Dáil Éireann díospóireacht -
Thursday, 9 Nov 1944

Vol. 95 No. 6

Committee on Finance. - Arterial Drainage Bill, 1944—Committee Stage (Resumed).

Debate resumed on amendment No. 94.

Mr. Hughes

The group of amendments with which we are now dealing refer to the power to take compulsorily trust funds that have been provided for the maintenance of embankments. We are opposed to that, on the grounds that those trust funds have been specially provided for maintenance purposes, and the intention behind this piece of legislation is that improvements, drainage works and embankment works generally were to be a national charge. The country got that impression and promise, and Dáil Eireann has agreed that that is the proper procedure, if we are to carry out national drainage effectively in the future. We think it is unfair to local authorities that substantial trust funds created for some counties should be swept into the Exchequer by the Minister for Finance. We are here empowering him to do that, and the maintenance charge will be thrown back on the ratepayers in that particular county, and it will be a substantial charge in some areas.

Where you have capital provision of that nature made over a period of years, and a regular yearly income accruing for maintenance purposes, it is bad financial policy, taking the long view, to destroy capital sums of that sort, and it is an injustice to the ratepayers in the counties concerned. The problem is concentrated in a few counties, where the maintenance charges are substantial. If we destroy the capital sums, we will let the Land Commission out of a very awkward situation. The Parliamentary Secretary should appreciate that it has been a problem in the Land Commission for a number of years. Not merely are we letting them out, but we are going to sweep away all the funds which were accumulating from one source or another over a period of years. When estates were acquired under the different Land Acts in the past, and where maintenance of certain works was the responsibility of the landlords in the past, that responsibility was carried on through trust funds, which were the responsibility of the Land Commission. Now, it is proposed under this Bill that the drainage authority will take over the responsibility for maintenance and pass on the financial responsibility to the local authority. That is a most unjust provision, so far as the general ratepayer in a particular county is concerned. If it were general throughout the whole country, it would be a different matter, as it may be argued that they would get substantial benefit.

It is true that certain counties will benefit substantially, but certain other counties — Waterford, Limerick, and Wexford, counties on the seaboard, where water from inland counties is being discharged, are really corridors from counties situated further inland, which get rid of surplus water by discharging it through those counties near the sea, where the problem arises. I represent some inland counties and it is not my problem at all, but I would point out to the Parliamentary Secretary, firstly, that it is going to put a substantial charge on the few particular counties concerned. If the present maintenance capital sums were preserved for maintenance purposes, it would be fairer to the ratepayers situated in those counties. Secondly, it is bad financial policy to rake in substantial capital sums that are very useful and which have been provided very conveniently, by the vision and foresight of people who went before us, to ensure that an annual income would accrue for work of this sort. I would like also that the Parliamentary Secretary should inform the House as to the aggregate capital sum that is involved, so far as the Land Commission is concerned, and the yearly income that accrues from the capital sums.

Mr. Roddy

In very many cases, the money in these trust funds has been retained out of the purchase price of estates, so it could be argued that it really belongs to the original owners of those estates. In any event, this money was set aside for the maintenance of these embankments. If my recollection serves me aright, the income from those funds was not nearly adequate to maintain the majority of those embankments in any reasonable state of efficiency. It is now proposed to hand that money over to the Treasury and deflect it from the purpose for which it was originally intended.

I cannot understand this discrimination in respect of embankments. In the preceding sections of this Bill, it is provided that the funds belonging to trustees and drainage boards are to be handed over to the county councils, to enable them to carry on the maintenance work; but, in this case of embankments, a different procedure altogether is to be followed. It is proposed that the money that was set aside specifically for the maintenance of these embankments is to be handed over to the Treasury. The Parliamentary Secretary is to collect whatever the expenses of carrying out the maintenance work will be from the county councils. Why has the Parliamentary Secretary chosen to adopt this procedure in regard to embankments and quite a different procedure in regard to drainage boards and drainage trustees? Morally, in my opinion at all events, this money should be handed over to the county councils, and should not be diverted from the purpose for which it was originally intended. The money, as I have said, is really the property of the original owners of the estates. I hold that the Parliamentary Secretary is acting wrongly and setting a bad precedent by making provision for the handing over of this trust money to the Exchequer.

Mr. McMenamin

This is one of the most extraordinary provisions that we find in this Bill. Deputy Roddy has referred to the moral property in this money. He could have gone further and said that it is the legal property of the owners of the estates. This House will be committing a breach of trust by diverting this money from the purpose for which it was intended. It was specifically vested in trust for maintenance work. If this section is passed in its present form will not this House be acting ultra vires? I hope that some county council will have the courage to test the matter, assuming that the Bill goes through in its present form. Undoubtedly, this money belongs to the original owner. It was his property. He left it in trust for the specific purpose of maintaining the embankments that were erected to drain the estate of which he was the owner. Neither this House nor anybody else has the right to interfere with that trust. This money was deducted from the purchase money at the time of the sale of the estate for the maintenance of these works in order to relieve local ratepayers of the burden which that maintenance work would put on them.

Last night the Parliamentary Secretary told us that the Government were taking all responsibility for the construction of these works. Of course a Government can do whatever it likes. It can take over whatever responsibility it likes, but there is one thing it cannot do, and that is interfere with trusts. That is wrong in law. The Government has neither a legal nor a moral right to this money. It belonged to the original owners, and was set aside for the purpose of maintenance. The creation of these trusts was a just and natural one. The Land Commission have retained huge sums of money from landlords when buying out their estates. Is that money going to be paid back to the landlords? During the time of the land agitation it used to be said that to shoot a landlord was a popular thing, but, of course, murder is always murder. We are putting up £7,000,000 in connection with this Bill, but while we are doing that we should not rob anybody. The amount of money held by the Land Commission for the purpose of maintaining these embankments was deducted from the price paid to the landlords for their land. I must say that the proposal in the Bill is a startling one. My opinion is that to enact anything of this kind would be ultra vires, and a breach of trust even though done by this House. This House has no prerogative to do wrong any more than a private individual has. I know that in recent years it has been quite a development to do these things. I would ask the Parliamentary Secretary to reconsider the matter. If this House has the right to commit a breach of trust it certainly has not the right to confiscate money that belongs to other people — money which was specifically set aside for the maintenance of these embankments, and in order to relieve the local ratepayers.

Mr. Heskin

I also hold in connection with the money held by these trustee bodies that at the time of the passing of the Land Acts the money was set aside by the landlord for the maintenance of embankments. Deputy McMenamin says it should be handed back to the landlord. I hold that if anybody should get the money held by these trustee bodies it is the county councils since they will have the responsibility for this maintenance work. The money should be transferred to their credit. Recently, I raised a question about a sum of £1,700 or £1,800 which was held by a trustee body on the estate of the Duke of Devonshire. I have not yet been told by the Parliamentary Secretary whether the local county council will be responsible for the maintenance of embankments hitherto maintained by the Land Commission. Will they come automatically within the scope of this Bill?

Mr. Smith

No.

Mr. Heskin

In my opinion the money held by these trustee bodies should be handed over to the county councils who will have to bear the cost of maintenance.

Mr. Bennett

I desire to support the series of amendments dealing with these funds which were set aside for a specific purpose. The Government did not originally provide them. Therefore, I hold that they should not be diverted from the purpose for which they were originally created, namely, the maintenance of embankments. I think eventually it ought to be used for that purpose. The Parliamentary Secretary argued yesterday that the State will take over the function of maintaining particular embankments in future, at a large cost, but as far as I can see in the Bill the county councils will eventually have to provide for the maintenance of the rivers and the embankments as well. It will eventually fall on the local rates, and any provision that was made for the maintenance of these embankments should go to the bodies that will be responsible for them. I am not a lawyer and I do not know what the legal right would be, but I think that is the moral right.

It may be that in some cases where trust funds had been provided for embankments, as a result of the operation of this Bill expenditure of such funds will no longer be required for the particular embankments. Take, for instance, a tidal river where it has been very essential that embankments should be maintained and where, in years to come, as a result of the drainage of a particular river, maintenance of the embankments is no longer essential. I can envisage certain rivers where that would happen as a result of a big drainage scheme. It might happen, however, that as a result of the drainage of that particular river, an increased burden of maintenance would be incurred in connection with a lower river. That would happen in particular areas, such as Wexford, as a result of the drainage of the Upper Barrow. It might happen in the Lee area or as a result of the drainage of the Shannon or the Blackwater. A tremendous flow of water might be let down on to the lower reaches as a result of the drainage of certain levels. The cost of maintaining embankments on the lower reaches would be increased.

I see no reason why the amendments should not be accepted by the Parliamentary Secretary or why there should be this mean attitude of encroaching on these small sums. I do not know how much they amount to, but the smaller they are, the less reason there is to encroach on them. The Parliamentary Secretary suggested that we made a fuss about very small sums. The smaller they are the less reason there is for encroaching on them. The smaller they are the less use they would be to the Exchequer. The Parliamentary Secretary also referred yesterday to the fact that the State was providing drainage for the country. We are all grateful for it. Every Deputy appreciates the attempt that is being made to drain the country properly, once and for all, and everybody here is desirous of helping the Parliamentary Secretary in that laudable work. The Government are providing these millions of money and probably, eventually, will have to provide more millions. It will be money well spent. It will be expenditure that will redound to the credit of the country and pay one hundred fold in improving the country generally. It will be money that probably will save the State in respect of certain relief schemes because no work will provide more work per unit of money spent than drainage. It is idle to cavil about such small sums as are referred to in the amendments.

Amendment No. 100 deals with the setting up of an embankments maintenance fund. There is no reason why such a fund should not be set up so that it would help in extraordinary cases to meet difficulty. Deputy Broderick referred yesterday to the possibility of serious happenings in Youghal owing to the condition of embankments there, and he could see no way, and the Parliamentary Secretary did not see any way, of providing for these contingencies. Deputy Allen referred to the case of New Ross where the drainage of the upper reaches of the Barrow had created such a situation that the local bodies could not see their way to cope with it. The amendments suggest a way — the setting up of a fund that might be used to meet cases like this. I do not think that it needs further elaboration. I think the amendments are reasonable. I think it is a very mean action on the part of the Government to encroach on these small funds. They will not count in meeting the huge cost of this drainage scheme but they would make a great difference in providing for contingencies that none of us can foresee.

Mr. Broderick

With the main principle of the Bill everybody agrees. The Parliamentary Secretary appears to be forgetting what he said last night, namely, that his desire was to safeguard the ratepayers as far as possible. As far as I can see, the confiscation of the trustee funds is not a matter of importance but it is the principle underlying the thing that matters — the principle that all the liabilities are to be transferred to the ratepayers. I prefer to leave the phrase "local authority" out of it altogether. I think the words "taxpayer" and "ratepayer" convey more to the public. The Treasury means the taxpayer. The local authority means the ratepayer. In this case the liabilities are to be transferred to the ratepayer and the assets are going to the assistance of the taxpayer. These sums are of little account when one considers the huge sum of £7,000,000. These moneys were provided for a certain definite course, namely, to keep embankments in repair. That liability is being transferred to the ratepayer. Are not they the natural inheritors of any trust funds that exist? They are now by law being made responsible for the work that the trustee funds were created for. Surely the trustee funds should go to the relief of the ratepayers.

As I pointed out yesterday, the County Council of Cork advanced a sum to the Awbeg drainage scheme, which is repayable in 35 years. Now the occupiers are being relieved of that at the expense of the County Cork ratepayers. Under this Act of Parliament, they are completely relieved of that liability but any trust funds that are there for the purpose of maintaining other embankments are being taken over by the State. I do not think that is fair. I think the principle is so wrong, the concession so small, that the Parliamentary Secretary might very easily give way on this particular point.

Mr. Smith

I was hoping that, as a result of what I said last night, we would have a clearer understanding of what is involved here, but I find now that either I failed to explain the position or Deputies failed to grasp the explanation. We are not automatically interfering with these trust funds about which all this fuss is being created. I want Deputies to ask themselves the number of these embankments which are in existence. They will find them in the report of the Drainage Commission, and, according to that document, the number is 381. There are trust funds in respect of some of these; there are some in respect of which there are no funds whatever; and there are others that for maintenance purposes are the responsibility of the people whose land they protect. We do not propose to confiscate these trust funds on the passage of this Bill into law or on the fixation of the appointed day.

Mr. Hughes

Or the transfer order when it operates?

Mr. Smith

Or the transfer order when it operates.

Mr. Hughes

What about Section 35?

Mr. Smith

What we propose to do is, if and when we come to a particular embankment which we propose to take over and reconstruct, only then do we propose to take into the Exchequer whatever funds are in existence. Surely if those funds were adequate, we would not have to reconstruct them at the State expense. Deputies speak of the taxpayer's expense, and I am not trying to deny that. I want to give the taxpayer all the credit due to him and I want to make him fully conscious at all times of the fact that it is he, and nobody such as the Treasury or the Ministry of Finance, who has to meet it. We are merely providing ourselves here with power, when we reach a point at which we are ready to take over a particular embankment, to take it over, because we feel that, whether there is a trust fund in respect of it or not, it has been neglected, that it is in a bad condition and that it requires repair and is capable of being repaired and put into a proper condition.

Mr. Heskin

That is my point. Section 4 empowers the commissioners, when they are of opinion that the execution of arterial drainage works is expedient in any catchment area for preventing or substantially reducing the periodical flooding of lands in that area, to prepare a scheme. I am speaking in relation to an area where the responsibility rests on somebody— whether the land owner, the Land Commission, a trustee body or somebody else. In that area, where there are up to 60 miles of embankments, flooding occurs, and if the commissioners are satisfied that there is flooding, even though the responsibility rests with the Land Commission or with a trustee body, they are empowered to go into that area, whether the county council likes it or not, and carry out a scheme. That is what the section says.

Mr. Smith

Why should it not?

Mr. Heskin

What about the trustee bodies which are in existence?

Mr. Smith

If the trustee funds are not sufficient to do the job, we must do it.

Mr. Heskin

And what about the Land Commission, where it is their responsibility and where they have neglected their duty and allowed embankments to fall into a state of disrepair? Why should the county council be asked to shoulder such a responsibility, particularly in County Waterford, where we have up to 60 miles of embankments?

An Leas-Cheann Comhairle

Might I point out to the Deputy that the Parliamentary Secretary is in possession?

Mr. Smith

I do not mind Deputies having a shot at me. I want to give them every chance of asking questions and of understanding this matter. If I thought the opposition were reasonable, I would try to be sympathetic. When we reach an embankment in respect of which there are trust funds in existence and decide to reconstruct it, is the fact that we have to undertake that reconstruction not proof that the trust fund was not sufficient to keep that embankment in a condition in which, from the national point of view and in the interests of the landholders concerned, it should have been kept?

Mr. Hughes

The Parliamentary Secretary must remember that it has to be maintained after the reconstruction.

Mr. Smith

Never mind that; everything has to be maintained.

Mr. Hughes

That is what we are worried about.

Mr. Smith

I refer the Deputy to Deputy Broderick who wants us to emphasise the part being played by the taxpayer.

Mr. Hughes

No, by the ratepayer.

Mr. Smith

And the ratepayer. What Deputies are arguing now, however, is that not only should this taxpayer who must on all occasions be named, according to Deputy Broderick, take on himself responsibility for the constructional charge but he must, according to Deputy Hughes, shoulder also the burden of maintenance.

Mr. Hughes

I never suggested any such thing.

Mr. Smith

Is it not the equivalent of that?

An Leas-Cheann Comhairle

I do not think a Committee Stage should be carried on on the basis of all Deputies speaking together.

Mr. Broderick

The Parliamentary Secretary will admit that there is a transition period——

Mr. Smith

There is no transition period in these cases.

Mr. Broderick

When the time comes for reconstruction, my point is that while the council is held responsible for maintenance, it inherits the liability of the trustee.

Mr. Smith

The Deputy has a different problem altogether. The problem about which he has been pressing us both here and outside the House is an entirely different problem. So far as I can see, it is the only one in which a local authority has some justifiable grounds for fear, but so far as the 381 embankments are concerned——

Mr. Hughes

Is it not true to say that Deputy Broderick's problem will be subject to this legislation?

Mr. Smith

It is not the problem about which the Deputy is talking at all, or the problem which any of the Deputies have put forward.

