I move amendment No. 46:
In page 21, subsection (4), lines 27 to 29, to delete ", unless it is satisfied that there are special and substantial reasons for not so doing,".
I would like to hear the Minister's reply.
SECTION 25.
I do not think the amendment is necessary. The proposed deletion would make it mandatory for the courts, where a person is convicted of an offence, to order the person to pay the cost and expenses incurred by the local authority in relation to the investigation, detection and prosecution of the offence. I do not think it is appropriate for the Oireachtas to impose such a restrictive and absolute constraint on the courts. I have taken advice on the matter. I am advised that the courts do not like their discretion in these matters being circumscribed by primary legislation.
I thank the Minister for his reply. Frankly, I do not give a hoot whether the courts are worried or offended by this fact. I am fed up listening to local authority officials around the country who tell me that when they take actions under laws passed by this House and people are fined, the judge orders costs against the local authority or, for some strange reason, orders the local authority to pay all the costs. With laws like this there is no incentive for local authorities to bring these cases forward unless their costs will be met. Whether or not I am coming into conflict with the courts, I do not trust the courts to treat local authorities fairly in this matter. The record proves that. I am probably in contempt of court and will be hauled up somewhere or other.
Chairman
No, you cannot be. It is extremely unlikely.
I will pray that I am never before a judge. I know the legal advice the Minister receives from the Attorney General who is a legal person with friends in the legal profession. The Minister will be aware, as will some Deputies, of the number of times costs have not been awarded to local authorities. If that happens often enough, as it does in planning cases, there is a reluctance on the part of local authorities to take cases because, as I have found from experience when I have urged them to do so, they feel there is no point as they will only get a miserly fine imposed while incurring huge legal costs. I appeal to the Minister to make it as near to mandatory as possible.
Chairman
Something is wrong with the courts because outrageous claims made against local authorities and State companies have been upheld and awards made. I conducted three surveys in my constituency three years ago about different aspects of the criminal justice system and most people were dissatisfied with the courts.
This has much wider implications. If we are to learn anything from the water charges experience and the number of court appearances, particularly in my area of Fingal where they have featured widely in local media reports, it is that the courts, by indulging in this discretion, are perpetuating the habit of resorting to them because of the unlikelihood of costs being awarded against offenders. This makes people completely reckless in their attitude to local authorities. I wonder if the Minister might learn from that and reflect on what Deputy Dempsey has proposed. Similarly, many local authority housing estates are unfinished, construction companies seem happy to throw down the gauntlet to local authorities and the courts do not seem rigorous enough in forcing developers to finish the estates. These serve as examples of what can happen when discretion is as wide as it seems to be in this case.
We have gone as far as we possibly can in drafting this to make it mandatory without saying there are no exclusions or discretion. The subsection says the courts shall order the person to pay unless it is satisfied there are special and substantial reasons for not doing so. In my initial comments, I steered away from criticism of the Judiciary, but the rest of the committee has since indulged in it. I have had one fear put to me and it is something from which other legislation has suffered, for example, the banning of bituminous coal in Dublin. Courts will not convict if they do not have discretion in relation to costs. For that reason, we should leave this little element of discretion in obliging courts to award costs of investigation and prosecution unless there are special and substantial reasons for not doing so.
Chairman
The courts must feel they are the arbiters of justice. The public feels that the courts often fly in the face of the intention of legislation and that they are governing, not the Legislature.
I see the Minister's point. I hope this will be kept under constant review.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 21, subsection (5), lines 37 and 38, to delete ", on the application of the local authority,".
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 48:
In page 21, line 43, to delete "household" and substitute "municipal".
Amendment agreed to.
Section 26, as amended, agreed to.
Section 27 agreed to.