I beg to move amendment No. 1. I think amendments Nos. 2 and 3, which are also in my name, hang with amendment No. 1, and I should like to deal with the three on this occasion.
Electricity (Supply) (Amendment) Bill, 1935—Committee.
Section 1 agreed to.
SECTION 2.
(3) Where legal proceedings in respect of a post, pole, or other erection, the erection of which is rendered lawful by this section, were instituted against the Board before the 25th day of January, 1935, and are pending (whether in a court of first instance or a court having appellate jurisdiction in respect of such proceedings) at the passing of this Act, the foregoing sub-sections of this section shall be deemed, for the purpose of such proceedings, not to apply or have effect in respect of such post, pole, or other erection, and the said proceedings shall be determined as if the said sub-sections had not been enacted.
The following amendments in the name of Deputy Mulcahy were on the Paper:—
1. In sub-section (3), lines 3/4, to delete the words "before the 25th day of January, 1935."
2. In sub-section (3), line 3, to delete the words "25th day of January" and substitute therefor the words "11th day of April."
3. In sub-section (3), line 3, to delete the words "25th day of January" and substitute therefor the words "1st day of April".
Of course, amendments Nos. 2 and 3 would fall if it was decided that the words proposed to be deleted in amendment No. 1 should stand.
That is so, and that is why I refer to the implication of the three amendments. Amendment No. 1 proposes to delete from sub-section (3) the words before the 25th January, 1935. The Minister by his Bill, as at present framed, is depriving people of rights when they have established their claims before the courts in respect of certain injuries as a result of posts being erected and which a court has decided to be an obstruction or a nuisance. The Minister interposes in this matter simply because a decision has been given in the courts to the effect that certain people have rights and are entitled to certain compensation. The insertion of the words "25th January, 1935," in this sub-section here was to exclude persons who have such rights from exercising those rights prior to the date upon which this Bill becomes law. There are certain cases in which a number of people have already taken legal proceedings to establish the rights they have by law. There are persons who have received serious injuries and they have to establish before a court the fact that they have suffered those injuries and the particular circumstances in which they were received. They cannot go successfully to the courts with their claims unless they do establish the fact that they have received these serious injuries and have received them in certain circumstances. We are dealing with a limited number of cases of persons who suffered injuries and incurred them explicitly as the result of some of the Electricity Supply Board's acts. In these circumstances I think it is unreasonable that the Minister should cut off rights from persons who were injured, in this particular way, from a date prior to the date on which this amending Bill becomes law. I ask the Minister to recognise that is the position and to accept amendment No. 1. If that amendment is accepted these rights will be guaranteed when this Bill becomes law. The Minister may make a case against the amendment. This Bill was introduced on the 11th of April and he may argue that between the 11th of April and the date of the passage of this Bill claims which were not substantial, or were frivolous, might be made in fairly large numbers, although I do not think that there are a large number of cases that will come before the court. The Minister might argue that he already had given warning to all concerned that the rights, if they existed, which they had and which it was expected they would have when the original legislation was passed would be withdrawn. The Minister might have some case for refusing to accept No. 1 while agreeing to accept No. 2, but I think in legislative fairness to people who have certain rights, and particularly to people who suffered injury as the result of the public action of the Electricity Supply Board, it is quite unreasonable to withdraw those rights before legislation has been passed withdrawing them.
The Deputy's argument is based on two assumptions: first, that it is proper and right to take action against the Electricity Supply Board in consequence of the Board having erected poles for the support of transmission lines in roads and streets, and, secondly, that it was the intention of the Oireachtas to give that right, and that, in fact, it was given by the Act of 1927 and that now it is being taken from them. Neither of these assumptions is correct. I do not think that there is any doubt that the Oireachtas in 1927 intended to confer upon the Board power to erect those poles, and the Board acted on the assumption that they had that power. At no time was its power questioned between the period that intervened between the constitution of the Electricity Supply Board and the 25th day of January this year. A decision was given by a certain Circuit Court Judge in an action taken by a Miss Creegan and the decision was that the Act of 1927 did not in fact, either explicitly or by implication, confer that right upon the Electricity Supply Board and that, consequently, these poles were a nuisance. That was the situation which had to be remedied at once. No one could contemplate the possibility of that situation being allowed to continue when the Board would be subject to actions in respect to every pole erected. In this legislation, as introduced, there is the retrospective effect that the law is and should be deemed to be as the Oireachtas in 1927 intended it should be. But we are preserving the interest of the lady who was successful in the Circuit Court if her case is upheld on appeal. The appeal has not yet been heard, but in the event of her winning that appeal she is secured in the damages awarded to her. But apart from that the intention is that the law should be put into the position that it should be in when the Act of 1927 was framed, and that its operations should be retrospective so as to protect the Board from a very large number of cases that might be brought against them. I think it would be inadvisable to accept any of the amendments in the Deputy's name. No other case has come on in the interval although I understand certain actions are contemplated.