Mr. Heskin

The Parliamentary Secretary says that it is in the public interest that embankments should be repaired in a satisfactory manner. The provision is that the commissioners shall maintain such drainage works or existing drainage works, as the case may be, in proper repair and effective condition, but in the case of any such existing drainage works it shall not be obligatory on them to maintain such works in better condition or state of repair than they were in on the date of the maintenance transfer order. I hold that if you take over the embankments in the condition they are in, the county council is still shouldering the responsibility.

Mr. Smith

The Deputy is talking about drainage districts and not about embankments.

Mr. Heskin

I am talking about embankments.

Mr. Smith

I have no objection, as I have said, to these interruptions, but they have the effect of breaking my line of thought, and they are not fair to me, in the sense that when I get up to speak I have a certain line of thought to follow and these interruptions break it. I do not want to deprive Deputies of the right to interrogate me, but their interruptions do knock me about a little. I only want to make clear what I thought was in doubt and what I thought should not be in doubt; that is, that we are not, on the passage of this Bill, proposing to interfere with these funds. We do not propose to interfere with the funds, to the extent that there were funds in existence for the maintenance of these embankments; nor do we propose to interfere with the embankments in respect of which there are no funds at all. We are merely providing here, that, as we reach an embankment and decide that it is one that can be reconstructed and afterwards be maintained, we will proceed to take over that embankment and reconstruct it at State expense and that whatever sum of money is there in the shape of trust funds will go to the Exchequer. As I say, I can see no injustice in that, inasmuch as the reconstruction cost of the embankment will in all cases be greater than the amount of the trust funds; because, if that was not the case, then the embankment would not need any reconstruction. I think there can hardly be any doubt as to whether the State is trying to commit some mean, unpardonable sort of act in so far as this is concerned.

Mr. McMenamin

The money was to remain in perpetuity for maintenance.

Mr. Smith

I do not mind what way it was to remain.

Mr. McMenamin

Of course you do not.

Mr. Smith

I am only talking about what is fair between the important individual, the taxpayer, and the important individual whose lands are to be protected at the taxpayer's expense. I am only an ordinary man and I do not know anything about legal matters, but I have as good a conception as most people as to what is fair as between man and man and class and class——

Mr. McMenamin

The money was to remain in perpetuity for maintenance.

Mr. Smith

The ex-Leas Cheann Comhairle should understand that when a Deputy is speaking he is entitled to speak without interruption. I am only making it clear that what we are doing here is entirely defensible and fair, and that whatever trust funds are in existence are only a very small matter in relation to the total cost of the reconstruction of these works, when we come to the point that we will be able to undertake that work. I think that if there was a clearer understanding of what is aimed at there would not be this opposition to the course we are pursuing which has been displayed in the course of the discussion.

Mr. Hughes

I should like to ask the Parliamentary Secretary this question. Where there are no trust funds in existence and where an embankment is not the responsibility of any local authority, at some stage or other it is the intention of the commissioners to take over control of the embankment and reconstruct it and maintain it. You eventually mean to deal with all the embankments.

Mr. Smith

Practically all.

Mr. Hughes

We agree with that. In the case where there are no trust funds for maintenance, the State is prepared to take over and reconstruct the embankment, maintain it afterwards, and present their bill to the local authority for maintenance. Where there are no trust funds in existence, we are quite prepared, under the proposals here, to reconstruct at State expense. But, where trust funds are available, we are going to confiscate them. That is where the injustice lies. To my mind, you are applying one measure of justice in one case and another in another.

Mr. Smith

It is similar to the point you raised here with regard to county councils who undertook schemes under the 1925 Act and entered into a financial obligation in relation to these works, that they will have to continue to pay, while counties that refused to take advantage of the 1925 Act will get off. The cases are similar. As I say, we must approach this with an eye to the taxpayers' rights and interests. If you ask me to undertake a job for you that would cost £20 and there is only a sum of £5 to meet it, I do not think it is reasonable that you should ask me to do the job without at least having the assistance of whatever fund is there, however small it may be.

Mr. McMenamin

The point is that the fund there is in perpetuity for maintenance, and you are taking it for reconstruction.

Mr. Bennett

The Parliamentary Secretary argued in reply to what we said that the State will proceed to reconstruct the embankments. None of us mentioned a word about reconstruction — I did not anyhow. I did not even refer to the legal aspect, because, like the Parliamentary Secretary, I have not a legal mind. What I am trying to discuss as clearly as I can is the question of maintenance. I never mentioned reconstruction. The Parliamentary Secretary jumped on me and others because he said we did not understand what reconstruction meant. We know perfectly well what it means. In fact, I made reference to the efficiency of the present embankments when I spoke before. I said that, in the event of these rivers being taken over and drained and cleaned, some of the existing embankments need not be even as strong as they are. I can take the Minister to a river that has perfect embankments at present which do not want any reconstruction. They will not want to be maintained even at the present cost. Everybody knows that when a sluggish river flows into a tidal river it needs very strong embankments to hold the strength of water if the river is not properly cleaned and drained. When the tidal river and the river flowing into it are attended to, the embankments do not require the same attention, if they are in good repair at present. The cost of maintenance in future will not be as great as if the river were never attended to. In some cases, landlords built very good embankments, and a sum is provided for their maintenance. I know some that will last for a very long time. The purpose of Deputy Hughes's amendment is to save this money for the purpose for which it was originally intended. There may be a legal way of getting out of it. It may be possible, by a quibble of the law, to evade the original intention in the setting up of these funds. The Parliamentary Secretary may know nothing about the law, but some of those concerned with the drafting of this Bill know something about it, because they took a way of changing the ultimate destination of the funds. I know nothing about law, but I know that, if things are left as they are and this money is devoted to the purpose for which it was originally provided, everybody will be better served.

Mr. Hughes

The point that Deputy Bennett raised has given me a new idea. Suppose you have a situation where you were taking over at some date an embankment in a good state of repair. This legislation envisages a situation in which the commissioners will take over all embankments. Suppose that at a future date they take over the embankments that the Deputy described, which were built by landlords, which are in a perfect state of repair, and merely require a certain amount of maintenance, and there is a fund provided for that maintenance. The commissioners in that case take over that bank, confiscate the funds and do the maintenance work. There is no reconstruction now. They take over responsibility for maintenance and do it and present the bill to the local authority. Is that justice?

Mr. Smith

In a national scheme you cannot pick out a few hundred perches of a sound embankment; you have to look at 381 embankments and ask yourselves what condition are they in, and what fund is there to maintain them. You ask yourselves has the fund been adequate to do the job. It may be that a couple of hundred perches of a bank are perfectly sound and the fund provided may have been intended only to be spent on them. But this is not a small matter; this is a bigger matter. You have this number of embankments in the whole country, and a certain number of them, as we come to them, will be included in the comprehensive drainage district. A certain number of them will have to be approached as a separate matter, as embankments pure and simple.

What I want the House to realise is that, to the extent that there are funds there, we are not confiscating them until we proceed to reconstruct and recondition, and in undertaking that work I can assure the House the taxpayer is entering into a very substantial liability indeed as compared with the trivial amount available in the way of a trust fund.

Deputy McMenamin talked about these funds in perpetuity. There is no such thing. In many cases where these trust funds are in existence, the capital has been spent in an effort to keep the works in proper condition, and he who professes to give the House the benefit of his legal mind apparently does not seem to understand that what he is saying is entirely inaccurate.

Mr. Hughes

The Parliamentary Secretary ought to remember that it may look a very small matter to him, looking down from the office that is going to spend £7,000,000; but from the point of view of people in a small way down the country it might appear to be a very big matter.

Mr. Smith

The people in the country are getting the best of the transaction. They are going to benefit.

Mr. Hughes

What is the aggregate sum affected?

Mr. Smith

There is about £70,000 odd in the fund.

Mr. Hughes

That is the capital sum?

Mr. Smith

Yes.

Mr. Hughes

What is the interest accruing on that?

Mr. Smith

The interest has brought the sum up to about £90,000.

Mr. Hughes

What is the yearly income from it?

Mr. Smith

About £3,000.

An Leas-Cheann Comhairle

Is the amendment being withdrawn?

Mr. Hughes

Oh, no; there is a big principle involved.

Amendment put.

The Committee divided: Tá, 30; Níl, 58.

Tá

• Anthony, Richard S.
• Beirne, John.
• Bennett, George C.
• Broderick, William J.
• Cafferky, Dominick.
• Coburn, James.
• Cogan, Patrick.
• Coogan, Eamonn.
• Corish, Richard.
• Cosgrave, Liam.
• Dockrell, Henry M.
• Dockrell, Maurice E.
• Doyle, Peadar S.
• Eggan, Charles.
• Flanagan, Oliver J.
• Giles, Patrick.
• Heskin, Denis.
• Hughes, James.
• Keating, John.
• Keyes, Michael.
• Larkin, James.
• McFadden, Michael Og.
• McMenamin, Daniel.
• Mulcahy, Richard.
• O'Donnell, William F.
• O'Leary, John.
• O'Sullivan, Martin.
• Reidy, James.
• Reynolds, Mary.
• Roddy, Martin.

Níl

• Aiken, Frank.
• Allen, Denis.
• Bartley, Gerald.
• Beegan, Patrick.
• Blaney, Neal.
• Boland, Gerald.
• Bourke, Dan.
• Brady, Brian.
• Brady, Seán.
• Breathnach, Cormac.
• Brennan, Martin.
• Brennan, Thomas.
• Breslin, Cormac.
• Briscoe, Robert.
• Buckley, Seán.
• Burke, Patrick (Co. Dublin).
• Butler, Bernard.
• Childers, Erskine H.
• Colbert, Michael.
• Colley, Harry.
• Corry, Martin J.
• Derrig, Thomas.
• De Valera, Eamon.
• Fogarty, Andrew.
• Fogarty, Patrick J.
• Furlong, Walter.
• Harris, Thomas.
• Hilliard, Michael.
• Humphreys, Francis.
• Kennedy, Michael J.
• Kilroy, James.
• Kissane, Eamon.
• Little, Patrick J.
• Loughman, Frank.
• Lydon, Michael F.
• Lynch, James B.
• McCann, John.
• McCarthy, Seán.
• MacEntee, Seán.
• Morrissey, Michael.
• Moylan, Seán.
• O Briain, Donnchadh.
• O Ceallaigh, Seán T.
• O'Connor, John S.
• O'Grady, Seán.
• O'Loghlen, Peter J.
• O'Reilly, Matthew.
• O'Rourke, Daniel.
• Rice, Bridget M.
• Ryan, James.
• Ryan, Mary B.
• Ryan, Robert.
• Sheridan, Michael.
• Skinner, Leo B.
• Smith, Patrick.
• Traynor, Oscar.
• Walsh, Laurence.
• Ward, Conn.

Tellers:— Tá: Deputies Doyle and Bennett; Níl: Deputies Kissane and Kennedy.

Amendment declared lost.

Section 33, agreed to.

SECTION 34.

Amendment No. 95 not moved.

An Ceann Comhairle

Amendments Nos. 96 and 97 have been covered by amendments Nos. 44 and 45.

Amendments Nos. 96 and 97 not moved.

Mr. Smith

I move amendment No. 98:—

To add at the end of sub-section (4) the words "and conclusive".

This is a drafting amendment.

Amendment agreed to.

Amendment No. 99 not moved.

Question proposed: "That Section 34, as amended, stand part of the Bill."

Mr. Hughes

I am inclined to oppose sub-section (5). If a man loses portion of his lands on account of flooding or through some other cause, his income is reduced because of the loss incurred. Is it not a bit of hardship to apportion it and make him redeem the annuity?

Mr. Smith

It was always done.

Mr. Hughes

That is no reason why we should do it now. Why should we slavishly follow what was done in the past, when injustice was done?

Mr. Smith

It was not injustice.

Mr. Hughes

I am not concerned with what was done in the past. I want a reason why we should do it now.

Mr. Smith

I will give the reason. The man has contracted to pay this money, this advance, by way of annuity. He is getting compensation for a portion of his land and is it not only right that he would recoup to those who advanced the money the portion advanced, in the ordinary way?

Mr. Hughes

He has to redeem the whole lot.

Mr. Smith

He has to redeem the portion of the advance on the land in respect of which he is getting compensation. Surely, he should not be allowed to pocket that, where he would not be allowed to pocket it in any other case where land was being taken from him?

Mr. Hughes

Sub-section (5) provides:

"Compensation payable under this section in respect of the flooding of land (in this sub-section referred to as flooded land) which is subject, either alone or in conjunction with other land, to a land purchase annuity or other annual payment (not being merely rent under a contract of tenancy) payable to the Irish Land Commission or to the commissioners shall be applied by the commissioners in or towards the redemption of so much (whether the whole or a part) of such annuity or annual payment as is charged on or apportioned to the flooded land exclusively, and only the surplus (if any) of such compensation remaining after such redemption shall be paid to the owner or occupier of the flooded land."

Does that mean that he has to redeem the whole amount?

Mr. Smith

It does not.

Mr. Hughes

If that is so I am satisfied.

Section 34, as amended, agreed to.

SECTION 35.

Amendment No. 100 not moved.

Mr. Hughes

I move amendment No. 101:—

At the end of the section to add a new sub-section as follows:—

"All trustees affected by the preceding sub-section shall be entitled to give evidence relating to such trust fund before the Judicial Commissioner."

The object of the amendment is to ensure that when the fund is being apportioned the trustees, whoever they may be, will be entitled to give evidence before the judicial commissioner.

Mr. Smith

I think this is already covered since we are providing that notice will be served.

Mr. Hughes

It does not say that they will be entitled to give evidence.

Mr. Smith

That would follow. There is no objection to the amendment, but we think that it is already covered. If it is not clear we will make it clear.

Amendment, by leave, withdrawn.

Question proposed: "That Section 35 stand part of the Bill."

Mr. Hughes

On this section, I would like the Parliamentary Secretary to clear úp a few points. It is not clear whether every type of trust fund is to be acquired regardless of whether there is any responsibility on trustees to maintain work or not. There are funds in respect of which there is no responsibility, but the interest on the funds can be applied. There is no legal obligation on the trustees to carry out any work. Is it the intention to confiscate all funds regardless of whether there is any obligation on the trustees or not?

Mr. Smith

I do not like the Deputy's style of putting the question.

Mr. Hughes

I love the word "confiscation".

Mr. Smith

It is misrepresentation. That is why I do not like it.

Mr. Hughes

I think the word is actually used in some parts of the Bill.

Mr. Smith

As I understand it, we are taking power to take over any embankment if and when we decide to do so. It does not matter whether there is any trust fund at all or not.

Mr. Hughes

My point is, are you going to clear all trust funds regardless of whether they are bound to maintain or not?

Mr. Smith

Of course.

Mr. Hughes

I have a particular trust fund in mind under which there is no obligation to maintain, but the interest can be applied for maintenance.

Mr. Smith

I cannot see a case in which we will take over an embankment and reconstruct it and leave a fund there of whatever kind or nature it may be.

Mr. Hughes

I am asking have you that covered?

Mr. Smith

If you mean have we sufficient power to deal with it, we have.

Question put and agreed to.

SECTION 36.

Mr. Hughes

I do not see that any useful purpose would be served by moving amendment No. 102. We have discussed the question already.

An Ceann Comhairle

That is not for the Chair to say.

Mr. Hughes

The Parliamentary Secretary does not say that the benefit to the Exchequer is emphasised in every paragraph of the Bill.

Mr. Smith

If I had heard Deputy Broderick earlier I would have asked the draftsman to say for the benefit of the taxpayer rather than the Exchequer.

Amendment No. 102 not moved.

Section 36 agreed to.

SECTION 37.

Amendments Nos. 103 and 104 not moved.

Mr. Heskin

I move amendment No. 105:—

In sub-section (1), before paragraph (b), to insert a new paragraph as follows:—

"The Irish Land Commission shall be responsible for the cost of maintaining all embankments which may be under its control at the date of the passing of this Act."

I would like to know from the Parliamentary Secretary if, in a case where responsibility rests with the Land Commission, they are being relieved of that responsibility?

Mr. Smith

I do not know what the Deputy's conception of the responsibility of the Land Commission is.

Mr. Heskin

Where the Land Commission have responsibility for maintaining embankments, are you taking over that responsibility under this Bill?

Mr. Smith

There are some people who would hold, even though there were no trust funds in existence, that the Land Commission were responsible for the maintenance of embankments. Is that the kind of case that you are trying to make? I will put this kind of case to you, although the Ceann Comhairle may remind me——

An Ceann Comhairle

The Chair is anxious to secure compliance with the Standing Order which says that Deputies — and Parliamentary Secretaries are Deputies — must address the Chair. Were Deputies to develop the habit of addressing each other in the second person discussion could more easily become acrimonious.

