Amendment No. 31 comes before amendment
No. 30. It is a Ministerial amendment
Vol. 95 No. 9
Amendment No. 31 comes before amendment
No. 30. It is a Ministerial amendment
I move amendment No. 31:—
In page 17, to add at the end of Section 23, the following new subsections:—
(6) Sub-section (4) of Section 23 of the Arterial Drainage Act, 1925 (No. 33 of 1925), shall cease to have effect as respects appointments to committees and joint committees made under that section after the appointed day.
(7) The words "and one at least of the last mentioned two members shall be a drainage ratepayer in the county of that council" in paragraph 2 of the Schedule to the Barrow Drainage Act, 1927 (No. 26 of 1927), shall cease to have effect as respects appointments to the Barrow Drainage Board made after the appointed day.
This is a consequential amendment.
Amendment No. 30, in the name of Deputy Davin, deals with the same matter as No. 61, which is a Ministerial amendment.
I think the Parliamentary Secretary is meeting the point in Deputy Davin's amendment.
I move amendment No. 32:—
In page 17, to delete Section 27 (1), lines 52-54, and substitute the following sub-section:—
(1) Section 19 of the Barrow Drainage Act, 1927 (No. 26 of 1927), as amended by Section 3 of the Barrow Drainage Act, 1933 (No. 30 of 1933), shall cease to have effect in relation to any local financial year beginning after the appointed day.
Will the Parliamentary Secretary say what is the purpose of this amendment?
We are conferring a benefit on the three councils concerned.
Yes, strange to say.
Is this the maintenance rate?
Yes. It enables us to pay our contribution towards the maintenance for the year in which the appointed day will be made; otherwise we may not be legally entitled to do so.
And the Parliamentary Secretary expects that to occur within the next 12 months?
I move amendment No. 33:—
In page 18 to add at the end of Section 27, the following new sub-section:—
(3) Any moneys in the possession of the Barrow Drainage Board on the appointed day or received by them after the appointed day in respect of any period ending before or on the appointed day shall be applied so as to reduce the moneys to be raised for the maintenance expenses in respect of the Barrow Drainage District in any local financial year beginning after the appointed day.
This is also to confer a benefit on the three councils concerned.
I move amendment No. 34:—
In page 19, Section 29 (1), line 11, to delete the words "properly maintained" and substitute therefor the following words "maintained in a condition or state of repair equal to the condition or state of repair in which such works were on the appointed day.
This is an amendment to Section 29, which I feel is rather contradictory of Section 23. The drainage authority would have power to compel the local authority to do maintenance work, if the drainage authority decides that the works are not being properly maintained and that maintenance or repair work is immediately necessary. "Properly maintained" is something different altogether from what is set out in Section 23. I suggest in this amendment that we put in the words:
"maintained in a condition or state of repair equal to the condition or state of repair in which such works were on the appointed day".
I am only asking the Parliamentary Secretary to be consistent in that respect, and to prevent any ambiguity arising owing to the way in which the section is drafted at the present time. I would refer the Parliamentary Secretary to Section 23 (2) (e).
Again I must say that the Deputy has given expression to fears for which there is no justification whatever. At the moment there are a number of districts maintainable by county councils. Even before the introduction of this Bill, the legal obligation on those local bodies was to maintain those districts in a proper condition. Now, they are only being asked to continue to maintain those districts in a proper condition. Deputy Hughes attempts to make the point that immediately on the transfer of those other districts which are in the hands of boards of trustees and drainage boards the protection that is afforded to local authorities under Section 23 will be wiped out by Section 29.
That is not so.
I am contending that that will be the legal interpretation. The Parliamentary Secretary does not know what the legal interpretation is.
I am advised by those who ought to know that the protection that will be afforded to the local authority will be the protection that is afforded to that authority under Section 23. That being so, I do not see why there can be all this talk about the injustices that can be done. No injustices can be done. In respect of districts that are now in the hands of local bodies, the local bodies are legally bound to maintain them in a proper condition and state of repair. In respect of the districts that will be transferred to them on the appointed day, they are being called upon to maintain them in a proper state of repair also, subject to the provisions of Section 23.
Then the Parliamentary Secretary admits that it is quite possible that certain county councils can be compelled to spend money to improve the present condition of drainage works?
I do not admit anything of the kind. I do not admit there is any legal obligation upon them to do so.
What is the objection to my amendment?
It is unnecessary.
The Parliamentary Secretary has not made the position clear to me.
He has made a great case against you, I think.
He has done no such thing. It all depends on the interpretation of the words, "are not being properly maintained".
That is the condition in which they are expected to be maintained now, before the passage of this Bill at all.
Supposing they are not being properly maintained at present, they may be compelled to maintain them to a much higher standard than at present.
They would want to.
Why cannot the Parliamentary Secretary admit that right away? He was not prepared to admit it until I forced it out of him.
