Amendment No. 2 is cognate on amendment No. 1 and amendments Nos. 3, 5 ,6, 8 and 10 are related. All may be taken together by agreement. Is that agreed? Agreed.
SECTION 2.
I move amendment No. 1:
In page 3, subsection (1) (a), line 27, after "Minister" to insert "or the Government of Ireland".
I listened with great interest to the Minister's contributions on Second Stage in both Houses of the Oireachtas. I made my position clear on Second Stage in the Dáil. However, I bow to the collective wisdom of the law officers of the State, the excellent public servants who advise the Minister and the integrity of the Minister in his contribution and his justification for having to bring this Bill forward.
The Commissioners of Public Works have served this State for 150 years and operate under two Acts of Parliament — one dating from when this island was under a different jurisdiction and one passed by the Oireachtas — which give them specific powers to act as commissioners. However, they also have a duty, responsibility and legal powers to act and execute decisions on behalf of the Government. In order to ensure that we never again find ourselves in a situation where there is any doubt about the veracity of their powers or the power of a Minister, acting on behalf of the Government, to give them a direction to execute or any power which would affect a Cabinet decision to direct the Commissioners of Public Works, it is vital to clarify the situation. I tabled these amendments to enable the commissioners to act in future in their own right, or under the direction of the Minister for Finance to whom they report or to carry out directions on behalf of the Government.
I thank Deputy Treacy for explaining the thinking behind his amendments. We took his proposals very seriously as we do not want a Bill which would have to be amended by a future Government. We consulted with the parliamentary draftsman who advised that the standard practice in drafting legislation is to assign powers to a Minister. He also stated that there is a well established precedent that the commissioners are responsible to the Minister, who is a member of the Government. The commissioners act on behalf of the Government and he considers, therefore, that the proposed amendments are unnecessary and unacceptable. On the basis of that advice, I do not propose to accept the amendments.
I have the utmost respect for all the professional advice I get but I always make up my own mind at the end of the day.
I made up my mind on the basis of the advice I got.
I respect the Minister's position and, as far as I am concerned, professionals such as lawyers and public servants have a role to play. This Bill was introduced because lawyers, acting in a case in the higher courts, obtained a decision which the Attorney General accepted invalidated the powers of the Commissioners of Public Works to make an offer of compensation to the victims of flooding. That was a legal process which was concluded by legal professionals. As legislators we are elected by the people and we have to either be seen to legislate for the people or accept that at all times lawyers will direct us as to what to do.
This is embarrassing as people have been waiting over 12 months for offers of compensation. They were given firm confirmation of this in good faith but such offers were not possible due to legal decisions and advice from lawyers. We want to clarify the position. It is incumbent on us, as legislators, to ensure that we put our stamp on this Bill so that the totality of powers for execution of future Government decisions are sufficiently flexible to allow the elected Government to make firm, binding decisions which can be immediately effected when required.
We did not take this lightly and we knew that the Deputy did not table the amendments without giving them a great deal of thought. Our consultation with the parliamentary draftsman was also a consultation with the Attorney General's office. We got very clear advice that these amendments are unnecessary as the commissioners are responsible to the Minister and, through the Minister, to the Government. On foot of that advice, and for no other reason, I felt the amendments were unnecessary and I do not propose to accept them.
Would the Minister reconsider that decision?
I will not because we have already considered the issue very carefully. We are not averse to the principle of accepting amendments which would improve the Bill and did so in the Seanad. However, we think that these amendments are unnecessary and on that basis we are not willing to accept them or reconsider that decision.
I greatly regret that because the credibility of the case for this Bill has been undermined by the fact that these amendments are not being accepted.
We accepted amendments in the Seanad from the Deputy's party — we are not adverse to the principle of accepting amendments.
These simple amendments clarify beyond any doubt the power of the Government which is elected by the Parliament which, in turn, is elected by the people to give directions. I want to ensure that in future these directions can be carried out without the Commissioners of Public Works having to look over their shoulders at lawyers to see if they can go left, right or forward. I appeal to the Minister to accept these amendments.