Mr. Smith

I am a mild-mannered man and not inclined to say anything nasty.

An Ceann Comhairle

I am sure the Parliamentary Secretary would not.

Mr. Smith

I ask the Deputy to take the case of 20 farmers in a district whose lands are vested in them and portion of which are protected by an embankment.

Mr. Hughes

What Deputy Heskin has in mind is this: when a transfer order operates, is the Parliamentary Secretary going to relieve completely the Land Commission of any obligations under a trust?

Mr. Smith

They have no responsibility.

Mr. Hughes

That is what Deputy Heskin wants to know.

Mr. Smith

There are hundreds of cases in which the Land Commission have no responsibility.

Mr. Hughes

But where they have responsibility under trust funds?

Mr. Smith

I have answered that already.

Mr. Hughes

The Deputy need not have any doubt about that.

Mr. Heskin

I was in doubt about it. In County Waterford there is a number of embankments in connection with which the Land Commission have failed to carry out their obligation to keep them in repair. I do not understand the position very clearly and I am merely trying to protect the interests of the ratepayers. I want to see that the embankments are in a proper state of repair when they are handed over to the county council. That is the point I want to make clear. I mentioned, yesterday, a case occurring in the Nier Valley, where, in 1933, the Land Commission built a sod embankment. The following is an extract from a letter I have received in connection with it:—

"In 1933 the Land Commission built a sod embankment on my side of the river and a good limestone embankment on the other side. In 1937/1938 my side began to go and I informed the Land Commission. They took no notice, and at that time very little would do. So, in 1940, the whole thing was swept away, which has rendered about 10 acres useless. I am continually writing to the Land Commission. I may get a reply that they are looking into the matter, but, so far, nothing has been done."

In cases like that, where the Land Commission have refused to carry out their obligations——

Mr. Smith

How does the Deputy know they had obligations?

Mr. Heskin

Why did they repair them in 1938 if they had no obligation?

Mr. Smith

They could do that without having obligations. They might do it under a minor employment scheme. It would not follow that they had obligations. They might spend money without having any obligation to do so.

Mr. Heskin

Even if it was not their responsibility in that case, there are other cases, in the Tar area and the Lismore area, where the Land Commission is responsible. The point is that in connection with the section in the Bill under which compensation would arise, if the embankments were in a bad state of repair and, as in the case I have mentioned, ten acres of land were rendered useless, that particular individual could look for compensation from the responsible authority, namely, the county council. All I ask in the amendment is that where the responsibility rested with the Land Commission, the Parliamentary Secretary, when he takes over under this Drainage Bill, will place the embankments in a solid state of repair before the county council will be asked to accept the responsibility.

Mr. Hughes

The county council has no responsibility for embankments.

Mr. Smith

This is what the Drainage Commission had to say on this matter of embankments:

"In all these cases, however, the tenant purchasers continue to look to the Land Commission for assistance. They persist in regarding the Land Commission as the legal successor of the former landlords, with all the obligations of the latter. They fail to realise that a tenant purchaser whose holding is vested in him has become an owner in feesimple and has acquired the interest of the former landlord with all its obligations as well as its rights."

The tenant, although his lands are now vested in him and although, with that vesting, has gone the responsibility to him that was formerly discharged by the Land Commission, still regards the Land Commission as the legal successor of the landlord and he will look to the Land Commission as an institution that should carry out this work for him, while, in fact, the Land Commission has no legal responsibility whatever. That is why I put the question to the Deputy. I was not trying, as Deputy Hughes suggested, to evade a straight question. I was trying merely to get the trend of thought of the Deputy. There can be nothing more clear than this. It is quite simple and quite easy to follow. I told the Deputy the number of embankments that were in existence. I told him that there were funds in existence in respect of some of them. There are some embankments in respect of which there is no fund and I told him that these embankments would remain as they are until such time as we decide to take them over as we reach them. Whether they are embankments in connection with which funds exist or not, if the drainage authority felt that it was in the public interest to take over any portion of these embankments, then we would take them over, reconstruct them and maintain them afterwards — of course, at the expense of the local authority. That is simple, I think, and easily followed.

Mr. Heskin

Provided, of course, that they would be well constructed before the maintenance charge would fall on the county council.

Mr. Smith

That is an engineering matter. We would try to do our best in that connection.

Mr. Heskin

That is the very point I want to bring out.

Mr. Smith

I do not suppose you can get any assurance other than this, that our obligation will be to reconstruct them to the best of our knowledge and ability, and, without regard to expense, to ensure that they will be in a proper condition.

Mr. Heskin

If you reconstruct the banks and put them in a proper state of repair before the local council would be charged with their maintenance, I am satisfied.

Mr. Smith

We are undoubtedly accepting that obligation.

Mr. Hughes

There is just one matter I wish to raise.

An Ceann Comhairle

Does it arise on amendment No. 106?

Mr. Hughes

No; it is on Section 34 I wish to ask one question.

An Ceann Comhairle

One.

Mr. Hughes

It is about the abandonment order. Why should it have been necessary to abandon an embankment or even to make provision for the event of any damage arising out of the abandonment of an embankment? There is no liability.

Mr. Smith

We might find it impossible to maintain an embankment.

Mr. Hughes

I see, and you are going to allow the shocking condition that might exist to continue.

Mr. Smith

We might have to. If it should transpire that we could not maintain it, we would have no alternative. It would not arise, perhaps, in one case in a million.

Mr. Hughes

This is only a necessary safeguard. It is not anticipated that you would operate it?

Mr. Smith

It might never arise at all.

Mr. Hughes

You have not any particular case in mind?

Mr. Smith

No.

Mr. Heskin

I move amendment No. 106:—

In sub-section (1), before paragraph (b), to insert a new paragraph as follows:—

The owners of lands benefited by a drainage scheme shall pay an apportioned amount of the cost of the maintenance of such scheme.

I understood that the increase in the valuations would place a further liability upon the owners but I understand now that the valuation will not be increased on the individual but on the county generally. Is that so?

Mr. Smith

It will not be increased on the county generally either.

Mr. Heskin

How will it be operated?

Mr. Smith

It will be spread over the existing valuation.

Mr. Hughes

Yes, but there may be an increase in the incidence of the valuation.

Mr. Smith

We will estimate, of course, the improvement that will be effected on the lands that will be situated in the particular county.

Mr. Hughes

Would that be added to the total valuation?

Mr. Smith

I do not know whether it will be or not. I do not think so.

Mr. Hughes

I think it would be.

Mr. Smith

That is a matter for the valuation department.

Mr. Hughes

Anyway, it is very evident that there will be no such thing as an increase in the individual's valuation?

Mr. Smith

No.

Mr. Heskin

I hold that where land will benefit by a drainage scheme some charge should be put on the land so benefited. This is a very big scheme and if land is going to benefit by the scheme it should bear a part of the cost and the ordinary county ratepayer should not be asked to bear part of the burden. In a particular area where lands are drained, provided they are brought up to a good state for cultivation, or even for grazing, surely they are worth more money to the owner than before they were drained. If not, why drain them at all? I have in mind areas in which this scheme might be operated. It is good land, and I see no reason why the man on the mountainside should be asked to pay a penny, twopence, threepence or sixpence in the pound for the drainage of that land. I hold that land which will benefit should bear a share of the cost of maintenance, apart from the county-at-large rate.

Mr. Hughes

The old principle was that a man should pay portion of the improvement value—not the full value, because if he were charged the full value, it would be no benefit to him at all — and it is on that basis that Deputy Heskin is arguing. There is something to be said for it. Nevertheless, we think that, taking the broad view, the principle of making it a county-at-large charge is sound. It so happens that some people are in the rather unfortunate geographical position of living in wet, low-lying districts while others live along a trunk road. The latter gets all the advantages of a trunk road service and the man on the hillside has to pay for those services, although he gets very little advantage from them. We do not attempt to strike a special charge for the man with the advantages of trunk road service, and, in respect of all these social services, I think there is a lot to be said for spreading the charge generally. However, if we agree here that some portion of the charge should be paid and that the charge should be apportioned as between the riparian owners and the county-at-large — I do not know if this aspect has been examined, but it struck me as being rather useful —we might decide that where you increase a man's valuation because of the improved value resulting from drainage, he is indirectly contributing to the local authority because his rates will be slightly increased. What I mean is not to have a separate charge for drainage works, but to permit the increase in the valuation to operate which would help the local authority, to a small extent at any rate.

Mr. Heskin

Is it anticipated that where lands are drained there will be a revaluation?

Mr. Hughes

Not individually. There will not be an increase in individual valuations.

Mr. Heskin

There will be no increase in the valuations individually?

Mr. Smith

No.

Mr. Roddy

I must say that I agree with Deputy Heskin. I think the owners of benefited lands should be asked to shoulder some additional charge. I am not quite clear as to how this will operate. The final award will show the increased value of the benefited land. It may be confined to a townland or a number of townlands, but I take it that subsequently it will be a matter for the Valuation Office to step in and increase the valuation in proportion to the increased value of the land.

Mr. Smith

No.

Mr. Roddy

If the valuation is to be increased, the general valuation of the whole county is increased.

Mr. Smith

As I understand it, the apportionment will be between counties.

Mr. Roddy

We assume that the scheme is confined to one county.

Mr. Smith

In that case, the bulk improvement will be made known in the final award to the county concerned, but it will have no importance, except as a record of information showing the improvement effected in the lands drained. But where there is more than one county concerned, an apportionment as between counties will be made for the purpose of enabling an apportionment of the drainage maintenance charges afterwards, but it will have no further significance. It cannot be added on in the manner suggested by Deputy Heskin, or divided amongst the valuations, because that could not be done without new legislation. That being so, it has no purpose except the purpose I have described.

I can only say that I agree with the argument that there is nothing unsound in asking a man to pay for benefits which he receives, and the Drainage Commission held that he should be made responsible for the payment of 70 per cent. of the estimated improvement to his land. We departed from that, not because we disagreed with the principle or with the recommendation, and not because we felt there was anything wrong or unjust about it, but because we found from our experience that it was a source of delay and a source of trouble not only in the preparation of a scheme and the segregation of the estimated improvements amongst the different holdings affected, but of continued trouble in respect of these holdings afterwards. Taking it all in all, while we agree with the principle of asking a man to pay, we thought that, because of the smallness of the amount involved in many cases, and the delay which would be occasioned by the process, it was better to ask the State to bear the whole initial cost, and to ask the local ratepayer, who is the nearest approach to the individual, to meet the cost of maintenance. That is the line of reasoning which was applied to our deciding on this proposal.

Mr. Hughes

I asked the Parliamentary Secretary whether a particular aspect had been examined, that is, of permitting the increased valuation to operate so that it would yield a higher income to the local authority. It may not be possible in the case of legislation like this.

Mr. Smith

We cannot do that.

Mr. Hughes

Not in legislation like this, but was it considered at all — the increasing of a man's valuation pro rata to the improved value of his holding which would yield a higher local income?

An Ceann Comhairle

That is another day's work.

Mr. Hughes

I merely ask if it was examined.

Mr. Smith

It was.

Amendment, by leave, withdrawn.

Amendments Nos. 107 and 108 not moved.

Mr. Hughes

I move amendment No.109:—

In sub-section (1) (b) to delete all words after the words "drainage works" in line 22 to the end of the paragraph and substitute the following:—

"the judge before whom such proceedings are being heard may, after hearing the evidence of the plaintiff and defendants appoint a member of the panel of arbitrators who is a qualified engineer to make an inspection of the said existing drainage works and to furnish a report of his inspection to the court."

I think this a shocking paragraph. There was a similar paragraph in an earlier part of the Bill where it stated that the commissioner's certificate was final and binding so far as the maintenance by a local authority was concerned. That was not so bad. This paragraph states:

"(b) in any proceedings against the commissioners for damages or for relief in the nature of mandamus on account of the alleged inadequate maintenance by the commissioners of any such existing drainage works, a certificate sealed with the seal of the commissioners and stating that the commissioners have caused the said existing drainage works to be inspected and are satisfied that the said existing drainage works are, at the date of such certificate, in a condition and state of repair at least as good as on the date of the relevant maintenance transfer order shall be conclusive and irrebuttable evidence that the said existing drainage works are in a condition and state of repair at the date of such certificate at least as good as on the date of the said order."

Surely that is an extraordinary principle, that if there is litigation, one party to the legal proceedings can certify that their own work has been properly and efficiently carried out, and that cannot be questioned. A fundamental principle of justice in this country, so far as protecting the liberty and the freedom of the individual is concerned, is that, if the individual feels he has a grievance against a fellow-citizen or against the State, he can bring his case into court and get a strictly impartial decision. How can justice be administered if we legislate in this manner to protect an authority that, I hope, will be very active? It may be that the drainage authority requires exceptional powers to carry out national drainage work. I agree that it wants exceptional powers. But the moment you give an authority like this exceptional power in dealing with any individual, I suggest that you should ensure, if you are to legislate properly, that you give that individual all the essential safeguards so that the authority will not abuse the extraordinary powers you are giving to them. We are providing the essential powers which I admit are necessary to carry out drainage work. They can go in on land and take sods and everything necessary to build embankments. They can compulsorily acquire land for the purpose of carrying out a drainage scheme. All these powers are being conceded. Nobody has questioned the wisdom of doing that. But, once we provide these exceptional powers, surely it is only reasonable that we should provide the necessary safeguards on the other side, and see that the liberty and freedom of the individual are not infringed in any way, and that if he has a grievance he has the right to take that into court and get an independent decision.

The proposals put up to this House in that respect are shocking, if you approach them in a strictly impartial way. I think the Parliamentary Secretary should reconsider the whole matter. I do not think that we should leave ourselves open to being charged with contempt of court. We are very nearly doing it in more than one instance. If we expect that citizens will have respect for the law, surely we should set a good example ourselves by having respect for the law. You are accepting the fact that a matter can be made the subject of legal proceedings, but you throw in a provision of this sort, that there is to be a certificate from the people involved in the legal proceedings, that they are to be the judges of their own conduct, and that no one dare question their work. That is a preposterous suggestion to which we could not possibly agree. I think the Parliamentary Secretary should reconsider the matter, and at all events have respect for the individual's rights, the right to question a decision even of the State, take it into court and get an impartial decision on it within the laws made by this Parliament. You are infringing his rights and liberties if you do anything else.

Mr. Smith

I think the Deputy was amongst those who admitted our right to protect county councils to whom we are transferring districts on the appointed day. Most of the Deputies, I think, recognised the necessity for inserting a provision, as we did, in Section 23 for the protection of these bodies. If the House recognises the importance of the insertion of that protection for local authorities, I do not think that they can reasonably deny to the drainage authority a similar protection. I must confess that, when you look at this at first, it seems a bit high-handed that when you have a drainage authority charged with the maintenance of a district and somebody decides to take an action against that authority, it is the certificate of that authority which will be called upon to determine whether or not there is anything in the complaint. But what other way can you have it? I cannot see our having very many of these districts on our hands. The only occasion on which we are likely to have a district of this type on our hands for maintenance purposes will be when we take over an old district for reconstruction, and will not be ready to start on it for some time, and will have to maintain it in the interval; or where we will construct a drainage district, and because of our having to set up one maintenance organisation, we might take in some districts lying close by for maintenance purposes. But I cannot see the drainage authority handling very many of these, because we will naturally wait until they are being taken over for the purpose of reconstruction, and after reconstruction they will pass into our maintenance organisation for maintenance purposes. After that, the individual will have all the freedom that Deputy Hughes wants him to have in the way of taking whatever proceedings he may think fit.

This only refers to the old existing districts. It does not cover any wider ground than that. It only refers to those if and when we take over any of them for the purpose of reconstruction and may not be able to proceed with the reconstruction right off; or because we have in a catchment area carried out some new works in respect of which we would be responsible for maintenance, and, because of being responsible for maintenance, we would take in a number of those other old districts and say that we would maintain them as a unit with this organisation we have set up. It is scarcely likely that any difficulty of the kind that Deputy Hughes anticipates will arise; but, anyhow, if there is anything in the argument that he has advanced, we are the people who now are charged with the inspection of these districts for the purpose of putting on record their condition prior to the fixation of the appointed day. Who, then, will be in a position to give a certificate except ourselves? There will be no other authority that will have any record of the condition of the district.

