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Dáil Éireann díospóireacht -
Friday, 23 Nov 1923

Vol. 5 No. 16

LOCAL ELECTIONS POSTPONEMENT (AMENDMENT) BILL, 1923. - LOCAL AUTHORITIES (INDEMNITY) BILL, 1923.—SECOND STAGE.

MINISTER FOR LOCAL GOVERNMENT (Mr. Burke)

I beg to move the Second Reading of the Local Authorities (Indemnity) Bill, 1923. I think most Deputies are familiar with the facts that led up to the situation this Bill is intended to remedy. During the period that elapsed between the summer of 1920 and the coming into operation of the Treaty two authorities were struggling for supreme control of Local Government in Ireland. You had on the one hand the British Local Government Board, supported by British law and by British bayonets, and on the other hand the Irish Local Government Department, supported by public opinion, by the Dáil Courts and by the Irish Republican Army. Throughout the territory at present comprised in the Irish Free State, and in some areas outside it, the public bodies were almost unanimous in giving their allegiance to the Irish Local Government Department. In order to make for continuity of administration it was necessary for the Dáil Local Government Department to adopt the greater portion of the legal code of the British Local Government Board. Accordingly, by decree number I. of the First Session of 1921 the Dáil enacted as follows:

"It is hereby declared that the Local Government code of law in operation in Ireland up to and including the 17th day of September, 1920, be and is hereby adopted, subject to such amendment and alteration as may be directed by order of the Local Government Department of Dáil Eireann, with the approval of the Minister, such order or orders to be ratified at the first meeting of the Dáil following the making of same."

I take it that is in the position of a State document. Will it be laid on the Table, or circulated to Deputies? I think it is customary that when a document of the kind is quoted it shall be made available for Deputies.

If a public document is quoted from it should be made available for Deputies unless the Minister argued that in the public interest it should not be made available.

I have no objection to making it available.

I hope that as the Ministry is making that document available, it will also make available all the Decrees issued by these bodies.

That is another matter, I am afraid.

That does not come within the provisions of this Bill. Under the powers conferred by this Decree orders were issued, inconsistent with the ordinary Local Government Statutes, by the Dáil Local Government Department to local authorities throughout the country. I may say that the British Local Government Board offended in a similar way against its own Statutes. Owing to the circumstances under which this Department was carried on, it was not always possible to conform to these regulations in issuing these Orders, which are usually and properly associated with the administration and legislation of Government Departments.

Owing to the deficiency and imperfection of the records of the period, it is very difficult to verify these orders by legal evidence. The following are a few examples of the kind of illegalities which arose out of the situation, and which this Bill is intended to remedy. To begin with, superannuation granted by local authorities as a general rule required to be sanctioned by the British Local Government Board. The local bodies who gave their allegiance to Dáil Eireann were unable and unwilling to ask for such sanction, and accordingly sanction was not given. Most of those acts were sanctioned by the Dáil Local Government Department, but evidence of such sanction is not always to be found.

The same situation arises with regard to loans and to increases of salaries. The present position is that all such payments were illegal payments and must be surcharged by the auditor. Moreover, any rates struck on estimates of which such extra legal payment formed a part, are illegal and may be quashed on certiorari. Other difficulties arise owing to the fact that certain officials refused to carry out the orders of Dáil Eireann, and consequently local authorities were asked to undertake duties which were outside their statutory powers. For example, County Councils were asked to begin the preparation of a Register through their Secretaries, although this was a duty for the Clerk of the Crown and Peace, and, ultra vires, of the Council. Several acts of a similar kind were committed.

Another difficulty arose owing to the fact that because of the passing of the Criminal Injuries Act by the British Parliament, it became necessary for local authorities to conceal the whereabouts of their funds. The Dáil ordered those authorities to transfer their funds from their local treasurer to un-named trustees. The present position actually is that all such transfers were illegal and must be surcharged against the individuals concerned. To enforce such surcharges would be obviously unfair and unjust. At the same time, if we remit all those surcharges under this Bill, there will be no means of coming at those individuals who have been guilty of misappropriation. Efforts have been made unsuccessfully to find some test or criterion other than the Minister's simple approval of the legality of those acts which it is intended to regularise. So many different kinds of acts are involved and so many grounds for illegalities exist, and, as I said before, the documentary evidence of records is so imperfect, it has been found necessary to ask for those powers, admittedly very wide, in order to clear up the confusion.

Mr. O'HIGGINS

I beg to second.

The other day, on the introduction of the Bill, I asked the Minister if it would make any provision to have County Councils indemnified against any claim rate-collectors might have against them because of the fact that they refused to carry out the duties they were asked to carry out in 1920. He has pointed out that in that period, soon after the County Council elections, garnishee orders were secured against County Councils and other bodies with a view to securing payments in respect of claims for malicious injuries. An order was sent from the Dáil Local Government Department ordering County Councils to change their funds from the National Bank, as it was in many cases, to trustees whose names were not disclosed. Speaking for Co. Wexford, I know that that order was carried out immediately. We were also told to ask rate-collectors if they were prepared to carry out any instructions in that direction, and if they were not prepared to do that we should inform them that we were not in a position to superannuate them.