Has the Electricity Supply Board power to erect poles on private property? Has not that been questioned?
It has never been questioned. The matter we are discussing here is in regard to poles erected in streets and on roads.
Can they be erected on private property?
No one has questioned that right.
Will the Board consult the owners, and not sink poles, for instance, in front of a house, and destroy the value of the property?
This relates only to poles on roads and in streets, and the only question here is to make the matter explicit.
But if the Minister wants it one way we ought to protect the rights of owners of private property as well.
That does not arise here.
The Minister wants us to give way where poles are erected on public property?
On roads and streets.
Quite so. And some of us are willing to give him that right but, at the same time, we feel that in the case of private property the rights given to the Electricity Supply Board are abused.
I might be prepared to agree, but, I submit, that question cannot be raised on this Bill. This Bill deals only with Sections 51 and 52 of the Act of 1927, which gives the Electricity Supply Board the right to erect poles in the streets and on the roads, subject to consultation with the local authorities. The wording apparently was defective, because when Miss Creegan took her case to the Circuit Court Judge Davitt decided that the section did not give that power to the Board. If this lady should be successful on appeal we will protect her rights if that appeal is upheld. Deputy Mulcahy's amendments would give similar rights to anyone who proceeded against the Board before the 11th of April. There are three alternatives. I do not think it possible to agree to any of them, nor do I think we are depriving any persons of their rights. It is purely an accident that the power to take this action arose at all. The intention of the Government in 1927 was clearly to give power to the Electricity Supply Board to erect these poles and, if that intention had been properly expressed in the Act of 1927, no such action could have arisen.
I had not intended to intervene in the debate on this amendment until I heard the Minister. He is not correct in saying that he is not depriving the people of a right. They have the right, according to the law as it stands. That right is being taken from them. Although I quite admit that the interjections of Deputy Good might not, at this particular stage, be quite relevant to what we are discussing, they may furnish a motive for refusing the Minister the powers he now asks. Technically, I object to the Minister or the Electricity Supply Board or anybody else, except the judges, deciding what was the intention of this House. Once a Bill becomes an Act, nobody but the courts can decide what the intention of the House was. The Minister's argument is entirely invalid. The Minister is depriving the people of a right that they have enjoyed up to the present. Therefore, the measure is, to that extent, retrospective. The Minister is, I quite admit, preventing the Act becoming retrospective so far as certain individuals are concerned. One individual has brought an action. I suggest that every person is in the same position as that individual and should be treated in the same way.
I suggest that it is a valid argument in support of this amending legislation that it is the general opinion that the Oireachtas in 1927 intended to confer this power on the Electricity Supply Board.
I think the argument is entirely invalid. Only one set of persons can decide what was the intention of the Oireachtas. Deputies may have had ten different reasons for supporting a piece of legislation. I may have had one reason, the Minister may have had another and Deputy Good may have had another. There is only one method of arriving at what our intentions were, that is by a decision of the court.
We are entitled to amend the legislation.
We object to what you are doing because you are interfering with rights already in existence. Though the Electricity Supply Board may have to pay a few pounds, the principle is bad. The Minister should not introduce a bad principle in legislation for the sake of a few pounds.
I myself do not favour retrospective legislation. This legislation would not have been necessary if our predecessors had done their job a bit better.
But it is retrospective legislation.
We have got to repair the damage done.
It is not necessary.
We must rectify the mistakes made.
The board can bear the expense of the damage done, which is very slight. The Minister is violating a big principle for the sake of a few pounds by not accepting Deputy Mulcahy's amendment.
I support this amendment. It is well known that the immunity of the State in actions of this kind is almost complete. For once, I suppose, in the whole history of the State, that immunity is being broken through. There is an opinion that Government Departments in general should be made liable in actions of tort, but there is an immunity in that respect at present, except for the provisions of the Road Traffic Act. In this case, that immunity is being broken through, and it seems to me absurd that the Minister should argue that there was any intention behind the principal Act other than the intention to be gathered from the words used in the Act. As Deputy O'Sullivan has said, it is for the courts to determine what the intention of the principal Act was. In this particular case, the learned Circuit Court Judge has found that the power to put these poles up on public streets and roads does not exist. I do not know what intention the Minister has, but one can easily imagine that several solicitors throughout the country are instructed at the moment in respect of claims. Let us take it that there is only one case in which instructions have been given to a solicitor. Some person, let us say, has been injured by reason of something done in violation of the powers given to the E.S.B. It does seem to me to be hard on the person thus injured to say that his right is to be taken away by retrospective legislation. I do earnestly ask the Minister to reconsider this Bill and also the question as to whether or not he will accept this amendment.