Mr. Hughes

Do not get them mixed up on the appointed day and the day of the transfer order.

Mr. Smith

The only thing I am worried about is that they will not be mixed up in some other minds than mine.

Mr. Hughes

They are not mixed up in mine.

Mr. Smith

We will have to put on record the condition which exists in every one of these districts. They will automatically be transferred to the county council on the appointed day. If, in a year or two years, we decide to take one of them over for any of the reasons I have given, and if the situation visualised by Deputy Hughes were to arise, my point is that if even a private person wanted to get into court, and if the court wanted to get a certificate, as it would, with reference to the condition of the district on the appointed day, there would be no authority in a position to give that information to the court unless ourselves, and, that being so, and while it may seem to the Deputy somewhat extravagant, I do not think there is any reason for anxiety about it, because we will have committed ourselves to recording the condition in which it was, and that is the important thing. We are the only people having that record, the only people who will be able to say what the condition was then and is now.

Mr. Hughes

The Parliamentary Secretary is trying to draw an analogy between what occurs after the transfer order and what occurs on the appointed day. To get the whole thing properly focussed and clear in the Parliamentary Secretary's mind, let us follow the trend of events. I agree that you want to protect the local authority, because it is not envisaged in this legislation that the local authority should reconstruct; they merely should do the necessary maintenance until our people would finally step in and do any reconstruction necessary. It is only envisaged that the local authority should maintain at a standard not greater than the standard on the appointed day. For that reason it is necessary to have people like the commissioners stepping in and examining the degree of maintenance that is there, so that they will be able to certify that the local authority is doing its duty and is maintaining it at a standard equal to the standard prior to the transfer order.

The people who certify are certifying the work of another body. At a later stage the transfer order operates and it comes to the commissioners. In the event of litigation, not merely by an individual, but possibly by a local authority having some ground for questioning the commissioners after the transfer order operates and when it becomes the responsibility of the local authority, the certificate by the commissioners will be final and binding. The commissioners are to be the judges of their own work and no one dare question them.

Are we to agree to legislation of that sort? Are we to build up a fortification around the commissioners and put them in such an impregnable position, so far as their work is concerned? No one would dare to question the efficiency of their work, and the judge's hand would be tied. The evidence of a technician or an engineer on the matter, no matter how strong regarding inefficiency, would not be enough. The commissioners could not be assailed or questioned in any way because of the provisions we are asked to subscribe to in this Bill.

The Parliamentary Secretary has not convinced me, and I do not think he could possibly convince the House, as to the desirability or wisdom of putting such a provision in here. There is no analogy whatever in this instance. You are brought in as an impartial body in the one case to certify the work of the local authority in the carrying out of maintenance. Here it is a totally different matter. You are claiming the privilege of certifying your own work. That sort of provision cannot be defended and I could not possibly agree to it.

Mr. Cogan

The provision does not seem to be altogether clear to me. I understand from what the Parliamentary Secretary has said that the amount of work affected by clause (b) of Section 37 is not very great. If it is not very great I think the Parliamentary Secretary might consider the desirability of taking the risk of having a case decided against him in the court. What I also fail to understand is this: suppose the drainage work is undertaken by the commissioners and completed, the maintenance of such work will then be the function of the commissioners. Why is it a clause is not inserted to protect the commissioners, in reference to such work, a clause such as we have here in the case of work already existing? Why is a distinction drawn between existing work taken over and new work completed by the commissioners? If there is no need for the protection of the commissioners in the case of new work which they are liable to maintain, why should they need this special protection in the case of existing works taken over?

Mr. Smith

It is important that I should answer that right off. Surely the Deputy is aware that the districts that are being transferred on the appointed day are districts that have been neglected, in some cases for 30 years? Some of these districts are districts in which no work has been done in the memory of man, and surely it is unreasonable to suggest that we alone are not entitled to protection and that the county council, who are being asked to take them on the appointed day, are to have protection against people taking action against them for insufficient maintenance?

Mr. Hughes

You do not expect them to carry out improvement work, but you are expected to do so.

Mr. Smith

We are not expected to improve them until we reconstruct them. When we reconstruct them the normal law will apply to them. We will have a chance then of designing a proper scheme and carrying out proper works. We do not seek any special protection. If you give us a district on which no work has been done for 30 or 40 years and you say to the county council: "We are merely asking you to maintain this up to the standard in which you find it"——

Mr. Hughes

You start off the section by saying: "Where a certificate of completion has been issued." Your argument does not apply here.

Mr. Roddy

The Parliamentary Secretary himself applied the words "extravagant" and "high-handed" to this particular clause. I think a more appropriate word would be "outrageous". I do not believe there was such a clause in any legislation ever passed by this House or in any other legislation taken over from the British authorities.

Mr. Hughes

I think it is unconstitutional.

Mr. Roddy

The drainage authority concerns itself with all sorts of safeguards, but there is no safeguard for the individual or the unfortunate local authority affected by these drainage schemes. A clause of this kind is calculated to cause inefficiency amongst the officials of the commissioners themselves, as they know perfectly well that, no matter how indifferently or carelessly they may carry out the work, they are safeguarded against any action taken against them. They issue a sealed certificate, which will be irrefutable evidence that the work was done in the fashion specified, and no one has the right to question it. I wonder what would happen if someone should take action and what the comment of one of our present High Court judges would be in regard to this type of legislation, if someone presented a certificate of that kind. It is indeed an amazing clause.

The Parliamentary Secretary did say that this clause was only intended to apply to old existing drainage districts. From my opinion of the country, I would say it is because of the fact that it does apply to those old existing drainage districts that trouble is likely to arise and that certain people may be inclined to take proceedings against the commissioners on account of the negligent manner in which the work was being carried out. No matter what grievances these people may have, no matter what damage they may suffer, no matter how their livelihood may be affected, they are to have no rights whatever. The drainage officials are at liberty to carry out the scheme in any manner they wish, as indifferently as they wish and without any regard for the people. The officials know perfectly well they are secure under this particular clause and the commissioners also are secure against any claim these unfortunate people may be inclined to make. I would almost say that this clause is unconstitutional; at any rate, it is utterly unjust and I do not think such a clause was ever included in previous legislation.

Mr. Hughes

I want to be strictly fair to the Parliamentary Secretary. The section starts off by saying:

"Whenever a certificate of completion has been issued and also whenever a maintenance transfer order has been made, the following provisions shall apply...."

If the Parliamentary Secretary's contention is right that this paragraph (b) of sub-section (1) applies only in the case of existing drainage works that have been transferred before a certificate of completion has been issued and is intended to safeguard the commissioners from litigation pending the completion of the reconstruction works, I think that it is very badly drafted to cover that point. If he would read it again, he might not be so satisfied that that is properly covered, as the two things are coupled.

Mr. Smith

Read (b) of sub-section (1).

Mr. Hughes

That is the one I am talking about. In (a) he is really trying to cover the commissioners, "who shall maintain the said drainage works or existing drainage works in proper repair and effective condition but, in the case of any such existing drainage works...." What he means there is "prior to reconstruction." If the Parliamentary Secretary wants to get that in, it is very necessary to clarify it by saying "prior to reconstruction," as he starts off the section by coupling the two and operating it under both completion and transfer order. In any case, I feel that the paragraph is highly objectionable.

Mr. Smith

We are trying to agree that we are entitled to protection.

Mr. Hughes

Certainly.

Mr. Smith

Who could issue the certificate?

Mr. Hughes

In the case of a local authority, the commissioners certify it.

Mr. Smith

But who would have the record as to its present condition, in order to certify it?

Mr. Hughes

This sub-section (b) would only operate in the case of an existing drainage works prior to reconstruction. In the drafting, I think that is not made clear.

Mr. Smith

We could not dream of taking over these districts without that protection. One may call it unconstitutional or anything else, but we certainly will not expose ourselves by taking over districts of that type and making ourselves the cockshot that I referred to in the case of the county councils last night. If they are entitled to protection—and they are—so, too, are we.

Mr. Hughes

It is highly objectionable. It is not so bad if you want to protect the commissioners in the interregnum. The principle of a man certifying his own work is wrong. Is it not possible to get out of it in any other way?

Mr. Smith

There is no other way.

Mr. Hughes

Have you thought about it?

Mr. Smith

We have thought about it very much.

Mr. Roddy

Could the Land Commission do it?

Mr. Smith

They would not inspect these works for us now. We want to fix the appointed day fairly quickly, as we are already engaged on the inspection work that will be necessary in order to fix the appointed day.

Mr. Roddy

The commissioners are engaged on these works at present?

Mr. Smith

Yes.

Mr. Roddy

We have not seen any of the officials down our way.

Mr. Smith

You will see them all right.

Mr. Cogan

I wonder if the Parliamentary Secretary is satisfied that this section is properly drafted?

Mr. Smith

I must leave it to my legal advisers to look after that side of it.

Mr. Hughes

I will divide the House on this point, unless the Parliamentary Secretary undertakes to make it perfectly clear on the Report Stage, by the introduction of some further phrase. If necessary, I myself will put down an amendment for the Report Stage, saying that this applies only in the period of transfer before reconstruction takes place. Certainly, after reconstruction this paragraph should not be effective.

An Ceann Comhairle

Does the Deputy want a division on it now?

Mr. Smith

There is no need for a division.

Mr. Hughes

If the Parliamentary Secretary gives that undertaking, I will not challenge a division.

Mr. Smith

The old district is gone once the reconstruction takes place.

Mr. Hughes

Yes, but the right of the litigant remains.

Mr. Smith

There is no such thing as discerning between one district and another, because that district is gone.

Mr. Hughes

The section starts off by saying:—

"Whenever a certificate of completion has been issued and also whenever a maintenance transfer order has been made, the following provisions shall apply..."

One of them is paragraph (b). I am inclined to meet the Parliamentary Secretary on the point that he is putting to the House, but I feel that the section is badly drafted. If the Parliamentary Secretary is prepared to make the matter clear between now and Report Stage, I will not challenge a division.

Mr. Smith

If I give the Deputy the assurance that it is not——

Mr. Hughes

The Parliamentary Secretary will have to improve on that. That is not good enough.

Mr. Smith

It cannot be improved on from the point of view of making it more clear.

Mr. Hughes

I am prepared to leave it over for Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 110 not moved.

Mr. Smith

I move amendment No. 111:—

In sub-section (1) (c), page 25, to delete in line 34 the words "in the month" and substitute the words "on or before the 15th day" and to delete in line 37 the word "in" and substitute the words "on or before the 15th day of".

This is a drafting amendment.

Amendment agreed to.

Mr. Cogan

I move amendment No. 112:—

In sub-section (1) (c) to delete all words after the word "year" in line 41 to the end of the paragraph, and substitute the following words:—

"and apportion the said estimated probable cost between all counties in proportion to the poor law valuation of the said counties."

The main purpose of the section, as I understand it, is to provide that the burden of the cost of maintenance of all drainage works shall rest on the local authority. I was hoping that I might be able to draft some kind of amendment that would place that burden on the national Exchequer instead, but I am afraid I could not devise any such amendment. Since the burden is to be borne by the county councils and it might occur that one or two county councils might be victimised inasmuch as the burden would be excessively heavy on one particular county or two, I consider it would be better if the cost were distributed equally over all counties. That may seem to be going too far, but when we consider that one of the principles of this Bill is to take the burden of maintenance off the individual landowners affected and to make it a county-at-large charge so that the ratepayers in even the largest counties must bear the cost of maintenance of perhaps a comparatively small work in a particular county, I do not see anything wrong in distributing the burden equally over all counties. There can be nothing objectionable in it. It would avoid friction and dissatisfaction between one county and another.

Mr. Hughes

I think the Deputy would be well advised to withdraw his amendment. Suppose you had two counties involved in 100 miles of drainage work and that one county had 99 miles—to take an extreme case —and the other county one mile of drainage. I think that if I were living in the latter county I would kick up a big row if I had to pay 50 per cent. of the cost of the maintenance of that work.

Mr. Cogan

That is not the purpose of the amendment.

Mr. Smith

The Deputy wants a fiat rate for the whole country. Deputy Hughes's argument would apply all the same.

Mr. Hughes

It would apply in this way: if you had a particularly dry county where they were short of water, and you asked them to pay for the drainage of another part of the country that had too much water. In that case the former would not be getting any benefit.

Mr. Cogan

The same argument could be used against the present system by which you have a flat rate for an entire county. Take the case of a very large county half or three-quarters of which may be exceptionally dry and may not require drainage of any kind. Yet, under the Bill, all the people there will have to bear their share of the drainage rate.

Mr. Smith

This matter was very carefully considered by us and we decided against the course suggested in these amendments. There is general agreement that the principle of paying in proportion to the benefit received is not an unsound one. It was only departed from in the case of riparian owners for convenience purposes.

Mr. Cogan

But it has been departed from?

Mr. Smith

It has, but there was nothing wrong with it in principle. It was dropped, and the county-at-large charge was substituted for the reason that the county is a unit. It is the nearest that you can get to the individual in this particular case. The county is responsible for many of its own services. If the principle in the Deputy's amendment were to be accepted, we would have a great deal of agitation and not the harmony which he suggests. I believe it would have the very opposite effect in counties in which there are not very serious drainage problems if the people there were to be called upon to pay into a pool on a flat rate from which they would get very little benefit. You would have a great deal of agitation conducted by local authorities as to the injustice of that state of affairs. For these and for other reasons that it is not necessary to go into, it was found, on giving these amendments consideration, that the course suggested in them would not be a wise one to take.

Mr. Cogan

Will the Parliamentary Secretary not agree that it could be a greater cause of friction in a case say where a river is flowing through two counties? A great deal of work is carried out on the outfall works in one county but very little benefit is derived by the county from that work. Would not that county feel a very big grievance if a very substantial burden were placed upon it as against the other county which derived all the benefit? Is not that much more likely to be a cause of friction than if there was a flat rate?

Mr. Smith

The cost of maintenance of outfall works would not be very high.

Mr. Hughes

That is an important point, but surely that is taken into account in the final award?

Mr. Smith

They would only have to pay in proportion to the benefit conferred. The cost of the outfall works would not have any determining effect on the cost of the maintenance. I think that the Deputy could withdraw this amendment.

Amendment, by leave, withdrawn.

Amendment No. 113 not moved.

Mr. Smith

I move amendment No. 114:—

In sub-section (1), (f), page 26, to delete in lines 28 and 29 the words "in the year next after the year in which such demand for payment is made" and substitute the words "next following such 30th day of September".

This is a drafting amendment.

Amendment agreed to.

Amendment No. 115 not moved.

Mr. Corish

I formally move amendment No. 116:—

In sub-section (3) (a), page 27, before the word "employed" in line 14 to insert the word "wholly".

What does the Parliamentary Secretary say about it?

Mr. Smith

There is nothing to it.

Amendment, by leave, withdrawn.

Amendment No. 117 not moved.

Section 37, as amended, agreed to.

SECTION 38.

Mr. Corish

I move amendment No. 118:—

Before Section 38, in page 27, to insert the following new section:—

"The moneys payable by a county council in pursuance of the next preceding section shall become due only to the extent that the commissioners certify that the maintenance work included in the estimate prepared in accordance with that section has been carried out."

What is the Parliamentary Secretary's view on this?

Mr. Smith

My information is that the point is already covered.

Mr. Hughes

You submit your estimate, of course?

Mr. Smith

Yes, and we mend our hand the following year if there is any excess.

Mr. Hughes

You make any adjustment necessary.

Amendment, by leave, withdrawn.

Amendment No. 119 not moved.

Question proposed: "That Section 38 stand part of the Bill."

Mr. Hughes

Sub-section (1) is shocking. It gives power to enter on land and to do all such things as shall be necessary or incidental to maintenance. You cannot more clearly define the duties of the commissioners in regard to work than "Do all the things that shall be necessary for the incidental carrying out of the work."

Mr. Smith

That is very useful.

Mr. Hughes

If an ordinary contractor were doing a job and if you drew up the terms of his contract in that way, it would be a rather poor contract. That is a shocking piece of legislation. It may have been taken from other Drainage Acts; I do not know. It gives power to "take from any land all sods and other material required for the purposes of such maintenance". You could go ten miles away and take sods and other material. We talk about the value of soil in this country. We are going to dig up the surface of the earth and make embankments out of it. Paragraph (d) empowers the commissioners "to utilise for the purpose of such maintenance all or any soil, gravel, stone, rock or other material removed in the course of such maintenance". Then in sub-section (2) we give power to "execute such improvements to such drainage works or existing drainage works as appear to them to be minor matters". The drafting is so wide it simply means that the commissioners can do what they like. That right is preserved through the whole Bill and they have very wide powers when they enter on a piece of land.