I was closely in touch with the thing all the time in Co. Wexford, and I am aware that all but four men refused to carry out the instructions. They refused to resign, but they kept their books and their homes had to be raided to secure the books. During the present year these men, through their Solicitors, made application to the County Councils for superannuation, which, I think, they are entitled to under British Law. An inquiry was held under the presidency of Mr. Justice While and he made an award giving these people the maximum pension. If this is going to be carried into effect it will cost the County Council something in the vicinity of 3d. in the £. I would like to know definitely if the Minister has power to prevent the payment of this. I do not think it is fair to ask the County Councils, who carried out definite instructions, to pay those people, and it is not fair to encourage those people, who refused to help the Council when we were in the throes of the war with the British.

If it is absolutely mandatory that these people should get superannuated, the matter should be considered under the financial clauses of the Treaty, or whatever Article of the Treaty makes Provision for the compensation of certain officials. At any rate this should not be a local charge.

The Minister in his opening statement quoted from the decree of the Dáil Ministry of three or four years ago, and promised that having quoted it, it would be circulated.

He promised it would be made available.

I hope that any other decrees issued by that authority will be made available. It has been very difficult to obtain access to those decrees, and if one decree can be made the basis of a Bill, other decrees may, for all we know, affect our consideration of this Bill. There may have been decrees contradictory to the first decree. In any case, if they are to be considered as part of the Governmental Acts of the last few years, they ought to be available to the members of the Dáil and the public.

Now, the Bill before us seeks, on behalf of the Local Government Ministry, to make valid any act of the local authority, or to remit any penalty that may have been incurred by the failure to carry out any duty that was imposed upon the local authority during certain years. It seems to me that complementary to this Bill, and it ought to be part of the Bill, there should be a provision of this kind, that any act of a local authority which was validated by the Minister at the time should be considered to be valid, and ought not to be annullable, if that is a word which is allowable, by the present Minister without authority. I am referring to the decisions that were taken by the local authority in regard to payments for services rendered to those local authorities by employees of those local authorities.

Proposals were made and orders given which were sanctioned by the Minister for Local Government, and on that sanction being given, rates of pay for nurses and others were fixed. The Minister comes along to-day and says notwithstanding the fact that the local authority was acting in accordance with its powers, and that it submitted its proposals to the Ministry for Local Government at the time, and those proposals were sanctioned by the Minister for Local Government at the time, those decisions are now being declared invalid and annulled by the present Minister for Local Government, or by the late Minister for Local Government. I submit that there should be embodied in this Bill, and it should be complementary to the proposals in the Bill, that where the Minister for Local Government validated an action of the local authorities in this period, from the 31st March, 1920, to the 6th December, 1922, that these decisions of the existing Local Government Minister should be declared in this Bill to be valid. It seems to me that that is a reasonable proposition, and ought, on the face of it, to be acceptable. I hope the Minister, in reply, will intimate to the Dáil that he is prepared to accept or embody in the Bill on the next Reading some Clause to that effect.

Mr. O'HIGGINS

I would like to say a few words on the point raised by Deputy Corish, because I have some special, intimate knowledge of the state of affairs that existed in the Local Government sphere in the year 1920. The position of rate collectors throughout the country, after the break with the British Local Government Board, was an extremely difficult one, and one that I had considerable sympathy with, although, in the position I occupied at the time, I could not give rein to that sympathy. Here were men who had entered into bonds, men who had gone to their friends and neighbours and asked them to stand as their securities, and because a political movement arose in the country advocating a certain course, with which they might or might not be personally in agreement, they were invited by their local authorities to act in a manner contrary to the bonds into which they had entered, and contrary to the law as it stood, without any real confidence that that law and the authority behind it would ultimately be upset and overwhelmed. Now, naturally we brought considerable pressure, amounting almost to compulsion, on these people. Naturally we fulminated against them, against their treachery and disloyalty, and against their unpatriotic conduct, and so on. But all the time anyone with a real grasp of the situation knew that from the human point of view these men were in a serious predicament. Some of them may not have been thinking entirely of themselves. They were probably thinking a good deal of those who had been so good to them as to become their sureties. And while a man might be willing to incur considerable loss himself, he is less willing to involve in loss people who had befriended him.