Not only has the Attorney General advised us that these amendments are unnecessary, he also said that they could conceivably lead to confusion because they would introduce a new wording which is out of line with the normal practice, that the commissioners are responsible to the Minister and the Government. Apart from the fact that the amendments are unnecessary, introducing a new form of words could cause confusion. On both counts, I could not accept them.
Based on what the Minister said, I will give an example of potential future conflict. If there was an electrical explosion to which the Government had to respond and, the Minister for Transport, Energy and Communications was given a directive to take certain action and the only State agency with the capacity to execute those decisions was the Commissioners of Public Works — the commissioners do not report to that Minister — would we find ourselves again in a situation where they could not carry out those decisions because an intelligent lawyer spotted an opportunity and took a case to the courts?
More than other State bodies, the Commissioners of Public Works operate on an agency basis for a number of Departments; for example, in the building of prisons they act as agents for the Department of Justice. The commissioners' power to act for Departments is well established and provided for.
Like me, Deputy Treacy was at the coalface for some of this activity and I can see what he is trying to achieve. However, I must take the Minister's advice that if what the Deputy proposes in this and the related amendments is not necessary, it will not improve the position. When this Bill becomes law, the Office of Public Works will have the duty to carry out those functions. Deputy Treacy said we should never again be in the position where this work cannot be done. However, if we have another dry spring like this the problem will not recur — that is the real solution. Last year we had freak weather; compensation had to be paid to householders who had to leave their homes which were under water for two to three months. Neither the Deputy nor I will rest easy until this problem is solved and measures similar to those in this Bill will never again be necessary.
Amendment put.
The Select Committee divided: Tá, 6; Níl, 11.
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Tá |
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Ahern, Michael. |
Moffat, Tom. |
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Browne, John (Wexford). |
O'Hanlon, Rory. |
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Foley, Denis. |
Treacy, Noel. |
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Níl |
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Ahearn, Theresa. |
Kenny, Séan. |
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Browne, John (Carlow-Kilkenny). |
McCormack, Pádraic. |
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Connaughton, Paul. |
McGrath, Paul. |
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Coveney, Hugh. |
Mitchell, Jim. |
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Creed, Michael. |
Walsh, Eamon. |
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Ferris, Michael. |
Amendment declared lost.
Amendments Nos. 2 and 3 not moved.
Amendment No. 4 is ruled out of order because it involves a potential charge on the Exchequer.
I would like to discuss that at the end of the section.
Amendments Nos. 4 to 6, inclusive, not moved.
Amendment No. 7 is ruled out of order because it involves a potential charge on the Exchequer.
I would like to discuss that as well at the end of the section.
Amendment No. 7 not moved.
Question proposed: "That section 2 stand part of the Bill."
I get more frustrated the longer I survive in this House. There seems to be no real role for elected Members of Parliament to effect legislation unless one is a member of a Government party.
That is not true in this case. We are not taking amendments here because we accepted Opposition amendments in the Seanad.
The Dáil is at least equal to the Seanad.
I appreciate that but the Deputy's party put down many amendments.
We have a lot of expertise. I am frustrated with section 2. When I was Minister of State I spent 12 months on Committee Stage of a Bill and no Bill had more Opposition amendments accepted during that period. It was a wide ranging Bill. Nobody has total wisdom on any issue. We are all co-dependent and have a contribution to make. We will serve our country best at the end of the day if we can come up with the best collective contribution to legislation.
The problem with law in this Parliament is that, as legislators, we are forced by lawyers into a narrow attitude to creating law. This Bill deals with flooding, not with explosions or disasters. It is specific. We will be in a similar situation if there is another problem in the future. Why can we not learn from the experience of the past year, the trauma suffered by the victims of the flooding, the difficulties that have arisen, the legal impediments that have been placed in our way, the need to have new legislation, the role of the Government and Parliament and the experts in the Office of Public Works and say once and for all that we recognise there have been problems, we have come together as legislators to resolve them and that we are prepared to put into position a corpus of legislation in an Act that gives the flexibility to the Government, irrespective of who is in office, and the Commissioners of Public Works to respond to any situation irrespective of its nature?