Mr. Smith

I suppose, when we proceed to carry out the work, we will find that we have not powers enough.

Mr. Hughes

The only thing I take exception to is that when you have taken the wide powers you are not prepared to put in the safeguards. The Parliamentary Secretary is absolutely stubborn about that. I am afraid that in a very short time he has developed the Departmental mind. The Civil Service has had an overpowering effect on him. He should preserve the mentality of the ordinary citizen, of a democrat, who believes in making the Department do its job and imposing the necessary check on it, and if it does not do its job then the citizen has a right to bring the Department to court and test the matter there. I think that between this and Report Stage the Parliamentary Secretary would be well advised to reconsider the whole matter of putting in safeguards. It changes the mentality of an official if he feels that the individual has certain safeguards and can test him in court. The moment he walks in with full arbitrary powers, he is quite a different individual to deal with. Are we going to legislate in this House to give powers of that sort to individual engineers? They may be very decent men if they know that you can take them to court and test their right and authority to do certain things. If the citizen has not that power, some of them may still behave as decent men, but all of them will not behave as decent men. That section attacks the fundamental liberty of the individual. It is shocking legislation and, as I pointed out to the Parliamentary Secretary, it has been vigorously condemned in the Report of the Vocational Organisation published a few days ago. Why do we set up such commissions if we do not take cognisance of their recommendations?

The Parliamentary Secretary suggested that I wanted to prevent national drainage in this country. I am as anxious as the Parliamentary Secretary is that there should be national drainage, but I say that giving a drainage authority exceptional powers which are necessary requires the necessary safeguards so far as the individual and the local authority are concerned. We have given all the exceptional powers that are necessary to the drainage authority that we are setting up and the Parliamentary Secretary and the Government Department generally are refusing to put in any of the essential safeguards.

Mr. O'Donnell

"A decent man" is frequently another name for a fool.

Mr. Smith

I only want to say that the only fears I have are as to the danger of our not having sufficient powers. I feel that when we proceed to do this work we will find in all probability that we have not sufficient powers in certain cases. Instead of my mind running on the same lines as Deputy Hughes, having doubts and fears as to the powers we are taking here, I look in the opposite direction and my only fears are that we might not have powers enough.

Mr. Roddy

What additional powers do you think you might want?

Mr. Smith

One never knows.

Mr. Roddy

Can the Parliamentary Secretary mention any?

Mr. Hughes

Is that a fair answer to our criticism? We have said that we are prepared to give you any exceptional powers you want—because you want very wide powers to carry out a national drain age scheme like this — but we have pressed you time and again to put in the very necessary safeguards. That is our line of argument. We are not denying you the powers, but we are pressing for the safeguards which the Parliamentary Secretary has adamantly refused.

Question put and declared carried.

SECTION 39.

Mr. Smith

I move amendment No. 120:—

In sub-section (1), page 28, to delete in line 11 the words "water-rights" and substitute the words "fisheries, water-rights, navigation rights"—Aire Airgeadais.

This is a drafting amendment.

Amendment agreed to.

Section 39, as amended, agreed to.

Question proposed: "That Section 40 stand part of the Bill."

Mr. Hughes

I cannot understand the necessity for taking power to amend an award. Where is it likely to arise?

Mr. Smith

When the scheme is amended.

Mr. Hughes

When you carry out portion of a scheme and complete it afterwards?

Mr. Smith

If it is found, on completion of a scheme, that it requires amendment. The award then has to be amended in accordance with the amended scheme.

Question put and agreed to.

Section 41 agreed to.

SECTION 42.

The following amendment stood on the Order Paper, in the name of Deputy Norton:—

In sub-section (2) (a), line 46, page 28, to delete the word "three" and substitute the word "seven".

Mr. Corish

Deputy Norton is ill, and I do not know what he had in mind with regard to this amendment.

Mr. Smith

We would be inclined to meet him on this. He suggests that the time should be extended. We will try to meet him.

Mr. Corish

You will bring in an amendment on Report?

Mr. Smith

Yes.

Amendment No. 120 not moved.

Mr. Smith

I move amendment No. 122:—

In sub-section (2) (d), page 29, line 9, to insert before the words "in his own" the words "by the reference committee."

This matter has been considered already.

Amendment agreed to.

Mr. Hughes

I move amendment No. 123:—

In sub-section (2) to delete paragraphs (f) and (g), lines 15-23.

This aims at making the appointment permanent. Under the original legislation, the Acquisition of Land (Assessment of Compensation) Act, 1919, the decision was that the officials appointed held permanent office. I think there was some good reason for making that decision. In the first place, they would be more independent. The Parliamentary Secretary has given way on the proposals here by which the reference committee would pick a panel of arbitrators, and whenever the Minister wanted an arbitrator, he would simply take one from the panel. I was inclined to argue that the Minister would pick a man who would suit him, as he would. If he did not like him, he would get another. The same thing would apply where a man holds a temporary office. If his awards are too generous, from the commissioners' point of view, they may get some other man, but if a man held a permanent office, he would be independent and not afraid of losing his job.

There is another aspect, that is, that a man might be a member of a firm or associated with a firm which might be interested. It might be a milling interest in a stream in relation to a water right which might be in question and temporary appointments for that reason are undesirable, especially in the case of an arbitrator. When the British, who passed this Act originally, insisted on a permanent appointment, there was a very good and valid reason for putting men in strictly impartial and independent positions and above any influence by the State or anyone else. They got reasonable remuneration for their work, and were completely independent. If you want to get the strictly impartial decisions which are necessary, if the arbitrator is to do his work properly, it would be more desirable to have a man in a permanent position than in a temporary position. If a man holding a temporary appointment for three years makes awards which are too favourable to the individual, from the commissioners' point of view, or from the point of view of the Minister for Finance, who has to pay the compensation, he will get the "sack."

Mr. Smith

It happens that there is no ulterior motive in this. The Drainage Commission had something to say about this matter, and we are following closely the lines they recommended to us. They visualised a large number of cases arising in which the services of arbitrators with varied qualifications would be necessary. It is not the same as the acquisition of land for housing. The question of mill rights, fisheries, land, and so on, will arise, and they apparently came to the conclusion that it would be better if the reference committee had power to select a man, even though he might be engaged in private practice. We saw that the recommendation was sensible, and we made this alteration. There is no danger or harm in it, and I think it very necessary.

Mr. Hughes

I think it was made clear in the original Act that a man held a permanent office for a definite reason, to ensure that there would be no danger of abuse. A man might be called on to arbitrate on a matter on which commercial interests, in which he himself might be indirectly involved, arose.

Mr. Smith

I do not think there is any fear of that.

Mr. Hughes

Will the Parliamentary Secretary consider it?

Mr. Smith

I am following exactly the recommendation of the Drainage Commission, and I think the Deputy can let it go.

Amendment, by leave, withdrawn.

Mr. Corish

I move amendment No. 124, on behalf of Deputy Norton:—

At the end of paragraph (f), line 20, to insert the following proviso:—"provided, that the Minister shall fix in respect of all members of the panel a uniform scale of remuneration and fees, travelling and subsistence allowance so far as may be practicable".

Mr. Smith

Deputy Norton wants a uniform scale. I do not think it would be fair or right to fix a uniform scale because the qualifications of the men employed will not be uniform.

Mr. Corish

But in so far as they are?

Mr. Smith

The scales appropriate to the individual, in accordance with his qualifications and standing, will be paid.

Amendment, by leave, withdrawn.

Question proposed: "That Section 42, as amended, stand part of the Bill."

Mr. Hughes

What guarantee have we in any part of the section that a man with technical experience will be chosen as an arbitrator? The Parliamentary Secretary suggests that he favours the temporary appointment because there might be a variety of interests involved. Have we any safeguard that, in the event of the milling industry being involved, an engineer with technical knowledge will be selected?

Mr. Smith

The arbitrator will be given to us by the Reference Committee.

Mr. Hughes

For a specific purpose?

Mr. Smith

Yes. We will not have any say as to who the arbitrator will be.

Mr. Hughes

But the purpose for which he is required will be stated?

Mr. Smith

Yes; that has to be done.

Question put and agreed to.

Amendment No. 125 not moved.

SECTION 43.

Mr. Larkin (Junior)

I move amendment No. 126:—

To add at the end a new sub-section as follows:—

(3) Whenever under this section the commissioners in lieu of executing any specified work themselves contract with some other person for the execution of the whole or any part of such works it shall be mandatory on the commissioners to insert in the contract made with such other person a provision requiring such other person to pay rates of wages and observe conditions of employment not less favourable to the persons employed under the contract than the wages paid and conditions of employment prescribed under trade union agreements applicable to work of a similar kind or in the absence of such trade union agreements the wages paid and the conditions of employment observed by good employers in the district in which the work is carried out.

We propose that where the commissioners give out any works for which they are responsible for execution by contract, a clause shall be inserted requiring the contractor to observe trade union conditions, or, where there is no trade union agreement, to observe the wages and conditions observed by employers in the district.

This is in conformity with Government policy and the generally recognised policy of local authorities throughout the country that contractors should not be permitted to carry out a contract under wages and conditions less favourable than the local authority or the Government Department itself would observe. In so far as we include the alternatives, that either the trade union clause, which is the clause included in many tenders of local authorities, or the terms of the fair wages clause, which the Board of Works itself observes, I think the Parliamentary Secretary should meet us in the matter.

Mr. Smith

In making contracts, we always stipulate for a fair wages clause. That has been our policy, and will continue to be our policy. The amendment, of course, is not altogether in that form. But we are committed by practice and otherwise to a policy of stipulating in every contract that we make with an outsider that he will observe the fair wages provision.

Mr. Larkin

In so far as there is no issue as between the Parliamentary Secretary and the principle of the amendment, would he not accept the amendment to make it quite clear that such a practice would be definitely binding?

Mr. Smith

The amendment could not be accepted in the form in which it is. There is no necessity to cover the point which the Deputy raises.

Mr. Corish

Supposing a sub-contractor were employed?

Mr. Smith

It does not matter who is employed, he will be bound by the conditions.

Mr. Corish

The conditions will pass on to the sub-contractor?

Mr. Smith

Yes.

Amendment, by leave, withdrawn.

Section 43 agreed to.

SECTION 44.

Question proposed: "That Section 44 stand part of the Bill."

Mr. Hughes

In this section, power is asked for, in the event of the local authority not paying up when the bill is presented, to secure that any moneys coming from any Department of State may be withheld for the purpose of discharging the liabilities to the commissioners. Supposing there is a dispute between the local authority and the commissioners regarding the amount involved or the efficiency of the work or anything else; surely that sort of procedure is wrong, that we should authorise any Department or any Minister to deduct money for the purpose of discharging the liability of the commissioners. In the event of any dispute between a local authority and the commissioners regarding the efficiency of the work, the magnitude of the bill, or any point that might be the subject of litigation in such circumstances, we should not agree to this provision that money should be deducted from other sources. Such money might be for the purpose of dealing with tuberculosis or some other purpose altogether. I am certainly opposed to this section.

Mr. Allen

I hope the Parliamentary Secretary will see his way to delete this section on the Report Stage. Local authorities under this Bill, when it becomes an Act, will be called upon to act in a very responsible manner, and I think this penal section is all wrong. This is the only Bill, other than Land Bills, which came before the House in which this section is included. At present, local authorities remit to certain Government Departments huge sums of money each year, for instance, in repayment of loans out of the Local Loans Fund, and not a single one of them has ever defaulted to the extent of 1/-. They raise the rates faithfully each year, and remit every 1/- they owe to the Local Loans Fund without any penal clause compelling them to do so. I cannot understand why this section was lifted bodily out of the Land Act and put into this Bill. Several Bills have been passed providing that local authorities should raise certain funds and remit them to the central authority. In no case was a penal clause such as this inserted. To my mind, it is degrading to the local authorities to say that responsible bodies will not pay their just debts to the State, that they will not raise sufficient funds to pay what is a statutory obligation. It is made a statutory obligation in this Bill for a local authority to raise a certain county-at-large rate to the extent of the certificate of the drainage commissioners, and the suggestion here is that local authorities will hang on to this money and will not remit it to the drainage authority. The drainage commissioners have plenty of powers, other than this section, to get the money. They can go into court at any time and mandamus the local authority or sue them, if any local authority were so foolish as to withhold the money. They are bound each year to raise the money. The county manager will have no option but to raise the money. The members of the council will not have the right to decide not to raise the money. It is mandatory on them to raise the money each year. To say that a county council will have power to withhold the money is all nonsense. It is an executive function. The council will have no control over any of the funds other than to provide them. This would seem to contemplate that the county manager would withhold these moneys from the commissioners. I hope the Parliamentary Secretary will see his way to have the section deleted on the Report Stage. It is a penal clause which is bringing the county councils into absolute contempt. The people who put in that section had nothing but contempt for local authorities. That is my opinion.

Mr. Cogan

I agree with Deputy Allen that this section appears to be unnecessary. I was not quite sure whether this was an executive function or a reserved function. Deputy Allen says it is an executive function. If it is, it is a function of the county manager, who is the direct servant of the Government, and he is not likely to default in the payment of the money due. If Deputy Allen is wrong and it is a reserved function, we all know that county councils are subject to very rigid control by the Local Government Department. County councils have been abolished for smaller offences than not providing moneys such as these which are statutorily due. Therefore, there seems to be absolutely no justification for putting in this penal section. It is not desirable that the commissioners should have power to collect this money from some other funds due to the county councils.

By making that deduction from some other fund that is payable to the county council they may upset the finances of the county council unduly. I cannot conceive any delay occurring in the payment of these amounts unless where there is a very serious difference of opinion as to whether the amount is actually due. In a case like that I do not think it would be desirable that the commissioners should have such drastic powers. I think the fact that local authorities are under such rigid control should be sufficient guarantee that the money will be paid.

Mr. Roddy

Whatever case there might be for the inclusion of such a section in other legislation, I certainly do not think there is any need for it in this Bill. It is true, as Deputy Allen pointed out, that a similar section was included in some of the Land Acts. I do not know whether the section in the Land Acts was as drastic as this particular section. It is most unlikely that any county council would default in regard to whatever payments may be due to the Board of Works. I think sub-sections (2) and (3) could safely be deleted.

If Section 44 is read in conjunction with Section 45, it would appear that the Drainage Commissioners will be performing another function as well; that is, a sort of debt-collecting agency, because in Section 45 it would seem as if they are going to collect all the money due to other Departments of State as well as what is due to the Board of Works. I think Section 45 is an insult to local authorities.

I agree with Deputy Allen that it is most unlikely that a county manager will refuse to make payments. I do not know whether it has happened in the past, but we are all aware that county managers are appointees of the Minister for Local Government and I cannot understand how they would refuse to meet claims made upon them by the Drainage Commissioners in respect of any moneys due. I consider this section entirely unnecessary.

Mr. Smith

If the county manager does not refuse to pay, the section will not operate against him.

Mr. Roddy

Why does the Parliamentary Secretary assume that such a case will arise?

Mr. Smith

If he pays he will never know anything about this section.

Mr. Corish

I agree with the point of view expressed by Deputy Allen. I do not see any reason why this section should be included in the Bill. I have a good deal of experience of local authorities and I have never known one of them to withhold a payment of this kind. It is a penal clause against local authorities and there is no necessity for it. I do not know what right the Parliamentary Secretary has to assume that any local authority will withhold such payments. Local authorities all over the country have been appealing for proper drainage laws so that drainage may be carried out in their districts and they will be only too happy to pay whatever is due under this measure. I ask the Parliamentary Secretary to withdraw the section. It shows a complete distrust of local authorities. There has been enough interference with local authorities in recent years without a section of this kind being brought in. To my mind this is extraneous matter altogether. I will definitely call for a division on this section.

Mr. Smith

This section has been a feature of all legislation for some time.

Mr. Corish

Where? Mention one Act.

Mr. Smith

I can only say this, that if a council pays the moneys that are due to the commissioners, neither the county council nor the county manager will ever know there is such a section in the Arterial Drainage Act. If they do not pay, the section merely gives the commissioners power to make a deduction from any moneys due to the council. I do not think there is any harm in having that safeguard there.

Mr. Corish

Why entertain such a thought?