When the Road Traffic Bill first came before the House, there was a very considerable volume of opinion on all sides that the State should be made liable for accidents caused by its servants in a way in which it had not been liable before. The Traffic Act was finally put through by the Minister's Party and a clause was embodied in it which carried out the expressed intentions of the Fianna Fáil Party and met the wishes of the House fairly generally whatever doubts they might have about the difficulties and objections that might arise in carrying it through. But the State was liable. I do not want to go into the question as to whether we can argue here and now was to what the intention of the Dáil was, but the Minister is quite wrong if he attributes to me the opinion that the Dáil did not at the time of the passing of the original Act wish to give the E.S.B. powers to put up poles. I would have thought it an absolutely necessary thing to do at the time. It was not done, within the terms of the Act, in the opinion of the Courts. One person, at least, went before the courts and established his right there to compensation for injuries received. Now the Minister states that no other cases have been brought before the Courts, but I am afraid he cannot be fully informed on that. I think I am correct in saying that additional cases were instituted against the E.S.B. prior even to the date of the introduction of this Bill, and I would suggest that the reason for its introduction is that additional cases were instituted against the E.S.B. I quite agree that the Dáil now wishes at the earliest possible moment to put the E.S.B. into the position that it can erect poles and standards in the public streets after consultation with the local authority concerned. But I do not think that in doing that this House wants to take away from people who have instituted proceedings against the E.S.B. in the meantime rights that they had. These people have incurred expense in a particular way because of serious injury caused arising out of that. I do not think that the House should take away from such people the rights that they have had up to date and before the passing of this Bill. I do not stand on the date of the Act, but I do stand on the date of the introduction of this measure and of the notice that was given to the public and to all persons who might have these rights that the intention of the Government and of the Oireachtas was that the E.S.B., in order to carry out these works effectively, should have these rights. I think that the Minister is asking the House to do a very definite damage, which is quite unnecessary and unworthy of Parliament, by asking the House to pass this Bill as it stands.
I just want to say that there is no intention in this Bill to take away from any citizen whatever right of action he has against the Electricity Supply Board for damages occasioned by the actions of the servants of the Electricity Supply Board.
I did not suggest that.
This is an entirely different thing, and deals with the damages a person might incur by colliding his car, say, against one of the poles erected by the Electricity Supply Board and is to give that person the right to recover damages against the Board. It would be just as sensible to give a person rights to claim damages against a county council in a case where his car collided against a bridge on the public road that had been erected and was being maintained by that county council.
But this Parliament gave people this right that I have been speaking of.
The Deputy is entitled to say that, having regard to Judge Davitt's decision.
And that is the only decision we have at the moment.
I think we are entitled to draw a reasonable inference from the fact that the Electricity Supply Board since 1927 has acted as if it had this power conferred upon it, and that neither the Government that was in office up to 1932, nor the Government that has held office since, considered it necessary to introduce amending legislation in order to consolidate that power. However, there is not much to be gained now in having a protracted argument as to whether a change in legislation, which will be retrospective in any case, should exclude cases where proceedings against the Electricity Supply Board have been instituted from the 25th January or some other date, and if the Deputy feels strongly on the matter I am prepared to accept amendment No. 2.
Thanks. I think it is reasonable.
Amendment No. 1, by leave, withdrawn.
Amendment No. 2 agreed to.
Amendment No. 3 not moved.
Before the section is put, would there be any desire on the part of the Minister to deal with the matter that I raised a few moments ago? Owners of private property feel a grievance with regard to the action of the Electricity Supply Board in erecting poles on their property without prior consultation and in positions that are objectionable because of the situation of their residences. In that way injury is caused to private property. Now I want something done that, while not causing any hardship in the way of making it compulsory on the Electricity Supply Board, will ensure consultation with the owners of property. If that is done difficulty will be got over in very many cases.
It would be very difficult to put that into legislation.
I think it is very desirable that it should be done.
It is certainly very desirable that the Electricity Supply Board should exercise its powers with due regard to the interests of the owners of property on which poles are erected. That has been frequently pointed out to them. I should say, however, that most of the complaints arose during the early construction period when the Electricity Supply Board was spreading its networks throughout the country. But recently in the case of minor extensions the complaints received have not been anything like as numerous as heretofore. I do not think I have received a complaint for 12 months with respect to the erection of new poles by the Electricity Supply Board, whereas in the earlier period the complaints were quite frequent. That may be due to the change in conditions and also to the fact that many representations have been made to the Electricity Supply Board both by the Department of Industry and Commerce and by private interests throughout the country with regard to the manner in which they were exercising their powers, and I think they are doing their best to conform to the wishes expressed in these representations.