What is the use of trying to reconstruct and misrepresent? I say now that before this Bill was introduced there are districts in respect of which the county councils are legally responsible for maintaining them in a proper condition. It is possible, of course, that they have not been discharging their legal obligations. Not only is it possible, but it is a fact that in many cases they have not. What I say is that there is nothing here that seeks to make their obligations greater than they are already in relation to those districts and, to the extent that we will on the appointed day transfer to them further districts, then they will be called upon to maintain these districts in the manner set out in Section 23.
The Parliamentary Secretary resisted the very reasonable amendment proposed by Deputy Broderick which asked that a county council would not be held responsible for damages due to the handing over to them of embankments and drainage works in an unreasonable state of repair. The Parliamentary Secretary defeated that amendment by a majority of the House. Now, we are asked to agree with him in saying that this is an unreasonable proposition by Deputy Hughes. It means the Parliamentary Secretary wants to have it both ways and he is completely overriding the rights of public authorities. Does he want to override the public authorities in the country who are elected to represent the ratepayers? He is a member, or an ex-member, of a drainage board and a member of a county council. Deputy Broderick is one of the most respected members of this House and an authority on the question of local government and his amendment has been turned down by the machinery of the Parliamentary Secretary. Now we find the Parliamentary Secretary arguing against this proposition of Deputy Hughes. It simply means that the Board of Works will hand over to the county councils works in any state of repair they like. We had the notable case of the Mulkear discussed in this House. At the moment the banks are broken and hay and agricultural produce are being swept down into the Shannon. That can be proved by anyone who goes to investigate. But we must take them over, and they must be held to be in a reasonable state of repair and the Board of Works can come along and say to us at any time that we must maintain them in the condition of repair that they consider to be right. Why should not the commissioners have the responsibility of giving us the works in a reasonable state of repair? Surely the law ought to operate equitably and fairly as between a Government Department and a county council. A Government Department has no right to claim a privileged position because it is the Board of Works. I think it is a perfectly fair proposition. Eventually, it is all going to come from the ratepayers' pockets, whether of Limerick, Cavan or Carlow.
We are dealing with a Department, and I regret very much that the Parliamentary Secretary, who made a big study of his job since he came into it, has seen fit to adopt the attitude of carrying on the very worst traditions of the Board of Works. A more reactionary attitude one could not expect from his predecessors than he has taken up on this Bill. How does he reconcile his rejection of Deputy Broderick's amendment and this one? We are told we must accept anything the Board of Works say is right. On the other hand, we will have to satisfy them that we are maintaining these drainage works in a reasonable state of repair. Give us the works in a reasonable state of repair and we will maintain them, but we should not be asked, as a result of the ineptitude of your engineers, to accept the responsibility of getting them into a required condition.
It is "properly maintained," which is even stronger.
I support this amendment and I support it as forcibly as I can. The Parliamentary Secretary all through this Bill has taken up the attitude that the commissioners ought to be supreme in every way. In fact, we are asked to give them more complete powers than I can recollect being given to any body under any Bill introduced since I became a member of the Legislature. As Deputy Hughes and Deputy Keyes have argued, Section 29 cuts right across Section 23. We were given some safeguards for the ratepayers under Section 23. Apparently the Parliamentary Secretary is determined that the ratepayers will have as few rights as possible and that whatever rights they have are to be subject to the commissioners.
It would perhaps be wrong to say that the Minister deliberately cut out any authority representing local boards, but the Bill, as introduced, cut out the Minister for Local Government. There was a necessity to consult that Minister and other Ministers, but when it came to what purported to be completion of a scheme, the certificate of completion could be issued without any reference to that Minister as representing local councils and the ratepayers. Section 29 maintains that the Commissioners of Public Works can, at any time, say to a local council that such and such a river was not being properly maintained, and that they proposed taking charge of it. Deputy Keyes referred to what happened in Limerick. The position there is bad. Deputy Keyes and I argued on the Committee Stage that, as a result, the local councils refused to take over a local river on the grounds that it had not been properly maintained. The contention of the Board of Works has been that work on the river was properly finished when Limerick County Council was asked to take it over. The people of County Limerick were compelled to take over the river notwithstanding the fact that they got a legal decision, and a judge's verdict, in favour of their contention that the work was not completed. Nevertheless, in this Bill, if the Commissioners of Public Works say that the work is completed that decision has to be accepted.
In addition, under Section 29, penalties may be imposed, in defiance of the judge's verdict. I do not know if Deputies realise what the conditions are in County Limerick. A large part of the county is flooded for miles, potatoes and crops have been washed away, and cattle isolated from farms, yet the Board of Works say that work on the river that is responsible for the floods has been completed, and they are compelling the county council to take it over, despite a judge's decision to the contrary. What is going to be the position of the county council in four years' time when the Board of Works has finally passed on everything to the council? Engineers may come down and say that the river is in a bad condition and that if it is not attended to the Board of Works will do so.
I hope they will not come down. They sent down too many people in the past.