Mr. Smith

You would be surprised at the thoughts than run in people's minds sometimes.

Mr. Corish

I think this is belittling a council. I see no reason why you should assume that a council will not pay its debts. I do not know of any other Act of Parliament which has a similar section.

Mr. Allen

This section has its origin in the first Land Act that was passed by the British Parliament. It was also embodied in Land Acts passed by this House, but to my knowledge it was embodied in no other legislation. Under the 1925 Drainage Act moneys had to be remitted to the central authority and under other Drainage Acts moneys had to be remitted. To my knowledge, no local authority has ever defaulted to the extent of 1/-. The Parliamentary Secretary has not answered that.

The insertion of this section in the Bill is no injury to local authorities, but it shows an utter contempt for them and it indicates that here are some kind of wild men, halfsavages, who will not pay these debts. That is how it appears to me and for that reason I object to the section. Local authorities have a pride in their business, just the same as this Parliament has a pride in doing its duty and paying its debts. The Drainage Commissioners and the Board of Works have statutory powers to collect any money that is due. They have the same authority to collect as other Departments of State. If the Minister for Agriculture is owed money by a county committee he has power to go to court to collect it. So, too, the Office of Public Works has power to collect debts, and I do not think it can claim that any local authority withheld money that was due. If the Parliamentary Secretary can give me one instance of where they withheld money, I shall withdraw my opposition.

Mr. Bennett

With other Deputies, I appeal to the Parliamentary Secretary to withdraw this section. I think he might reasonably give way to us on this occasion. As Deputy Allen so well argued, it does not matter very much whether it is in or not, but it does cast a slur on very respectable bodies. We have been arguing about the commissioners, and when we suggested they should be compelled to do certain things the Parliamentary Secretary would not give us any hearing—it was almost calumny to suggest the commissioners would act as we suggested. How, he asked, could any reasonable man assume that the commissioners would do what was suggested? It was unthought of. Here it is a case of a county council doing something which a county council was never known to do and yet the Parliamentary Secretary thinks it necessary to put in this section. I think he is unreasonable in not meeting Deputies on this matter.

Mr. Roddy

Will the Parliamentary Secretary consider this matter between now and the Report Stage?

Mr. Smith

It is not one of these matters where you can see on its face what it is aimed at. It is a question of whether the thing is right or wrong. I do not understand those Deputies who are so sensitive about local authorities.

Mr. Allen

We are not a bit sensitive at all.

Mr. Smith

The sensitiveness is so highly developed that it is beyond me to understand it. This is a section which merely says that, if money is due, power will be given to those to whom it is due to take the amount from money which they might have to pay. There could be a case in which we would take over a district and be responsible for maintaining it, while the local authority would be responsible for paying for that maintenance. If they refused to pay us promptly, or were squabbling about it, we want to be able to take the amount from those sums due to them. I know what local authorities are, I have some experience of them and I cannot see that there is anything in this section in any way offensive, if they do their job.

Mr. Corish

It is not at all a question of sensitiveness: it is a question of pride in the local authorities and resentment that the Parliamentary Secretary has not faith in them. He has not been able to cite one instance where a local authority broke its word, in so far as payment for lawful debts is concerned. I cannot see why it is necessary to have such a section. There has been enough interference with the local authorities in recent years: do not let us wipe them out of existence altogether by having no respect for them at all.

Mr. Smith

I am not interfering with them.

Mr. Broderick

The principle enshrined in this section is a most objectionable one. It was established in the first Land Acts, when the moneys due to this country at that time from the Imperial Exchequer were impounded and made liable for any defalcation under the Land Acts. That is a principle we strongly resented even then, through our representatives, and that resentment still remains. It is repugnant to us now that the very same principle should be adopted by our own Department of State, and that moneys due to the county council could, if there were any neglect or dispute, be held liable for that payment. It is an unnecessarily provocative section, continuing a principle that everyone in this State repudiated when it was first introduced against us. It is very bad policy that we should now adopt the ways and means formerly adopted against us when we had legitimate claims to fight. The principle is now being brought against the local authorities, a section of our own people. I regret to have to speak in that way and to impeach it on those lines, but when has a local authority refused to face its liabilities? I am not aware of it and I have had very close and intimate association with local authorities for a very considerable time.

It is entirely unnecessary that we should take over this method, which was repudiated by us previously, with emphasis, when it was first introduced, as a dictatorial and arbitrary method of recovering annuities in this country. It is a particularly bad principle and, on those grounds alone, I would ask the Parliamentary Secretary to withdraw the section. It is not in the least effective and is entirely unnecessary, as it has never been known that a local authority refused to face its liabilities. Why should this section be introduced, in a Bill which is unquestionably of great advantage to the country? Why put the House to the pain of dividing on this point and compel members of the Government Party to vote for it, although they see the effectiveness of this section against local authorities and see in this a very close adherence to the procedure adopted against our people by the people of another country.

Mr. Roddy

Will the Parliamentary Secretary consider it between now and the Report Stage?

Mr. Smith

I find this section in the Local Loans Fund Act, as well as in the other Acts mentioned.

Mr. Roddy

We know that, but will the Parliamentary Secretary consider it?

Mr. Smith

No.

Question put.

The Committee divided:— Tá, 58; Níl, 27.

Tá

• Aiken, Frank.
• Allen, Denis.
• Bartley, Gerald.
• Beegan, Patrick.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Dan.
• Brady, Brian.
• Brady, Seán.
• Brennan, Martin.
• Brennan, Thomas.
• Breslin, Cormac.
• Briscoe, Robert.
• Buckley, Seán.
• Burke, Patrick (Co. Dublin).
• Butler, Bernard.
• Carter, Thomas.
• Childers, Erskine H.
• Colbert, Michael.
• Colley, Harry.
• Corry, Martin J.
• Daly, Francis J.
• Derrig, Thomas.
• De Valera, Eamon.
• Fogarty, Andrew.
• Fogarty, Patrick J.
• Furlong, Walter.
• Harris, Thomas.
• Hilliard, Michael.
• Humphreys, Francis.
• Kennedy, Michael J.
• Kilroy, James.
• Kissane, Eamon.
• Loughman, Frank.
• Lydon, Michael F.
• Lynch, James B.
• McCann, John.
• McCarthy, Seán.
• MacEntee, Seán.
• Morrissey, Michael.
• Moylan, Sean.
• O Briain, Donnchadh.
• O Ceallaigh, Sean T.
• O'Connor, John S.
• O'Grady, Sean.
• O'Loghlen, Peter J.
• O'Rourke, Daniel.
• Rice, Bridget M.
• Ruttledge, Patrick J.
• Ryan, Mary B.
• Ryan, Robert.
• Sheridan, Michael.
• Skinner, Leo B.
• Smith, Patrick.
• Traynor, Oscar.
• Walsh, Laurence.
• Ward, Conn.

Níl

• Bennett, George C.
• Broderick, William J.
• Cafferky, Dominick.
• Coburn, James.
• Cogan, Patrick.
• Coogan, Eamonn.
• Corish, Richard.
• Cosgrave, Liam.
• Dockrell, Henry M.
• Doyle, Peadar S.
• Fagan, Charles.
• Flanagan, Oliver J.
• Giles, Patrick.
• Heskin, Denis.
• Hughes, James.
• Keating, John.
• Keyes, Michael.
• McFadden, Michael Og.
• McMenamin, Daniel.
• Mulcahy, Richard.
• O'Donnell, William F.
• O'Higgins, Thomas F.
• O'Leary, John.
• Pattison, James P.
• Reidy, James.
• Reynolds, Mary.
• Roddy, Martin.

Tellers:— Tá: Deputies Kissane and Kennedy; Níl: Deputies P.S. Doyle and Corish.

Motion declared carried.

SECTION 45.

Mr. Corish

On behalf of Deputy Norton I move amendment No. 127:—

In line 20, after the word "person" to insert the words "on foot of a decree".

I think it is reasonable that the Parliamentary Secretary should accept an amendment of this kind. After all, it is only right that someone, other than a Minister of State, should determine whether a debt is due or not.

Mr. Smith

It is scarcely likely that a State Department would demand money that is not due from an individual. I do not think it would be fair to ask them to go to court to get a decree.

Mr. Roddy

Is this section also taken from one of the old Acts?

Mr. Smith

It is.

Mr. Roddy

Surely the Parliamentary Secretary does not consider it necessary to take such power, in view of the fact that other departments over which Ministers are the heads, for example, the Revenue Commissioners and the Land Commission, have machinery of their own for collecting debts? Why should the Parliamentary Secretary and the Drainage Commissioners assume the responsibility of a debt-collecting agency for these different State departments? Even assuming that such a section is in one of the earlier Acts, that is no justification for introducing it into this Bill at this stage of our history.

Mr. Smith

Co-operation.

Mr. Roddy

But, surely, all these State Departments have machinery of their own for collecting their debts. It seems to me very unfair that a person to whom compensation is payable should be treated in this fashion, and that the Drainage Commissioners should act as a sort of vigilance committee on behalf of other Departments of the Government.

Mr. Hughes

I think that the Parliamentary Secretary has not the slightest doubt that the Revenue Commissioners will collect any money that may be due to them.

Mr. Smith

It might not be so easy in certain cases.

Mr. Hughes

I think the section is very objectionable. We should not be prepared to grant privileges of that sort. The Revenue Commissioners invariably decide that the money is owed. In this case, once they decide that the money is due, there is an end to it. There is some justification for the amendment suggested by Deputy Norton on foot of a decree, but in any case I think the section is highly objectionable. Opportunity should not be taken in this Bill to take one year's income-tax or an annuity that he owes from a person because for once in his life he is entitled to compensation since you have taken some rights from him, acquired land or something like that.

Mr. Smith

I think it would be a very useful power. Would the Deputy realise that sums of money might be due by an individual to a State Department? He might be an individual from whom it would be impossible to recover. Is it suggested that in the event of another State Department having to pay money to that individual we should not take the right here to deduct the sums that were due to him—that we should in fact pay money to him although when, we had paid, the other Department would not be able to recover the amount that was due to it?

Mr. Hughes

The Revenue Commissioners is the deciding factor, according to the section, as to whether it is due or not.

Mr. Smith

They know the sum of money due to them. The State Department would not know.

Mr. Hughes

The individual might be disputing the amount.

Mr. Smith

State Departments are not going to become highwaymen.

Mr. Roddy

According to the section, it appears to me to be obligatory on the commissioners to make inquiries from all other Departments as to whether this man to whom compensation is payable owes any money to any of these Departments. That is a responsibility the Drainage Commissioners are assuming.

Mr. Bennett

I think this is a worse section than the other. With all the work the commissioners are going to have under this Bill—and goodness knows they will have a whole-time job if they are to do the draining of the country in any reasonable time—we are giving them the job of debt collector. I think it is monstrous. I cannot find any other word for it. The Parliamentary Secretary says he cannot conceive of any Department asking money that is not due to it. He cannot conceive of any Department asking money that is not due to it. He cannot conceive even the Revenue Commissioners demanding money that is not due to them. I can conceive it. In fact, I have had painful experience of even the Revenue Commissioners demanding money from me that I did not owe. I remember taking the Revenue Commissioners to court and beating them. The Parliamentary Secretary tells me, with a face of clay, that he cannot imagine a Department of State, particularly the Revenue Commissioners, demanding money that was not due. If I had the same case to-morrow as I had some years ago against the Revenue Commissioners, all they need do would be to refer to the Drainage Act and say: "Collect the money; he owes it to us." I would have no redress. The Drainage Commissioners are not only to be debt collectors for the Revenue Commissioners but for the Land Commission and any other Department of State. They are going to have a fine job. I cannot argue the section without losing my temper. I am going to vote against it if nobody else challenges a division.

Mr. Corish

It appears to me that the object of this Bill is being lost sight of altogether. Why should a Bill of this kind be used as a medium to set up the Drainage Commissioners as a collector for other Ministries? This might prevent urgent drainage work from being carried out, if it is carried to its logical conclusion. It is a very objectionable section. We will have to amend it as best we can but I do suggest to the Parliamentary Secretary that it should not be in the Bill at all. Again I say it is extraneous so far as the real objects of the Bill are concerned.

Mr. Smith

Surely the arguments are not seriously contended? Surely they are not being advanced in a serious manner?

Mr. Corish

Very serious.

Mr. Bennett

Quite serious.

Mr. Smith

Let us take the case of an occupier of land who, for one reason or another, whether through inability or otherwise, has failed to pay his annuities?

Mr. Corish

It is going further than that.

Mr. Hughes

Take the case of the man who is disputing the debt.

Mr. Smith

Never mind that case. Take the case of a man who has failed to pay his annuities to the Land Commission, and suppose that same individual was awarded compensation as the result of the activities of this drainage authority. Assuming that as a result of arbitration it was decided that this man should get compensation to the extent of £50, £100 or £200, is it seriously suggested that the State Department should hand that money to that man without having regard to whether or not his annuities had been paid? If that is put forward as a serious argument or if it is contended that that is imposing an injustice, there is no use in talking.

Mr. Corish

That is only dealing with one transaction. In this section the drainage authority is empowered to act on behalf of any Ministry. As far as I am concerned, I would agree to it in so far as arrears of annuities in respect of land are concerned, but I would not agree to give power to collect in behalf of other Ministries in connection with transactions that have nothing, good, bad or indifferent, to do with the particular thing you aim to do here.

Donnchadh O Briain

Is the section so unusual? I remember a case that came to my notice some years ago where an applicant was awarded compensation under the Damage to Property Act, 1934. That person owed money to the National Health Insurance for stamps that he had failed to put on his employee's card. The amount was deducted from the compensation he was awarded by the Department of Local Government. Evidently this procedure has been followed in other legislation.

Mr. Corish

What was the award in respect of?

Donnchadh O Briain

It was under the Damage to Property Act, 1934.

Mr. Corish

Was it in respect to damage to his factory?

Donnchadh O Briain

No, it was under the Damage to Property Act, 1934.

Mr. Corish

It might be in connection with an industry?

Donnchadh O Briain

No, it was not. It was under the Damage to Property Act, 1934, which was passed by this House to enable applicants to apply for compensation in respect of damages incurred during the Black-and-Tan and civil wars.

Mr. Hughes

We had better not befog the position or try to drag a smoke-screen around it.

Donnchadh O Briain

There is no smoke-screen.

Mr. Hughes

Supposing it is due to the Land Commission, we are not objecting to that, even if the Parliamentary Secretary accepts the amendment, but in the case of money due to the Revenue Commissioners, the Revenue Commissioners are going to decide whether the debt is due or not, and no one else. That is the position. The individual might be disputing the amount but, whether he disputes it or not, the Revenue Commissioners can inform the Drainage Commissioners that the amount is due, and the Drainage Commissioners deduct it.

Donnchadh O Briain

He has his legal remedy.

Mr. Hughes

What safeguard has the individual? If the Parliamentary Secretary accepts the amendment, then we will not divide the House on the section but, if he is not prepared to accept it, we will have to divide the House. We are anxious to ensure that the individual's rights are safeguarded and they are not safeguarded under this section. It is not an unreasonable attitude. In the case of money due to the Land Commission it is not unreasonable to deduct the debt from any compensation that is payable because the amount could scarcely be disputed, but, obviously, it could be disputed in the case of money due to the Revenue Commissioners and if the matter had been lying there it is more than likely it is in dispute. In this section, the Revenue Commissioners can simply inform the Drainage Commissioners that the amount should be deducted.

Mr. Corish

I am in entire agreement with the Parliamentary Secretary in the case he put where work might be done on a particular land in respect of which land annuities were due, which ought to be collected or deducted from any compensation grant. I think Deputy Hughes is of the same opinion. That is definitely just one transaction, but we all know that from time to time there are disputes between the Revenue Commissioners and various individuals, or groups of individuals, and such a dispute might be in course of negotiation. Is it suggested that if compensation were payable to such an individual, the Board of Works should become the collector for the Revenue Commissioners? The Parliamentary Secretary would be well advised to accept the amendment. It gives him ample powers and the ultimate result would be that he would get his money.

Mr. Smith

This section appeared in every Bill that came before this House recently and no objection was raised in any shape or form to it. This section merely gives us the right to deduct. It does not prevent the individual who thinks the deduction is unfair or unreasonable from taking us to court and disputing the deduction, but I am going to resist any amendment which would impose on us the necessity for getting a decree before we can make a deduction.

