.

Ms O'Rourke

Can an Oireachtas Member who resigns his or her position as a councillor and subsequently loses his or her seat stand for election again?

Mr. Cullen

Yes.

Mr. Finucane

He or she might have to return the gratuity.

Acting Chairman (Dr. Henry)

This matter can be discussed on Committee Stage.

Mr. Finucane

I assure the Minister that he will find many different views on the issue. I would be happy if the guidelines to county managers were strengthened to ensure they accord respect to Deputies and Senators when they make representations to the council. There is nothing to stop me contacting council officials, many of whom I have known for years.

Ms O'Rourke

They change.

Mr. Finucane

I know that.

Acting Chairman

Senators should not anticipate the debate on Committee Stage.

Mr. Finucane

It is the responsibility of the Minister to ensure in the guidelines that this is not a matter of discretion for county managers.

Ms O'Rourke

The Senator is correct.

Dr. Mansergh

I support the legislation. It is a major reform which will have far-reaching beneficial consequences for the work of the Oireachtas. Elected Members will put their energies into their Oireachtas work and will act as the interface between their constituency and central Government.

I find the constitutional arguments against the Bill unconvincing. They could equally be applied in arguing that it is unconstitutional to debar Ministers, Ministers of State, civil servants or others from standing in local elections.

Nothing I say should be taken as wishing to denigrate or diminish the role played by those who make the dual effort. The vast majority of people who are councillors and Oireachtas Members put in a huge effort in terms of time and the number of meetings they attend. The increasingly complex nature and rising demands of local government require an enormous sacrifice from them. I can understand why people who have served time in local government are so attached to it. This legislation will be something of a wrench for them.

There is merit in separating the roles of local councillors and Oireachtas Members. These roles are complementary, however, and councillors and Members can help each other, which is what they should do. An example would be councillors asking Oireachtas Members to help them with problems that cannot be solved at local level. The separation of these roles has merit in that it will encourage greater participation. More people will become involved and that is why reports recommend this change.

I know of few councillors who are not Oireachtas Members who oppose the legislation. I do not imagine the Custom House has been inundated by resolutions from county councils opposing the abolition of the dual mandate. There is no doubt that, to a certain extent, Oireachtas Members cramp the style of people who are only councillors and who want to remain so on a full-time basis. This most obviously happens when meetings are held on Mondays and Fridays. It might be possible to spread the work more evenly across the week if that was no longer a consideration.

I am surprised by the attitude of Fine Gael.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.