The matter will then be referred to the county council, the Board of Works will complete the job and present the bill. Deputy Hughes is making an effort to avoid that position, but no matter what effort he makes the Board of Works will get over it. I am going to back Deputy Hughes and I only wish that we had stronger backers in the interests of the ratepayers.
The Parliamentary Secretary says that by Section 23 a local authority is protected from any action that may be taken by an individual.
Under Section 29 there is not the same protection.
The very same protection.
Where is it?
I have stated more than once during these discussions that the protection afforded to local authorities in relation to districts that will be handed over to them on the appointed day is carried over by this section. I say further that the effect of what Deputy Hughes seeks, if the amendment were accepted, would be to release local authorities from the legal obligation they have now of maintaining districts that have been in their charge for a number of years in a proper state of repair. Is that what the Deputy wants?
We are accepting the position that there is a bad condition of affairs as far as drainage is concerned, but the country has the impression that this arterial drainage work would correct that situation and develop drainage generally, and that local authorities would be bound to maintain such work after it was put into proper condition. I am all for that. Let local authorities be compelled to maintain drainage once the work is in a suitable condition for maintenance, but any improvements should be a State charge. This section compels local authorities to do important work. We were given the impression that any improvement works carried out were to be a State charge. Apparently it is to be no such thing. Once Section 29 operates it means that the drainage authority can compel local authorities to put local works into a proper state of maintenance and if that is not done according to the ideas of the Board of Works they can put them into proper maintenance and send the bill to the local authorities. I want to see maintenance work properly done when local authorities are compelled to take it over. There is no use in trying to blind the public and the House about what is going to occur. Local authorities are going to be compelled to improve works that are not now in a proper condition. I want the work done but I want it to be done as a State charge. That is where I disagree with the Parliamentary Secretary. I have studied the Bill carefully.
The Deputy may have studied the Bill but what he has said it utter nonsense.
The Parliamentary Secretary suggests that there is a liability on county councils for works that have not been properly maintained, and that they are entitled to do the necessary work now. Will he deny that works that were under their control are not in a suitable condition, but have been imposed on the county council in defiance of a High Court decision? These works are not in a sound condition because the banks of a local river are broken and land flooded. The Board of Works was responsible for the work and as they are now handing it over to the county council they should put it into proper condition. If the position was good enough for the Board of Works yesterday it should be good enough for the local authorities to-morrow. Why impose liability for proper maintenance when the Board of Works did not do that? That is a new liability. I am talking of a specific case where the Board of Works failed dismally, and wasted the money of the State as well as Limerick County Council and the ratepayers without making a decent job of the scheme. As the amendment moved by Deputy Hughes is being resisted, local authorities may be told that engineers will be sent down and more expense incurred. There were better engineers available but their advice was not listened to.
And the Board of Works is the only court of appeal.
It is pleaded by the Parliamentary Secretary, in defence of Section 29, that the phrase "properly maintained" is essential in order to ensure that county councils will discharge the functions which at present devolve upon them. It is urged by Deputy Hughes in favour of the amendment that the Board of Works or the commissioners may hand over to a county council for maintenance a drainage scheme which may be in an indifferent condition, and that, subsequently, the Board of Works may send an inspector to look at the works, now under the jurisdiction of the county council, and may say: "That work, in our opinion, is not properly maintained." If the county council does not then conform to the standard of maintenance required by the Board of Works or the commissioners, the board may have the work carried out and send the bill to the county council, and the ratepayers will have the pleasure of paying it.
The amendment seems to me to seek to establish a condition in which, so far as the county council is concerned, its liability properly to maintain a drainage work is that it should maintain it in a condition or state of repair equal to that in which the work was on the appointed day. In other words, it seeks to provide that a drainage scheme for the purpose of the section shall be deemed to be properly maintained, if it is maintained in a condition or state of repair equal to that in which it was when handed over. Is there any difficulty in the Parliamentary Secretary stating, by means of a definition of "properly maintained" in Section 29, that while leaving the existing liability of the county council to have these schemes properly maintained, for the purpose of ascertaining whether the work is properly maintained in the case of a drainage work transferred to a county council, "properly maintained" will be complied with if it is maintained in the condition or state of repair in which it was when handed over? That will ensure, in any case, that a county council will not be obliged to maintain at its expense a drainage work in a better condition or state of repair than the work was in when it was handed over. It gives the Parliamentary Secretary all the safeguards he wants. It continues the present liability of the county council in the phrase "properly maintained" in respect of old drainage works. In respect of new drainage works assigned to the county council, it accepts that "properly maintained" means their maintenance in the condition in which they were when handed over.
We will not transfer any new drainage districts to the county council.
I am not suggesting that you will transfer any new ones. I am speaking of the ones you have transferred.