No account is being taken in this Bill of a storm, fire, explosion or any other natural or artificially created disaster. We cannot comprehend what may happen at any time in the future. Can we now accept that this is an opportunity not only for us to reflect on the past and legislate for it but also to take account of the future and ensure the law is there to enable future Governments, the Office of Public Works and State agencies in general to respond? Ruling out these amendments on the basis that they involve a potential charge on the Exchequer is not right. There may be a potential charge on the Exchequer if something happens but there will not be if nothing occurs.
If the Minister will not accept these amendments, he should table similar ones on Report Stage, give us an opportunity of supporting him and have them enshrined into the Bill so that future generations will be able to say that this Minister left his mark on a Bill that will serve this country for generations and centuries to come. We have an opportunity to reconsider our situation and I sincerely request the Minister to take these amendments on board.
In the debate on the Arterial Drainage Bill last June we put down amendments concerning compensation but they were not accepted. As we predicted at that stage, further action would have to be taken by the Government and the Minister and this Bill is the result.
As the Minister said, amendments put down by Members of the Seanad were accepted. I welcome this Bill but I regret it was not brought in during the middle of last year. Although the amendments we put down would not have been comprehensive enough, the Minister and his staff would have been able to come up with a comprehensive Bill if they had accepted the principle of what we had said at that stage.
Section 2 (4) states: "Where the Commissioners receive representations under subsection (3) of this section, they shall thereupon cause them to be referred to the Minister and the Minister shall, within 21 days of such receipt, consider the proposal . . . and the Commissioners shall give effect to the determination and notify the person in writing thereof". Is it necessary or wise to include a specific time limit in that subsection? Is there a particular reason for not including a time limit for notifying people whereas the Minister must make the determination within 21 days?
First, as Deputy Treacy knows, these amendments were ruled out of order and I must respect that. I was not necessarily depending on that because his amendment addresses all sorts of disasters, many of which could not be the responsibility of the Commissioners of Public Works. The reason the Office of Public Works was asked to become involved in the situation in the Deputy's county, in particular, is that it has particular expertise and increased responsibility for drainage. Drainage has a direct relationship with flooding and it is a relevent activity with which the Commissioners can be involved. Certainly, it would not be relevant to conclude that the Commissions of Public Works have become the Department for Disasters. Other agencies, such as the health boards, the local authorities and the Departments of Health and Energy, would have more direct involvement in other disasters and, therefore, to try to broaden this Bill, although well-intentioned, would create great difficulties with other Departments and bring the Office of Public Works into a role for which it was never intended. I do not think I could responsibly push it in that direction.
The Deputy also sought to substitute "houses and business" for "other property" which is unnecessary because the wording is sufficiently all-embracing to take into account what he had in mind.
On Deputy Ahern's comment, it is fairly clear that "the Minister shall, within 21 days of such receipt consider the proposal and the representations and determine whether assistance should be given or, as the case may be, compensation should be paid, to the person concerned, and the Commissioners shall give effect to the determination . . . ". When the Minister makes a decision, the Department will notify the person in writing within a fairly short period. It is not necessary to limit the Minister and his officials.
It would not limit him. It would ensure the determination would be sent out.
Any Minister who made a decision and did not have it implemented should not be a Minister.
I suggest it is examined by the Minister and Deputy Ahern as it can be clarified on Report Stage.
This Bill deals only with flooding. There has been much study and debate, suffering and hardship over the past year or two and local communities, local authorities and Departments have been involved in the matter. This morning, 16 or 17 people are discussing this issue. I know people are tired hearing me say that if we could tap everybody's energy into putting men to work with spades and machines, the problem would have been solved long ago. I will continue to say that at every opportunity until progress is made on the matter. A rough calculation of the expediture to date, between compensation and everything else, amounts to about £8 million, which would go a long way towards solving the problem. The sooner we get down to solving the problem, the less need there will be for meetings and amendments to Bills because they will not be necessary.