Mr. Corish

The poor individual has to go to court, but the Government, with plenty of money behind it, will not go to court.

Mr. Allen

This section is not unreasonable. I challenged the Parliamentary Secretary on the last section to tell me one Act, apart from the Land Act, in which that section appeared, but in this case I know that every Act of the Dáil—Agricultural Acts, Compensation for Criminal Injury Acts and so on—had this section in it. In every case where the State pays compensation, there is a similar provision and this section is lifted exactly out of every Act under which the State pays any compensation for the acquisition of land, damage to property or in any other respect. All the agricultural Acts contain this section and I think the Opposition are unreasonable in suggesting that it should not be embodied here. It is only 12 months since Deputy Hughes allowed a similar section in an agricultural Act to go through.

Mr. Hughes

I will agree to the section if the Parliamentary Secretary will agree to the amendment.

Mr. Smith

I have no intention of doing so.

Amendment put.

The Committee divided: Tá, 27; Níl, 59.

Tá

• Bennett, George C.
• Broderick, William J.
• Coburn, James.
• Cogan, Patrick.
• Coogan, Eamonn.
• Corish, Richard.
• Cosgrave, Liam.
• Dillon, James M.
• Doyle, Peadar S.
• Fagan, Charles.
• Flanagan, Oliver J.
• Giles, Patrick.
• Heskin, Denis.
• Hughes, James.
• Keating, John.
• Keyes, Michael.
• McFadden, Michael Og.
• McMenamin, Daniel.
• Mulcahy, Richard.
• O'Donnell, William F.
• O'Higgins, Thomas F.
• O'Leary, John.
• O'Reilly, Patrick.
• Pattison, James P.
• Reidy, James.
• Reynolds, Mary.
• Roddy, Martin.

Níl

• Aiken, Frank.
• Allen, Denis.
• Bartley, Gerald.
• Beegan, Patrick.
• Brady, Brian.
• Brady, Seán.
• Brennan, Martin.
• Brennan, Thomas.
• Breslin, Cormac.
• Briscoe, Robert.
• Buckley, Seán.
• Burke, Patrick (Co. Dublin).
• Butler, Bernard.
• Cafferky, Dominick.
• Carter, Thomas.
• Childers, Erskine H.
• Colbert, Michael.
• Colley, Harry.
• Corry, Martin J.
• Daly, Francis J.
• Derrig, Thomas.
• De Valera, Eamon.
• Fogarty, Andrew.
• Fogarty, Patrick J.
• Furlong, Walter.
• Harris, Thomas.
• Hilliard, Michael.
• Humphreys, Francis.
• Kennedy, Michael J.
• Kilroy, James.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Dan.
• Kissane, Eamon.
• Loughman, Frank.
• Lydon, Michael F.
• Lynch, James B.
• McCann, John.
• McCarthy, Seán.
• MacEntee, Seán.
• Morrissey, Michael.
• Moylan, Seán.
• O Briain, Donnchadh.
• O Ceallaigh, Sean T.
• O'Connor, John S.
• O'Grady, Sean.
• O'Loghlen, Peter J.
• O'Rourke, Daniel.
• Rice, Bridget M.
• Ruttledge, Patrick J.
• Ryan, Mary B.
• Ryan, Robert.
• Sheridan, Michael.
• Skinner, Leo B.
• Smith, Patrick.
• Traynor, Oscar.
• Walsh, Laurence.
• Ward, Conn.

Tellers: Tá, Deputies Corish and Doyle; Níl, Deputies Kissane and Kennedy.

Amendment declared negatived.

Question proposed: "That Section 45 stand part of the Bill."

Mr. Corish

We are against the section.

Question put and declared carried.

Amendments Nos. 128 and 129 not moved.

Section 46 agreed to.

SECTION 47.

Mr. Smith

I move amendment No. 130:—

In sub-section (3), page 32, line 3, to delete the figures "1939" and substitute the figures "1944".

That is consequential.

Amendment agreed to.

Section 47, as amended, agreed to.

SECTION 48.

Mr. Smith

I move amendment No. 131:—

In sub-section (1), line 15, to delete the words "one month" and substitute the words "three months".

Amendment agreed to.

Amendment No. 132 not moved.

Mr. Smith

I move amendment No. 133:—

In sub-section (1), line 17, to delete all from the word "watercourses" to the end of the sub-section and substitute the words "watercourse or watercourses on the said lands as is or are specified in such notice and is or are not included in any existing drainage works or any drainage works constructed under this Act, but which discharges or discharge into an existing drainage district or a drainage district constituted under this Act and is or are, in the opinion of the commissioners, incapable, by reason of neglect or of inadequate maintenance, of efficiently discharging the water passing into or through it or them from adjoining land."

This is a fairly formidable type of amendment.

Mr. Hughes

Will the Parliamentary Secretary discuss the whole series of amendments?

Mr. Smith

I was hoping that as a result of the acceptance——

Mr. Hughes

I thought it might be convenient to discuss amendments Nos. 133 and 135.

Mr. Smith

I am proposing to discuss the whole group of amendments to the section.

An Ceann Comhairle

Amendments Nos. 133 to 139?

Mr. Smith

I was not satisfied with the section inasmuch as there was a possibility that injustice could be done to a landholder and, as a result of discussions that took place, these amendments were designed to meet that case. The House may feel that the effort has not been successful, but I think these amendments will give us the power that we want and, at the same time, give it to us in such a way as to ensure that substantial injustice could not be done to any individual.

Mr. Hughes

I must say that it was my intention before the Parliamentary Secretary put down this group of amendments to oppose Section 48. At the same time, I realised the necessity of getting after people who might be obstructing drainage being carried out. You might have some people who were anxious to carry out drainage works and an individual, who was not prepared to do anything about it, might intervene between that group of individuals and the outfall. Therefore, it was necessary to take power to do something about it. I agree that the amendments provide a pretty fair safeguard. This is the first time in two or three days that the Parliamentary Secretary has mentioned the word "safeguard" in its application to the individual. He mentioned it now for the first time. It is rather belated, but it is better late than never. The only thing is that in amendment No. 135, paragraph (d), you leave it to the commissioners to decide the time, if an objection is disallowed. The paragraph states:

"Whenever the commissioners disallow an objection, they shall amend the notice to which such objection relates by extending, for such period as they think proper, the period specified in such notice for compliance therewith."

Mr. Smith

The time has been specified already.

Mr. Hughes

Why did you not carry out that? Three months have been specified already.

Mr. Smith

Yes, but you have to provide for the man who has a right to object.

Mr. Hughes

In paragraph (c) you appeal to the commissioners; you lodge an objection and the commissioners consider it. You have the position that the commissioners have decided that the man should carry out the work. It is very unlikely that they will change their minds.

Mr. Smith

He has the right of appeal.

Mr. Hughes

Yes, to an arbitrator — I understand that. What I am worried about is that you may possibly compel an individual to carry out work that should properly be carried out by the commissioners. That is the only danger I see in the operation of the section. I am all for compelling an individual to carry out work that should be carried out by him, but there is the danger that this section may be operated against an individual in relation to work that should be carried out by the commissioners. That is what I do not like about it. However, the amendment otherwise fairly meets the objection and it goes some way to protect the individual.

Mr. Smith

It goes a long way.

Mr. Hughes

Sometimes you may find a situation where, perhaps, an individual is not interested in a drain; it does not affect him; it may be passing along the lower fringe of his farm, and so far as the drainage of his land is concerned it is not affected to any extent by the drain, which is merely a waterway conveying the water from land higher up. In that case it should not be the responsibility of the individual.

Mr. Smith

That is provided for.

Mr. Hughes

I do not think it is. Where is it provided for?

Mr. Smith

Freedom to enter on the land to do the work is provided for. That will be the position if the commissioners think it necessary to have certain work done.

Mr. Hughes

You have provided for someone else to do the work, but you have not stated that it is not his responsibility.

Mr. Smith

There is the position that we may decide that someone else should do it.

Mr. Hughes

You have not made that clear.

Mr. Smith

We have.

Mr. Cogan

I should like to draw attention to Deputy Blowick's amendment.

An Ceann Comhairle

It is cut across by amendment No. 133. If Deputy Blowick thinks it has not been covered by the Ministerial amendment, he can resubmit it on Report.

Mr. Cogan

The Deputy might withdraw the amendment if he were here.

An Ceann Comhairle

He may resubmit it in whatever form he thinks necessary—the same amendment in substance.

Mr. Bennett

When I saw the original section, it rather confused me and I was inclined to move its rejection. I am still more or less of the same opinion. I felt the section was unnecessary and it might have made it incumbent on a small farmer to do work which would be difficult for him to do, work which should be included in the drainage scheme. The Parliamentary Secretary has made some attempt to meet that; he has put it in a less objectionable way.

There is another reason why I objected to the section. I thought that the powers it contained were unnecessary and that there was already machinery available for one landholder to make another do certain things. The Parliamentary Secretary and I were throwing bouquets at each other about our lack of knowledge of the law. I confess I lack a knowledge of the law, but it is within my memory where a tenant farmer proceeded under the ordinary law against another tenant farmer for neglecting to clean his drain, thereby impeding the water supply. He won in ordinary law and compelled the man to clean his drain. For that reason I thought the section was unnecessary. I felt that if it was a big thing it should be included in the drainage scheme, and if it was a small thing the existing law was there to give a landowner power to compel others to clean the drains.

I would have let it pass except for sub-section (2), paragraph (c), which says that if the objector is willing to give a written undertaking that he will allow at all reasonable times any occupier to come and clean his drains, he will be let off. That might somewhat endanger a man's right under the ordinary law. If the ordinary law is as I think it is, and as was ruled in the case I mentioned, I have the power of compelling a man who impedes the flow of water on my land by not draining his to remedy the position. The Parliamentary Secretary puts in a sub-section which gives that man the right, if he gives an undertaking in writing to the commissioners that he will give me permission to do it myself, to be absolved. If I have the right to compel him to do it, why should he get the right, by giving a written guarantee to the commissioners to permit me to do it, to be absolved? You may be taking away a right one person has against another by that particular sub-section. I would like the Parliamentary Secretary to look into the matter before the Report Stage. I should not like to see any landholder debarred from the right he has under the existing law.

Mr. Allen

I am afraid the Parliamentary Secretary's amendment has watered down the section too much. I fear that under the section as it will read now, as Deputy Bennett pointed out, in the case of a man who will not clean up his watercourse there is power given here to let the man upstream come along and clean it. It is unfair to allow that to happen. It would be better to leave the section as it was. I saw no danger in the section as it was. You have individuals in the country who will not do their part in cleaning up the watercourses, and, as a result, lands are damaged. We all know of such cases. Every one of us has a dozen such cases in mind. We have similar individuals under the rural improvement scheme. They will not allow the scheme to be carried out on a certain boreen or lane. We will have similar people under this drainage legislation. They are in existence already. I am afraid that the section has been watered down to such an extent that it will not be effective. It will not have the effect desired. As regards the individual's rights, no individual will be affected, except the crank who will not do his duty by his neighbour.

Mr. Bennett

A farmer will be affected if taken into court.

Mr. Allen

The section as it was originally was quite all right, but under it now the crank will get away with it again.

Mr. Bennett

In common law, you could take him into court.

Mr. Allen

A man does not want to bring his neighbour into court every day and Deputy Bennett knows that. I am not afraid of the individual's rights being affected: it will only affect the crank who is not doing his duty by his neighbour.

Mr. Hughes

I think the Deputy is wrong there. Paragraph (e) of this new sub-section contained in amendment No. 135, deals with a particular type of case—that of a man who has land on a hillside where there happens to be a stream at the foot of his land, along the lower end of his farm. He may not be affected by that drain at all, as it is merely conveying the water from farms higher up. It would be unreasonable to expect that man to pay a lot of attention to that particular stream. This amendment is to permit farmers higher up to go in on that man's land and clean up the stream which is merely passing along the lower end of his farm.

Mr. Allen

It will deal with other cases, too.

Mr. Hughes

Yes, that is why we must be careful with legislation of this kind. The Parliamentary Secretary has said, for the first time in the last two or three days, that he is anxious to protect the individual's rights. I am glad to see that he is alive to that necessity, and I am rather pleased that he saw fit to amend the section. I think it fairly covers the point. I hope he will accept the amendment further on, to the effect that the individual will not be held responsible for a drain that is an arterial drain.

Mr. Bennett

I would like the Minister to look into that case, as I am not satisfied with it. If a tenant has a right already to compel another tenant to do a certain thing, I do not think we should take that right away from him. Deputy Allen and Deputy Hughes know what I mean. In the case of the stream running through three or four farms, if one farmer fails to drain, the work of the others will be destroyed. I am familiar with a case which went to court under the common law. A man refused to clean his drain and the farmer further up, whose land was waterlogged and whose work was useless because the other man would not drain, took him into court and made him do it. I am not a lawyer and cannot say whether the justice who decided the case was right or wrong in law; but, apparently, he had the right to compel the other man to do what he should have done willingly. Sub-section (2) gives that unreasonable man the right to say that, if he writes to the commissioners and gives an undertaking in writing to let the objector do it himself, they will absolve him.

Mr. Hughes

They may do so.

Mr. Smith

Perhaps I could ease the Deputy's mind by saying that, to the extent the law gives the power he desires, those powers will still remain when this Bill becomes an Act. He is right in saying that, in certain cases, the power existed for one farmer to compel another to do certain things; but the unfortunate point is, was, and will be in the future, I suppose, that many farmers do not want to incur displeasure by taking their neighbours into court to establish these rights. That fact is borne out by the Report of the Commission when, in dealing with this problem, it recommended that action should be taken. We are following that recommendation and those of us who know the problem in our own way see the necessity for it.

I disagree with Deputy Allen. It is all right to go just far enough and, when you go far enough to meet a certain difficulty, there is no use in going further. A cranky man has to live, too, and I would not like to go to the extent of heaping injustice upon him, just because he is a cranky man. All we are trying to provide is that his crankiness will not prevent his neighbours getting the relief to which they are entitled. I can see, under the section as it existed—and I did see it, in fact, on the Second Reading—that there was a possibility that he could be called upon, in certain circumstances, to do a job of work which would be altogether unreasonable and which would confer no benefits at all upon himself, while it would bring substantial benefits to his neighbours. I do not want to go that far, but I want to ensure that the neighbours will not be obstructed by him in going in upon his land, or, in the case of the county council or Special Employment Schemes Office, that they will not be prohibited from going in on his land, in order to relieve the obstruction that was causing hardship to the neighbours upstream.

Deputy Bennett may rest assured that, even after we have done this, the law as it stood and to which he referred will be unchanged and the case cited will still be possible, if the necessity arises; and if any farmer is courageous enough to take his neighbour into court, he can still do so without let or hindrance.

Mr. Bennett

That is all I want. I agree with the Parliamentary Secretary that advantage is not taken of the common law and that farmers are reluctant to proceed against one another in the courts. However, if the Parliamentary Secretary assures me that the right is still there, I am satisfied.

Amendment agreed to.

Amendment No. 134 not moved.

Mr. Smith

I move amendment No. 135:—

Before sub-section (2) to insert a new sub-section as follows:—

(2) Whenever a notice under the foregoing sub-section of this section has been served on a person, the following provisions shall apply and have effect, that is to say:—

(a) such person (in this sub-section referred to as the objector) may, within one month after the service of such notice on him, send to the commissioners an objection in writing to such notice;

(b) every such objection shall contain a full statement of the grounds on which the objection is based;

(c) the commissioners shall consider every such objection duly sent to them in accordance with the foregoing paragraphs of this sub-section and shall do, in respect of each such objection, whichever of the following things shall appear to them to be proper having regard to all the circumstances of the case and in particular whether compliance with the notice to which such objection relates would or would not cause undue hardship or expense to the objector, that is to say:—

(i) withdraw the said notice unconditionally, or

(ii) if the objector is willing to give to the commissioners a written undertaking (in a form approved of by the commissioners) that he will at all reasonable times permit any occupier from whose land water passes into the watercourse or any of the watercourses specified in the said notice to enter upon the objector's land and there do, at such occupier's own expense, all such things as may be necessary for compliance with the said notice, withdraw the said notice upon such undertaking being duly given by the objector, or

(iii) disallow such objection;

(d) whenever the commissioners disallow an objection, they shall amend the notice to which such objection relates by extending, for such period as they think proper, the period specified in such notice for compliance therewith;

(e) the commissioners shall as soon as may be inform the objector of their decision on his objection;

(f) whenever the commissioners disallow an objection, the objector may, within 14 days after being informed by the commissioners of their decision on such objection, require in writing the commissioners to refer his objection to an arbitrator appointed by the Reference Committee from the Panel of Drainage Arbitrators, and thereupon the commissioners shall so refer such objection;

(g) the arbitrator to whom an objection is referred under the next preceding paragraph of this sub-section shall have the like powers in regard to such objection as are conferred by this sub-section on the commissioners, and the decision of such arbitrator shall be final and conclusive.