Let us get a clear idea with regard to what is aimed at. County councils at this moment are responsible according to law for the maintenance of a number of districts created under the 1925 and other Acts. They are legally responsible at this moment for their proper maintenance and the words properly maintained here are the words used in the existing laws. Deputy Hughes asks me in this amendment to do something which would relieve the county councils of the duty of properly maintaining these districts in future. He maintains that he is not asking me to take any retrograde step. He wants districts properly maintained and he wants everything done properly, but, at the same time, he urges me to accept an amendment which will have the effect of relieving local authorities of the duty placed on them by previous Acts. I have made the position quite clear. The position is (1) there is nothing in this section which imposes on local authorities any greater burden than is already on their shoulders in relation to districts which are already in their charge for maintenance purposes, and (2) there is nothing in the section which compels local authorities to maintain districts which will be transferred to them on the appointed day in a condition better than that in which they were on the day of that transfer. I do not think anybody could seek any more.
Will the Parliamentary Secretary say if that means that, in ascertaining whether a drainage work is properly maintained, its condition on the appointed day will be the test applied by the Board of Works?
No, because we have no responsibility for inspecting districts already in their charge. We will only inspect those districts which are at this moment in the charge of trustees or boards, but there are, as I have said, a number of districts already in the hands of local authorities for the proper maintenance of which the local authorities are at this moment legally responsible. We have no occasion to inspect these at all, because they are legally bound to maintain them in a proper state of repair. Deputy Hughes asks me to insert an amendment which would have the effect of relieving these local authorities of the duty of maintaining properly districts constructed under the Act of 1925 and other Acts.
Would the Parliamentary Secretary say in which of the categories he has enumerated the Mulkear and Cappamore scheme falls?
Get the Mulkear scheme off your brain and let us discuss this problem in a broad way.
Is it in the category of not having been in the custody of the county council up to now? I should like to get the definition clear because it is very important for Limerick.
I appreciate that the districts to be transferred are those already in existence and I know that there is a liability on the local authority to maintain them properly; but there have been years of neglect——
Does the Deputy want to relieve the local authority of that legal responsibility?
I say that, where there have been years of neglect and where a certain condition exists, if we propose to carry out national drainage, we ought to do it out of State funds.
I see what the Deputy means now. I took me a long time to grasp it. The Deputy does want to relieve the local authorities of their legal responsibility. He wants these districts properly maintained and he says that, though councils have had that responsibility, they have not discharged it, and he wants to insert an amendment which will relieve them of it now.
The county council ought to shoulder a responsibility which was theirs for maintenance, but the point on which we differ is in relation to a works under construction by the Board of Works, which is handed over to a county council. It cannot be said that the local authority should then be responsible. In the case I am dealing with, it had not been handed over. They purported to hand it over, but it is not handed over until this Bill becomes an Act, and, by the vote of this House, the decision of the High Court upset. It is only then that the county council can be held responsible for the Mulkear and Cappamore drainage scheme. I ask the Parliamentary Secretary specifically whether he will be entitled, under Section 29, to say that the banks are not in a proper state of repair according to his definition and whether we are to be liable for damage to that bank and responsible to the people who will suffer and are suffering? Are we in the category originally mentioned by him or in the second class? Will the Parliamentary Secretary say that the works, as they give them to us on the appointed day, are in a reasonable state of repair and that we must keep them in that state, or are we to be responsible for the condition in which the Board of Works did not put them?
The Parliamentary Secretary is silent.
He is silent because he has no answer to the case made by Deputy Keyes. Once the Bill is passed, the Limerick County Council is put in the position that they are liable for the maintenance, as an existing drainage work, of the Mulkear scheme. The Parliamentary Secretary argues that it is one of the things that does not apply. He said further that there is no added liability put on any council or anybody. I say that the Parliamentary Secretary is not sticking to the facts. The contention of the Limerick County Council was that they would not take over the drainage scheme, but the Parliamentary Secretary upset that. The position of the Limerick County Council at the moment is that the Parliamentary Secretary says: "No matter what judges, engineers or anyone else may say, we say it is a complete scheme. We undertook the job and we finished it. It is in a good and proper condition and is complete and you will take it over". Once the Bill is passed, the Limerick County Council have to take over the scheme when, as Deputy Keyes and I know, and every honest Fianna Fáil Deputy living within 20 miles of Limerick knows the scheme is in anything but a complete condition. We have to assume, according to the Parliamentary Secretary, that everything in connection with the scheme is splendid. The Parliamentary Secretary can hand it over next week after the Bill is passed or can wait for 12 or 15 months until the agitation dies down a bit. The commissioners can then come along and say to the Limerick County Council: "Put that river in a proper state of repair so that it will be a satisfactory job. If you do not do it, we will do it and send you down the bill". Then we will have another tour made by engineers, etc., down to Limerick with plates and 2×4 wires in an attempt to stop up a place where concrete had to be put. They will probably make a job of it and the Limerick County Council will have to foot the bill. I say that the Parliamentary Secretary has not answered us at all. He says that there is no possibility of added liability. I say that that is all bosh and rot and that it is not a fact.