I listened with interest to the Minister. I can understand his point of view and what he wants to achieve. Let us look at another scenario. For instance, if there was a raging storm and property around the coast was affected, must we go through the same situation? Are we saying that the Office of Public Works, which has a track record — and albeit a diminished role, at present, much to my disappointment — in all types of activity, has not or should not have the capacity to deal with these situations? Why must we risk the necessity for legislation in future? No agency has served the State better, done more for our country or responded to greater demands from Governments than the Office of Public Works. I cannot understand why we should not expand the Bill to take that into account.
I take great comfort in the Minister saying my amendment is unnecessary since "businesses and other properties" can be taken into account because the flooding has left people in a sorry state. I am aware of three businesses in County Galway which have gone to the wall as a result of the flooding so I take some comfort in the knowledge that the Minister will be able to consider them as a result of the Bill. I ask the Minister to consider the amendments on Report Stage.
The Deputy mentioned a disaster or storm on our coasts. The Commissioners of Public Works would not have a role to play in such a disaster.
Why?
It would cause huge confusion. If there is storm damage along the coast, the local authority has responsibility; the Department of the Marine has responsibility for coastal erosion and there are existing agencies, such as the health boards. Why should the Office of Public Works take on a whole lot of new roles? Clearly, it has a role when there is flooding because of its drainage capabilities but to extend that to all sorts of disasters would not be appropriate.
On Second Stage, it was suggested that the Minister would consider an appeals system where the Commissioners refused a request from a person. The Minister has not included such a provision in the Bill which states that the Minister shall consider a situation within 21 days but the general public would be happier if there was an independent appeals system where the Commissioners refused to make a payment. In general, the Minister will seldom go against a decision by his officials. Did the Minister give an independent appeal system any thought?
Yes. It was discussed at some length in the Seanad. In fact, the wording of the appeals provision was substantially that proposed by the Deputy's colleague from County Clare. Taking on board what Deputy McCormack said, if certain elements of the Commissioners' proposals for humanitarian aid or relocation are regarded as unsatisfactory to the people to whom the offers were made. They have the power to come directly to the Minister who must decide. One then goes on to a separate and independent appeals process, similar to that of An Bord Pleanála and there is an ultimate appeal to the Supreme Court. The appeals processes in Ireland have often become a deterrent to development and progress. This is an adequate response to a requirement for another bite at the cherry and, in the circumstances, was a good amendment to accept. I am not in favour of going beyond it.
I listened with great interest to the Minister. He made the point for me when he asked why should the Office of Public Works become involved. He talked about the local authorities, the health boards and the Department of the Marine. In this case we have the Office of Public Works, the health boards, the local authorities and various consultants. I put down these amendments because I know the expertise is in the Office of Public Works and that it has a co-ordinating role and the ability to respond. It reports to the Minister for Finance.
In future, it may be necessary to make funds available for disasters. Funds can be administered, through the Minister for Finance, by the Office of Public Works which can co-ordinate the roles of all the agencies and bodies and ensure the matter can be dealt with rapidly rather than waiting 15 months before we can proceed. It is not putting another responsibility on the Office of Public Works; it gives it a facility to respond in the event of a disaster and there will be a subsequent Government decision meaning it can operate and make decisions.
When the £2.5 million agricultural compensation was made available, there was only a 10 per cent check on the applications because of the necessity to get the money out quickly to the people who needed it. As a result mistakes were made in filling some application forms. People who genuinely suffered did not get compensation and people who only thought they suffered got it. I am interested to know about the appeals process.
If a person filled in the form with details of the number of acres flooded and it was comparable to the number flooded in other years, he did not get compensation. If there was a difference in the number of acres flooded this year, people were compensated. That confused some people. I have one case in mind about which I appealed at the time, but it was not concluded. A farmer whose land was entirely flooded allowed his land to be used for access to a village that was cut off. As a result his land was torn up. He did not get compensation because he simply put down the same number of acres as had been flooded the previous year. I am interested to know the mechanics of this. Does the 21 day appeal only come into operation when this Bill is passed?
The appeals process only becomes law when this Bill becomes law. However, it would apply to the sort of situation the Deputy described if it arose in the future.
Question put and agreed to.