Mr. Hughes

I would like the time to be in.

Mr. Smith

The time will be the same as it was in regard to the original notice. We will allow for the time that will be taken up in the consideration of an appeal.

Mr. Hughes

Would you specifically state that?

Mr. Smith

It is covered.

Mr. Hughes

I do not think it is.

Mr. Smith

Well, if it is not; it will be.

Amendment agreed to.

Mr. Smith

I move amendment No. 136:—

In sub-section (2), to delete all from the word "the" in line 23 to the word "notice" in line 25, and substitute the words "this section on an occupier of land and has not been withdrawn by the commissioners or by the arbitrator and such occupier has failed to comply with such notice".

Amendment agreed to.

Mr. Smith

I move amendment No. 137:—

In sub-section (3), line 33, to delete the words "sub-section (1) of".

Amendment agreed to.

Mr. Smith

I move amendment No. 138:—

In sub-section (3), to insert in line 37 before the word "watercourses" the words "watercourse or" and to insert in line 38 before the word "them" the words "it or".

Amendment agreed to.

Mr. Smith

I move amendment No. 139:—

In sub-section (4), lines 40 and 41, to delete the words "sub-section (1) of".

Amendment agreed to.

Amendment No. 140 not moved.

Section 48, as amended, agreed to.

SECTION 49.

An Ceann Comhairle

Amendment No. 142 should precede amendment No. 141, as it refers to the preceding section.

Mr. Hughes

I move amendment No. 142:—

Before Section 49 to insert a new section as follows:—

Notwithstanding anything contained in the next preceding section of this Act it shall not be the responsibility of an occupier of land to restore, open up or generally put into effective condition or maintain an arterial drain and nothing contained in the said section shall relieve the commissioners or the county council, as the case may be, of such responsibility where a drainage scheme is in course of construction or maintenance under this Act.

This amendment relates to Section 48. I merely put in this safeguard to protect the individual again, so that the commissioners cannot compel him to do work which properly is a responsibility and duty of either the local authority or the commissioners themselves. You can envisage a situation of an individual or group of individuals, where an injustice might be done by the commissioners through the operation of Section 48. Section 48 is a rather dangerous section, but we all agree that it is necessary. I am all for putting in the necessary safeguards. I think that a safeguard of this kind is necessary, and, consequently, I am moving the amendment.

Mr. Smith

This is an attempt to define an arterial drain.

Mr. Hughes

It may be.

Mr. Smith

It cannot be done.

Mr. Hughes

Are we going to leave it absolutely at the mercy of the commissioners?

Mr. Smith

We cannot have it otherwise.

Mr. Hughes

I am not defining an arterial drain, but I do not want to give the commissioners power to compel a man to do arterial drainage.

Mr. Allen

What is an arterial drain?

Mr. Hughes

It is not my job to say that.

Mr. Allen

Why mention it here then?

Mr. Hughes

I did not mention it first. Is it not in the Bill?

Mr. Smith

The amendment says: "Notwithstanding anything contained in the next preceding section of this Act it shall not be the responsibility of an occupier of land to restore, open up or generally put into effective condition or maintain an arterial drain".

Mr. Hughes

If the Parliamentary Secretary will go back to the discussion on Section 4, or some of the earlier sections, he will find that it is provided that the commissioners can carry out a scheme of arterial drainage. That puts the responsibility on the commissioners to do that. I am merely saying in this amendment that it is not the responsibility of an individual to do arterial drainage. I am not concerned as to who defines this. Why was not a definition given in the Bill?

Mr. Smith

Because it cannot be done. There is no need to have any argument about it now. This question was debated very fully earlier on the Committee Stage. I then referred the House to the paragraph in the report of the Drainage Commission which dealt with this matter. The Drainage Commission pointed out that much thought had been given to the matter by engineers and others who were interested, in an effort to define what an arterial drain was. All of them threw up their hands and said that a definition of it was impossible. In their report, the Drainage Commission recommended that the determination of drainage to be included in any scheme would have to be left to the engineers who were charged with the responsibility of designing a scheme. I cannot improve on what was their best effort, nor can I improve on the best efforts of those who, even prior to the setting up of that commission, made similar efforts to solve the same problem.

Mr. Hughes

We are setting up a special drainage authority to carry out arterial drainage. In Section 48 we are giving special powers to that drainage authority to compel an individual, in certain circumstances, to clean up drains. I feel that the individual must be safeguarded, especially when you are giving the use of the instrument that we find developed in Section 48. I want to ensure that the individual will not be compelled to do work that belongs either to the local authority or to the commissioners. I do not think it is necessary to define what an arterial drain is. If the matter is disputed at any time the court will decide it, whether the particular drain in question is the responsibility of the local authority, the commissioners, or the individual, as the case may be. The commissioners will have the duty and the responsibility of carrying out arterial drainage.

Mr. O'Donnell

Is the position this: that we are discussing a subject and do not know the meaning of the actual words we are using? We know what an artery is. What is an arterial drain? Could we have it in Irish? I say that with all respect to the Irish language.

Mr. Bennett

On the Second Reading of the Bill I argued, in the case of a drainage scheme which was being carried out, that it could conceivably happen that a drain or a watercourse which needed repairs had been omitted from the scheme, and that it would be almost impossible for a small farmer to carry out that work if the responsibility were placed on him. The object of the amendment is to prevent such a thing happening. On the other hand, we do not want to go too far and say that if a little drain is left out of the scheme that the farmer concerned should not complete it. But where a watercourse or a drain had been left out, the completion of which would involve heavy expense, it would be unreasonable to ask a farmer to do it.

Mr. Allen

If the amendment were passed, would it not nullify completely the previous and several other sections already passed? Deputy Hughes cannot define what an arterial drain is. One can imagine all the controversy that would be aroused through the country if this amendment were inserted in the Bill. There would be a controversy going on all the time as to what was an arterial drain, what was a watercourse, and so on. You would find farmers calling every drop of water passing through their land an arterial drain. I do not think this is a serious amendment.

Mr. Hughes

If the difficulty with Deputy Allen is the definition of an arterial drain, and if the Parliamentary Secretary is prepared to meet me, I am prepared to meet him by proposing to substitute for arterial drain "any drain properly the responsibility of the commissioners under this Act".

Mr. Smith

Who is to determine whether it is properly their responsibility or not?

Mr. Hughes

The court. That is what it is there for. The commissioners cannot be the final arbiters between an individual and themselves.

Mr. Smith

The Deputy has been fighting for arbitration for the last week, and now when we are giving it to him he wants something else. Deputies have been raising Cain about the fact that we refused arbitration and refused a court of appeal. We provide an arbitrator now and Deputies want something else.

Mr. Hughes

Let the arbitrator decide.

Mr. O'Donnell

An artery is, so to speak, a drain; a watercourse on the surface of the earth is, I suppose, an artery. It is rather confusing discussing arterial drainage when we do not know the meaning of the word "arterial".

Mr. Hughes

What is to prevent the arbitrator making a decision?

Mr. Smith

He is an arbitrator all the same.

Mr. Hughes

Let him make a decision and operate that section.

Mr. Smith

What better court of appeal can you get?

Mr. Hughes

There is nothing to prevent him operating that section in his capacity as arbitrator.

Mr. Smith

There is nothing to prevent the court from doing the same. Is not it the same thing? You want an appeal to a court and there you have an arbitrator.

Mr. Hughes

Leave it to the arbitrator.

Mr. Smith

I think you would be safe in leaving it to the arbitrator.

Mr. Hughes

With that section in?

Mr. Smith

You can leave it to the arbitrator as it is. All the security one could reasonably want is provided in the section. It is not for the sake of opposing you that I take up this attitude, but Deputies should be reasonable.

Mr. Bennett

It will be referred to the arbitrator, of course.

Mr. Smith

Of course it will.

Amendment No. 142 put and negatived.

Mr. Smith

I move amendment No. 141:—

Before Section 49, page 32, to insert a new section as follows:—

49.—(1) Any Minister of State or any council of a county may at any time make to the commissioners a representation (in this section referred to as an originating representation) in writing claiming—

(a) that it is essential for the improvement by drainage of specified land, situate, in the case of a representation by a Minister of State, anywhere in the State or, in the case of a representation by the council of a county, anywhere in that county, either that a specified existing watercourse delineated on a map attached to the representation and not included in any existing drainage works or any drainage works executed or proposed to be executed under this Act be restored, opened up, or generally put into proper repair and effective condition or that a new watercourse be constructed in a position delineated on a map attached to the representation, and

(b) that the money required to meet the cost of the work of restoring, opening up, or generally putting into proper repair and effective condition the existing watercourse mentioned in the representation or of constructing the new watercourse similarly mentioned (as the case may be) has been provided, and

(c) that the execution of the said work is being impeded or prevented solely by reason of the unreasonable withholding by any owner or occupier of land traversed by the existing watercourse or the proposed new watercourse (as the case may be) mentioned in the representation of his consent to the execution of the said work.

(2) Every originating representation shall set out fully the names and postal addresses of all owners or occupiers of land (in this section referred to as the objecting parties) who are stated therein to be unreasonably withholding their consent to the work mentioned in such representation.

(3) As soon as may be after the receipt by the commissioners of an originating representation, the commissioners shall serve personally or by post on every objecting party named in such representation a notice in writing setting out the claims made in such representation and stating that such objecting party may, within one month after the service of such notice on him, send to the commissioners all (if any) such observations as he may think proper to make in regard to the said claims.

(4) The commissioners shall consider every observation sent to them by an objecting party within the time limited in that behalf by the next preceding sub-section of this section and may, if they so think proper in respect of any particular observation, cause an inspection to be made by one of their officers of the land owned or occupied by the objecting party who sent such observation and of the land specified in the originating representation to which such observation relates and of the existing watercourse or the site of the proposed new watercourse (as the case may be) mentioned in such representation.

(5) If none of the objecting parties named in an originating representation sends to the commissioners, within the time limited in that behalf by such representation, any observation in regard to the claims made by such representation or if the commissioners, after considering all such observations sent to them within the said time and considering the report of their officer making such (if any) inspection as aforesaid in respect of such observations or any of them are satisfied that the work mentioned in such representation (with such additions, omissions, and variations (if any) as the commissioners may deem necessary or expedient) are essential for the improvement by drainage of the land specified in such representation, and that the money required to meet the cost of such work (with such additions, omissions, and variations as aforesaid) has been provided, and that no substantial injury or damage will be caused to any objecting party by the execution of such work (with such additions, omissions, and variations as aforesaid), it shall be lawful for the commissioners to make an order (in this section referred to as a compulsory drainage order) authorising the execution of the work mentioned in such representation by or on behalf of the Minister or the council (as the case may be) by whom such representation was made.

(6) As soon as may be after making a compulsory drainage order the commissioners shall—

(a) notify the Minister or the council (as the case may be) who made the originating representation pursuant to which such order was made of the making of such order, and

(b) serve personally or by post on every objecting party named in such originating representation a copy of such order sealed with the seal of the commissioners.

(7) A compulsory drainage order shall operate to empower the Minister or the council (as the case may be) who made the originating representation pursuant to which such order was made to enter by himself or themselves or his or their officers, servants, or agents upon the land specified in such representation (including land owned or occupied by objecting parties named in such representation) and there do by himself or themselves or his or their officers, servants, or agents all such things as may be necessary for the execution of the work mentioned in such order.

(8) No action or other proceeding for damages, compensation, or otherwise shall lie against a Minister of State or the council of a county or any of his or their officers, servants, or agents for or in respect of anything done by him or them or any of them in the execution of work authorised by or the exercise of a power conferred by a compulsory drainage order save only if and so far as it may be shown that such work was not executed or such power was not exercised in a reasonable and workmanlike manner.

(9) Every person who—

(a) wilfully obstructs a Minister of State or the council of a county or any of his or their officers, servants, or agents in the execution of work authorised by or the exercise of a power conferred by a compulsory drainage order, or

(b) pulls down, removes, or injures any work or any part of any work executed or in course of execution under a compulsory drainage order, or

(c) obstructs in any way the flow of water to, through, or from any work executed under a compulsory drainage order,

shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £50 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment, and shall also be liable, in the case of a continuing offence, to a fine not exceeding £5 for every day during which the offence is continued.

Section 48 is somewhat limiting inasmuch as it only refers to drains and streams within a drainage district or entering a drainage district. One can conceive many cases in which the obstruction might exist in a drain that was not in a district or immediately emptying into a district, and it is for the purpose of giving a local authority or a Department of State power to deal with an obstructor in that particular type of case that we propose this new section.

Mr. Hughes

I have not grasped the significance of the new section. I must say the Parliamentary Secretary has not made himself clear on it.

Mr. Smith

I thought I did. In Section 48 we are limited inasmuch as we can only take action against an individual in relation to a stream that is within a drainage district or immediately emptying into a drainage district. The Deputy will realise that there could be small streams that would not contact a drainage district at all and Section 48 would not give us the power in such a case. Therefore, this new Section 49 is necessary and it gives us more or less the same power to proceed against an individual or individuals who would be obstructing any work that might be found necessary.

Mr. Hughes

Work carried on by whom?

Mr. Smith

Take, for instance, a rural improvement scheme or minor employment scheme, where a group of farmers would come together and be prepared to pay a contribution of 25 per cent. in order to have a small drainage scheme carried out and where they would be obstructed. In that case the Department responsible for giving the assistance could make an originating application and proceed to deal with the obstructor as set out.

Mr. Hughes

It is to cover almost exclusively farm improvement or rural improvement schemes—that is what you mean by "moneys already provided from some other source"?

Mr. Smith

Yes.

Mr. Hughes

You do not envisage a local authority being interested, or anything like that?

Mr. Smith

The local authority would be the agent.

Mr. Hughes

For carrying out the work?

Mr. Smith

Yes.

Mr. Hughes

But would not provide the money?

Mr. Smith

No.

Mr. Hughes

That is all right, so. The fines proposed are heavy.

Mr. Roddy

They are heavy for comparatively trivial offences.

Mr. Smith

They are not so trivial.

Mr. Hughes

It is a rather serious penalty for an offence that would not be a serious offence. A man might feel he had legitimate cause for the obstruction.

Mr. Smith

Of course, every man who obstructs does feel that way.

Mr. Hughes

There are the cranks that Deputy Allen talked about.

Mr. Smith

You must have a penalty and that penalty does not seem unreasonable in most cases that I know.

Mr. Hughes

I think it should be reduced.

Mr. Smith

It is not exceeding £50. It need not be that much.

Mr. Hughes

Not exceeding £20 would be enough.

Amendment agreed to.

Amendment No. 143 not moved.

Mr. Keyes

I move amendment No. 144:—

In sub-section (5) to delete paragraph (a), lines 42-44.

I did not move amendment No. 143 although there is an objectionable feature in the section in regard to local authorities, but I consider it not unreasonable that they should have consultation with the commissioners and have plans approved. I move amendment No. 144 because we find in the section—paragraph (a) of sub-section (5)—"if such person is a local authority, such claim shall be referred to the Minister for Local Government and Public Health, whose decision thereon shall be final." Why on earth should the commissioners refuse to public authorities the right to arbitration? Why should the public authority expect to have a dispute between themselves and the commissioners referred to the Minister for Local Government from whom there shall be no appeal?

I think the local authorities are having so much responsibility passed on to them that they should not be deprived of some of the functions of responsibility. If they feel it necessary to construct any such bridge, having done so in consultation with the commissioners and having accepted plans approved by the commissioners, and if eventually there is any alleged default, the claim can only be referred to the Minister for Local Government. Why should local authorities be pilloried in this measure? If that is a criterion of what will happen in future, I think it is a very poor look-out. I see no justification for that clause, and I would ask the Parliamentary Secretary to delete paragraph (a) of sub-section (5) as being perfectly unjustifiable. I do not see any sound grounds for having it in the Bill at all. I move to report progress.

Progress reported, Committee to sit again, to-morrow, Friday, 10th November, 1944.