The Parliamentary Secretary was rather inclined to sneer at my stand in this matter. The Parliamentary Secretary has admitted that there has been a good deal of neglect all over the country so far as the maintenance of rivers is concerned. We all know that that is the case. But he ought to bear this in mind, that the provision we are making in this Bill is that the maintenance is to be a county-at-large charge. There is no provision made for raising a capital sum to do any repair work. There is quite a number of existing drainage works in a state of disrepair and a substantial sum will be required to put them into an efficient condition. I submit that that will mean a severe burden on the local authorities. I want to be reasonable about it. I suggest that it ought to be a State responsibility to put them in a proper condition and, once they are in a proper condition, then make the local authorities do their job. The local authorities have not been doing their job. It will all come back on the ratepayers of the county generally. A certain amount of development must be done again owing to the neglect through the years. That is what I am concerned about and only that. I want to see that the local authorities are made to carry out the maintenance work after that.
If the Deputy had made that case originally I would have known where he stood.
That is my case.
That is an entirely different case.
I want to protect the local authorities from being mulcted in costs which may be development costs.
Originally you assured me that you were not inclined to relieve the local authorities of their responsibility. Now, I find that that is exactly what you want to do.
Amendment No. 35 is the same as amendment No. 11, which was agreed to.
That is right.
I move amendment No. 36:—
In page 22, line 20, Section 34 (3), to delete the words "and solely".
Sub-section (3) of Section 34 states:
"Every person who suffers loss or damage by reason of the flooding of land owned or occupied by him shall, where such flooding is due directly and solely to the abandonment of an existing embankment in pursuance of an abandonment Order, be entitled to be paid by the commissioners compensation in respect of such loss or damage."
The purpose of the amendment is to delete the words "and solely" so as to ensure that if loss or damage is suffered by a person from flooding which is directly due to the abandonment of an existing embankment, that person shall be entitled to recover compensation. Under the sub-section he would have to establish that the flooding was caused directly by the abandonment of the embankment, and he would also have the liability of showing that the flooding was caused solely by the abandonment of the embankment. It may happen, for instance, that there will be no doubt whatever that the flooding or damage was caused directly by the abandonment of the existing embankment, but the loss may not be caused solely by the abandonment of the embankment; some other contributing factor may be present.
If 90 per cent. of the flooding is caused by the abandonment of an embankment, but 10 per cent. of the damage is caused by some other factor than direct abandonment of the embankment, then the person presumably will not be entitled to compensation. I think it ought to be sufficient for the purpose of equity if the Parliamentary Secretary will provide that, where it can be shown that the loss is due directly to the abandonment of the existing embankment, the compensation will be payable and the person should not have to prove that it was due solely to the abandonment of the embankment.
It would be extremely difficult in most cases to establish a claim for compensation owing to the tight manner in which this sub-section is drawn. I suggest that the inclusion of those two words in the manner set out in the sub-section is calculated to give rise to endless litigation, and it will cause considerable strife between the persons affected and the boards if it has to be shown that the cause of the damage was directly and solely due to the abandonment of the embankment. The Parliamentary Secretary might reasonably be satisfied with the word "directly" and delete the word "solely".
You must remember that the landowners concerned would not, at the moment, be entitled to any compensation in the event of a breach in one of those embankments.
Section 3 is a long way of saying just what you are after saying now.
Is it right to make a provision here for payment of generous compensation in a case in which there is no existing liability to pay any compensation?
I should like to ascertain from the Parliamentary Secretary what exactly a person has to prove under this sub-section. What will be the position if the flooding is due directly but not solely or solely but not directly to the abandonment of an existing embankment?
I found some difficulty in getting that matter straightened out in my own mind.
Imagine the position of a small farmer down the country who is not a Parliamentary Secretary.
In the case of an embankment erected for the protection of land which does not succeed in protecting that land, the landowner has no right to compensation at present. If we take over that embankment, I do not think it would be wise to make the obtaining of compensation too easy.
If a landowner suffers damage or loss by reason of flooding caused by abandonment of an existing embankment, surely nobody would suggest that he should foot the bill himself. If we damage John Murphy's land by abandonment, we should pay John Murphy some compensation. To ask John to prove that the flooding or loss was caused "directly and solely" by the abandonment of an existing embankment is setting him an impossible task. I do not know what he would have to prove. The Parliamentary Secretary admitted that he himself had difficulty in finding out what these words "directly and solely" meant. The word "solely" should be deleted. Even if it is necessary to arrange for an amendment in the Seanad, I think the Parliamentary Secretary should consider those words "directly and solely" so as not to set the landowner an impossible task.
I think the Parliamentary Secretary should meet the Deputy. Suppose an embankment is abandoned and there is negligence so far as the maintenance of the river is concerned. That would be contributory to the flooding, but if the flooding is not "directly and solely" due to abandonment of the embankment—and it is not in this case, because negligence in respect of the river has contributed to it—the landowner will be ousted from compensation. It should be sufficient to prove that the damage is "directly" due to abandonment.