That was the situation, and that was the position of the rate collectors, and most of the rate collectors through the country gave trouble. Most of them hung back in dismay at this extra-legal course which they were expected to take. Some of them were dismissed, until we found that it was bad business to dismiss them. We found the following week in the local papers a notice from the Local Government Board warning the people against paying to the new rate collectors, and pointing out to them that they might find themselves in the position of having to pay again to a duly and legally appointed rate collector. A good many anomalies cropped up in the course of that struggle and a good many points of friction arose. But it does not become us, who, after all, won that struggle, to try and go back now and in any way victimise or in any way lean against the people with whom we had differences. And now at any rate, if not then when the strife was on, we should realise that these men were placed in a very difficult position indeed, and we should realise that not all the country was Sinn Fein, not all the country approved of the course that we were taking, and that the rate collector as much as anyone else was entitled to his individual views. There was the further fact of his bond, the consideration which he ought to have for his sureties. That is his side of the thing, and I am putting it because the other side has been put so strongly by Deputy Corish. I am putting it also because I cannot be expected to have any considerable amount of sympathy with these people who are causing the President and myself, in the position we held then, the utmost embarrassment.

I take it that Deputy Corish is speaking from a brief, from the point of view of his own particular Local Authority, which is in danger of being mulcted to compensate people who, as he would put it, and the members of his Local Authority would put it, let them down in the past. That would be a matter which I suggest Deputy Corish should take up with the Minister for Local Government. But I stand for this that either by the Local Authority or the Central Authority those men should be compensated, and there should be no victimisation now, and no leaning against these men now. They were simply the victims of circumstances. They had their own views at the time. But we won that struggle, and we should not be ungenerous now, and advocate or give any countenance to a policy of vac victis.

It is not my intention at all to do these people out of any remuneration if they were deserving of it. I say that that was a national matter, and the local authorities should not be called upon to pay it. It has created a great amount of discontent. Deputy Doyle knows that we had great difficulty with it in the Co. Council, and that we had difficulty in preventing the whole Council from resigning over the matter.

May I ask if the same conditions do not obtain in other County Councils. Were not these matters dealt with by other County Councils and if they have discharged these obligations and liabilities why should not Wexford do the same? If there is to be a central fund, I hold it should be a central fund for all.

Mr. O'HIGGINS

There were not many cases. There were a few cases like that of the late Town Clerk of Dublin and a few others, and I have no doubt the Minister for Local Government will consider the matter as an External Minister. Each case will be considered upon its merits, and in all such cases the Minister can make representation to the Executive Council or to the Minister for Finance. It is not a matter on which you can lay down any hard and fast rule.

I can bear out fully the statement made by Deputy Corish. We carried out the orders which we received from the Dáil as faithfully as they could be carried out by any county, and we carried them out within six inches of British bayonets. I do not for one moment want to deprive the Rate Collectors who did not do the work of their rights, or to do them any injustice; but if they are to be compensated it is not fair to mulct the County Wexford ratepayers for this compensation. Their representatives did this, and did it to the best of their ability and in good faith, under the instructions of the Dáil at that time, and I hold it would be a great injustice to the ratepayers to be asked now to compensate these men. They should be compensated from a national fund, if there is such a thing, or the money should be found from some national sources. The ratepayers should not be mulcted, and if we in County Wexford thought at the last meeting of the County Council that the ratepayers were to be mulcted in this sum because they faithfully abided by the decision of the Dáil at the time, not a single member would have remained a member of the Council for five minutes. It was with the greatest difficulty, and only after the greatest persuasion from the Chairman, that we induced the Council to hold on until the matter was considered here in the Dáil. The whole Council would have resigned otherwise. Probably the Minister might say that would be a good thing, but we in Wexford do not think so, because the Council has done its duty, and is doing its duty at the present time.

Mr. P. HOGAN (Clare):

In view of the statement of the Minister and that it is proposed to compensate those officials referred to, may I ask if there is any provision in the Bill to compensate those whose services were dispensed with under amalgamation schemes carried out by different public bodies. Is there any provision to recompense those whose services had been dispensed with two years ago, and who have not yet received superannuation?

It is provided under the Local Government (Temporary Provisions) Act. In regard to the question raised by Deputy Corish, of course, each one of these cases will be taken on its merits, and evidence will have to be gone into before we can come to a final decision upon each. I believe it is necessary to compensate those from one source or another if we are to carry out the spirit of the Treaty. Speaking for myself, I must say I am in entire sympathy with the attitude taken up by Deputy Doyle, and Deputy Corish and, as an External Minister, I will bring the matter before the Minister for Finance. If Deputy Johnson brings up his amendment I will be prepared to consider it on its merits.

Would it be in order for me to frame an amendment of the character indicated?

I am afraid nobody but a member of the Executive Council could carry an amendment which would put a charge upon the State; that would even include the Minister for Local Government, who would have to persuade the Minister for Finance before he could put forward such a proposal.

Well, then the matter is out of my hands. I cannot deal with it further.

Question: "That the Bill be read a second time" put and agreed to.
Third Stage ordered for Thursday, 6th December.
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