I know that they do their best in all cases.
Does consultation with the local authority imply consultation as to the route to be taken by a minor extension from one point to another?
There is no limitation upon the consultation imposed by the Act.
I have known instances, certainly one outstanding instance, where a local authority was not satisfied with the route that a line took from one point to another. It went across fields instead of taking a line along the road, which might be a little longer, but which would have been of great service because it would have provided facilities for people to become subscribers. No advantage of that sort arose, or could arise, by taking the line across the fields. I think there should be consultation, too, with the owners of property when erecting poles in a field. Almost always they are put in the middle of a field. The piece of land that a pole will take up is not worth speaking about and no landowner has much of a grievance about that, but what he may have a grievance about is the amount of land that may be wasted, especially if the pole is erected in the middle of a tilled field. I think that, if a little thought were given to the matter, the pole could be just as easily erected near the fence or on the headland and if it were it would cause no obstruction. I think it would be no harm if there was consultation with the local authority as regards the route to be taken in the case of a minor extension. Of course, in the case of a main extension, I can quite understand that an engineering line has to be followed. The poles must be erected in the proper place, from the engineering point of view, but I think that in the case of minor extensions attention should be paid to the points that I have brought to the notice of the Minister. If consultation with the local authority extended to consultation as to the route, the service, and the subscribers that could be got on that route, and also if you would not give the right to the owners of land, as suggested by Deputy Good, to consult with the Electricity Supply Board, surely you ought to give to local authorities the right to consult on behalf of the owners of land within their area. It is in the subdivisions that the most harm would be done. I can quite appreciate the difficulty of framing legislation to meet those cases, but I think that the Minister should consider how to overcome that difficulty. In addition, before concluding, I should like to ask the Minister has he got any dossier from the law agent of the corporation?
I am dealing with that matter.
And meeting it as far as you can?
I had better not commit myself on that. The main Act confers on the Electricity Supply Board the obligation of consultation with the local authority wherever they are erecting poles over the property of the local authority, along the roads or streets, or in the area of the local authority. There was a certain defect in the drafting of that section, which is being remedied by an amendment here, although the Board has proceeded as if the amendment were there already. So far as I am aware, there is no limit as to the nature of the consultation that may take place, and it is for the people in Dublin or elsewhere to have their views considered by the City Manager or whoever acts for the Corporation when the next representations are being made to the Electricity Supply Board in that connection. Of course, there are a number of matters in which differences of opinion might exist. Some people say it is better to have the poles erected behind the houses than to have them erected along the road in front of the houses. However, I do not like to give an expression of opinion on that matter but, as far as I know, the Electricity Supply Board will do their best to conform to the wishes of the local authorities in the areas concerned.
One suggestion I had to make was concerned with the lighting of the road from Coolock to Santry. I am sure that the Minister himself is familiar with the locality. The current was at Whitehall, and both the city and county were anxious to light the road to Santry. It would be a very natural thing, in my opinion, for the local authority to avail of the poles put up by the Electricity Supply Board in carrying the current.
I do not think the Electricity Supply Board would agree to their poles being used for any other purposes than the carrying of the transmission lines, in the interests of public safety.
Would they not be agreeable to having a lamp put on them?
I do not think so.
Well, perhaps they might not, but I have put a lamp on them.
That is a matter for the Electricity Supply Board. I do not refer to the Deputy's action in putting up a lamp, but to the question of a public board availing of Electricity Supply Board poles for lighting purposes.
Anyhow, the current was brought across the fields where it was of no use. The road wants lighting and not a single house can be served without big expense—more expense, at any rate than any individual owner or occupier of a house would feel warranted in giving; whereas if it were brought down the road, everybody on the road would have taken in the electric light and I suppose there would be from 30 to 50 subscribers on that road if the line were extended along the main road to Santry. The Electricity Supply Board has not complained of all the profits they are making, as we all know, but I suggest that it is very hard to make profits if they do not go on the line of business.
Section 2, as amended, agreed to.
Sections 3, 4 and 5 and Title agreed to.
Bill reported with amendments.
I would like to have the Report Stage next Tuesday.
The Minister can take it now, if he likes.
It is precisely because of the fact that certain representations have been made by the Dublin Corporation that I think it would be well to let the Bill stand over for a while, because Deputies will probably be receiving representations themselves on the matter.
Very well. I am sure that the Minister will agree to receive the deputations but he might not act on their recommendations any more than the Electricity Supply Board will act on them.
Report Stage ordered for Tuesday, 21st May, 1935.