I am prepared to accept the amendment, but with some hesitancy. I find a tendency, when work of this nature is being undertaken, to confer enormous rights of compensation which did not operate in the past on persons who heretofore have been exposed to dangers and risks of all kinds. If damage were to occur at present they could not get any compensation. When the State is undertaking extensive works which will result in the improvement of the general condition it is not right to confer upon people rights of compensation which would not in the ordinary way be payable to them. That is the only reason why I say that it is with some hesitancy I agree to the amendment.
You are going to pinch off the compensation under sub-section (5).
The Parliamentary Secretary should remember that, while this might be a very small matter for the Drainage Commission, it might be a big matter for the individual concerned.
I move amendment No. 38:—
In page 22, to delete Section 34 (5), lines 33 to 43.
This sub-section is designed to ensure that, even when compensation is awarded for flooded land, the amount may be claimed by and, if claimed, must be paid to the Land Commission in respect of the redemption of the annuity or other charge on the portion of the land affected, so that the person whose lands are flooded may get no compensation whatever. It seems to me that the commissioners ought not to take upon themselves the right to decide a matter of that kind. It seems to be needless vigilance on the part of the commissioners to get after the man who obtains some small compensation for flooded land and say: "We are going to collar that compensation because we do not trust you to continue to pay your annuities regularly on the entire land, not merely the land you had but the land affected by this flooding."
We are only proposing to redeem in respect of the land for which he has received compensation. Is not that reasonable?
No. Here we have a man who has paid his annuities regularly on the gale day, a good, credit-worthy citizen. There is no question of his defaulting in his payments to the Land Commission. His land is affected and he gets compensation, whereupon the commissioners come along and say: "We do not trust you to continue to pay your annuities with the same promptitude and regularity as previously. Lest you indulge in riotous or irresponsible conduct, we are going to look after your financial interests and collar portion of the compensation awarded you to redeem the annuity on the flooded land." I think you might let the fellow away with whatever compensation he gets. If he has been paying an annuity of £30 for 30 years, what is the use of collaring the small sum in compensation which would be applicable to the redemption of the flooded land? It might only reduce his annuity by 5/-. Is it not as well to let him carry on with the annuity on the former scale, instead of making a petty adjustment by redemption of the annuity on the flooded portion of the land?
It seems to me to be hardly worth the clerical work involved in making the adjustment, particularly when the person concerned is a credit-worthy citizen in respect of whom there is no doubt whatever about a default. I imagine that there was a Shylock mentality brought to bear on the drawing of this section. It is quite clear that if anybody managed to get compensation from the Board of Works he would have a job to get away with it by the time the Board of Works had exhausted every Machiavellian device to get the compensation back from him.
That is an extraordinary case for the Deputy to make. For example, I have 20 acres of land. The State advances a sum of money for its purchase. Five acres of it are flooded, and in respect of these five acres I get compensation. The Deputy's contention is that the State is not entitled to deduct from the compensation I get the portion of the advance in respect of those five acres, and that the existing balance of the advance is to be thrown against the 15 acres, thereby allowing me to get off, so far as the five acres are concerned, with the money that the State advanced for their purchase. That is what the Deputy said.
No. Suppose I have 80 acres of land and that one acre of it is flooded. I am paying an annuity of £40. I get compensation for the one acre of flooded land. The Land Commission come along and say that I have to hand over compensation in redemption of that one acre of flooded land. Let us say that the annuity on it would be £1 a year. That is the redemption value. I have been paying the £40 a year regularly in respect of the 80 acres. Why would not the Parliamentary Secretary trust me to continue to pay it regularly even though one of the 80 acres is flooded? What is the purpose of ramming your hand into my pocket and saying that you will not trust me to pay the full annuity? I accepted responsibility, in the form of an annuity, for the ultimate redemption of every halfpenny advanced under the Land Purchase Acts.
That is the practice that has always been followed. Let us take another example. If the Deputy had a farm of land and proposed to sell five acres of it for some purpose, so far as I know the practice of the Land Commission is this: that if he applies for permission to subdivide his holding and sell portion of it he will get that permission on undertaking to redeem the portion of the advance in respect of the five acres he is selling. If the Land Commission insists in doing that in relation to a transaction of that kind, is it unreasonable, when the State pays compensation to him in respect of flooded land, that it should deduct from his compensation the amount of the advance that is outstanding in respect of the flooded land? I think that is a most reasonable attitude for the State to take.
If I sold the five acres to the Parliamentary Secretary I could transfer the annuity to him.
That is not the practice of the Land Commission as far as I know.
They do it in some cases.
The Deputy must be very fortunate in his dealings with the Land Commission. I never found it in such generous mood.
I move amendment No. 39:—
In page 22, Section 35, line 64, and in page 23, lines 13 and 23, to insert before the word "apportion" the words "and having given such parties an opportunity of being heard".
This is to meet a point that was raised by Deputy Hughes in Committee.
I move amendment No. 40:—
In page 23, Section 35, line 69, to add at the end of paragraph (g) the words "so far as such trust or duty relates to the residue of the existing embankment".
I move amendment No. 41:—
In page 25, Section 37 (1) (a) to delete all words after the word "condition" in line 14, to the end of the paragraph, line 18.
The section generally provides that the commissioners shall maintain drainage works in proper repair and effective condition, but when the words after "addition" are added, the effect is that the commissioners are not obliged to maintain the drainage works in a better condition or state of repair than they were in on the date of the maintenance transfer Order. The Parliamentary Secretary's answer to that may be that the commissioners could not maintain the drainage works in a proper state of repair and effective condition and that the highest degree of efficiency would be their test, and that the condition in the latter portion of (1) (a) is for the purpose of ensuring that the commissioners cannot be sued to maintain the works in a better state of repair than the state in which they were on the date of the transfer maintenance Order. I would like to have some indication from the Parliamentary Secretary as to what the purpose was in inserting the latter portion of (1) (a).
It is there, of course, for protective purposes.
Does the Parliamentary Secretary consider it is necessary?
In view of the discussion was had on a previous amendment by Deputy Hughes on which we had a division, if the local authority is entitled to the protection we are providing for it in Section 23, then, surely the drainage authority is entitled to a similar protection.
On behalf of Deputy Hughes, I move amendment No. 42:—
In page 25, Section 37 (1), (a) line 16, before the word "to" to insert the following words "prior to the issue of certificate of completion".
The amendment simply means that prior to the issue of the certificate there will be no liability on the commissioners, but that after the issue of the certificate the commissioners will be liable for the maintenance of the works in a proper condition.
We have examined this matter. When it was raised on the Committee Stage I promised to examine some of the fears and doubts that Deputy Hughes then gave expression to. I find there is no need for such fears or doubts.
Why does the Parliamentary Secretary say that?
These words in this section do not apply to new districts at all, but to existing drainage districts.
I think that is the information Deputy Hughes wanted to elicit.
I move amendment No. 43:—
In page 25, Section 37 (1), to delete in lines 26 and 31 the word "are" and substitute the word "were" and to delete in lines 27 and 32 the word "certificate" and substitute the word "inspection".
It is only a drafting amendment.
It is more than that, it is more important. Its effect is to prevent the drainage authority giving a retrospective certificate to put a scheme in order. Under the section at present, a person could take an action against the commissioners on the 1st November, have the case heard on the 15th November, and the board on the 14th December might come along with a certificate saying that the drainage work was satisfactory and that would be irrebuttable evidence, even though the certificate had been issued on an inspection made 12 months earlier.
I move amendment No. 44:—
In page 25, Section 37 (1) (c), line 47, to insert before the word "Final" the words "Award or".
This is a drafting amendment.
I move amendment No. 45:—
In page 27, Section 37 (3) (a), before the word "employed" in line 14 to insert the word "wholly".
This paragraph (a) provides that certain expenses are payable to the commissioners in respect of maintenance on drainage works. Those expenses are "the remuneration and other expenses of all officers and servants of the commissioners employed in the maintenance of the said drainage works while they are so employed." The purpose of the amendment is to ensure that the local authority will not be charged with the full salary of a Board of Works inspector or engineer engaged on maintenance, unless he is engaged in the work as a full time officer. As the paragraph stands, it would appear that a charge could be debited against a local authority for the full salary of an official, even though he might be employed only for one day per week in the maintenance of the scheme.
I want to ensure that, if the full salary is to be charged, he should be employed whole-time on the drainage work. If the inspector or engineer looks at the drainage once a month or once a week, the county council should not be compelled to pay in respect of a month's work. The Parliamentary Secretary might clarify the matter by indicating what is meant by the "remuneration and expenses" of officers employed on drainage work. Is it intended to recover only such portion of salary as the county council would be liable for in respect of their employment for a limited period per week or per month on the scheme?
Local authorities will be responsible for repayment of the remuneration of the officials employed on maintenance work. A man might be employed on one district for one day per week or one day in the month or might be employed on a number of districts which would be the responsibility of different local authorities. The intention is that each local authority should be responsible for the portion of the remuneration represented by the amount of time and work the man put in in that district.
And no more?
And no more.
I move amendment No. 46:—
In page 27, Section 37 (3) (b), before the word "incurred" in line 17, to insert the word "reasonably".
The paragraph in the Bill proposes to debit the county council with expenses of every kind incurred by the commissioners in connection with the maintenance of a drainage work. I suggest that there should be some protection for the local authority, which should be charged only with the expenses reasonably incurred by the commissioners. As it stands at the moment, the local authority will have to pay on foot of a demand by the commissioners, whether the council consider the demand reasonable or unreasonable. I want to insert the word "reasonably", so that at least the county council will be able to argue that it is not bound to pay every charge made against it but only such charges as are reasonable, in its opinion, or one deemed to be reasonable as a result of arbitration.
I am afraid I could not accept this amendment. After all, the drainage authority would have no purpose to serve in making unreasonable demands upon the local authority. Therefore, why should we insert a word that may give rise to a good deal of friction?
Expenses "reasonably incurred" is not an unfamiliar phrase in legislation.
I know, but one can see the amount of squabbling there might be about a work of that kind in relation to this particular matter. The drainage authority would not seek to do more than was necessary for the purpose of seeing that the maintenance work was done properly, and I do not think one could go any further than that.
Some of the Limerick people scarcely accept that statement, certainly not literally.
I am not complaining about the local authority having to pay.
If you make it possible, everybody would try to dispute it and there would be many awkward situations.
There was a pretty hefty din over the Barrow drainage charges, which the Board of Works thought were reasonable.
Which everybody else thought too. Everybody affected would be glad to get rid of any charge imposed on them.
They were being asked to pay for a white elephant which went for a swim down there.
I move amendment No. 48:—
In page 28, line 27, Section 41, to insert before the words "the conclusiveness" the words "the sending of copies of an Award to councils of counties,".
This is a consequential amendment.
I move amendment No. 49:—
In page 28, Section 42 (1), lines 32 to 36, to delete the words and brackets "(in this section referred to as the Reference Committee) constituted by paragraph (c) of sub-section (5) of Section 1 of the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by the Acquisition of Land (Reference Committee) Act, 1925 (No. 22 of 1925)".
I move amendment No. 51:—
In page 28, Section 42 (2), line 47, to delete the word "three" and substitute the word "five".
I move amendment No. 52:—
In page 29, Section 42 (2), to delete in lines 12 and 14 the word "Minister" and substitute the words "Reference Committee".
I move amendment No. 53:—
In page 29, Section 42 (2), at the end of paragraph (f), line 20, to add 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."
I gave an assurance on the Committee Stage with regard to this matter.
Yes, I thought that that was the position, but I put down this amendment in order to have the matter clarified. However, if the Parliamentary Secretary says that the intention is to fulfil what I am putting forward in this amendment, then I am quite satisfied. If the Parliamentary Secretary says that the section is designed to implement what I intended to do under this amendment, I am quite satisfied.
Well, no. What I did say was that the panel of arbitrators will be composed of men of different qualifications, but the Deputy is seeking to have a uniform scale of pay provided for all of them. That would not be proper, and I am sure that the Deputy would agree with me. The assurance that I did give was that they would be paid according to their professions and standing.
Is it a fact that there is an established practice in regard to that matter?
Yes, that is so.
Very well, then; I am satisfied.
I move amendment No. 54:—
In page 30, Section 43, 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.
No, I could not accept this amendment, but I should like to say that I pointed out on the Committee Stage of the Bill that it was the usual practice to insert a fair-wages clause in all such contracts.
Yes, I am quite aware of that fact, but I want to ensure that when it comes to a matter of sub-letting, let us say, building or engineering contracts, to private firms, by the Board of Works, the sub-letting will not be used to get, over the payment of trade union rates of wages, that the person or firm concerned will be bound to pay these trade union rates of wages, and that the Board of Works will also have to do the same. I take it, however, that the fair wages clause will obtain here also?
That has always been the case, and it still will be.
I move amendment No. 55:—
In page 31, Section 46 (5), line 28, to delete the word "Minister" and substitute the words "Reference Committee".
I move amendment No. 56:—
In page 35, line 29, Section 50 (i), to delete the words "No local authority".
This section forbids a local authority or any industrial concern constructing, altering, reconstructing or restoring any existing bridge over any watercourse without the consent of the commissioners or otherwise than in accordance with plans previously approved by the commissioners. In other words, a local authority has to get the prior sanction of the Board of Works before they can go ahead with the repair or reconstruction of a bridge over a watercourse. Surely, a local authority is in a different position from a private individual or firm, and surely that authority should not have to wait for sanction from the Board of Works before doing essential repairs to a bridge, in a case of real emergency?
We could not accept this amendment. First of all, I think the Deputy can easily visualise cases where a bridge might be erected by a local authority, let us say, this year, and where, although it might be all right for their purposes at the moment, it might not be all right for our purposes so far as future drainage is concerned. Would it not be better in such a case for the local authority to wait until they hear from us?
I am only concerned with the matter of whether the local authority can go ahead with essential work without having to wait for sanction from the Board of Works. It may be a case of work that has to be done immediately—essential work—but in the meantime, it would appear that the local authority has to be put to the trouble of waiting for sanction from the Local Government Department before they can go ahead with the work.
It is not really correct to say that they have to wait for sanction in such cases. What I mean is that the county surveyor concerned might have, let us say, a road scheme to discuss with the Department of Local Government—a general scheme involving the whole county, which might involve the building of a dozen or two dozen bridges. In such a case it would be necessary to seek the sanction of the Department before going ahead with the scheme, but the county surveyor would not have to seek the sanction of the Department in a single case such as, I think, the Deputy has in mind.
I am not really referring to that kind of thing. The type of case to which the Parliamentary Secretary has referred is all right, where roads and bridges have to be constructed over a whole county. That is not the type of case which I have in mind. What I have in mind is the case of a bridge which is damaged, and where there is immediate necessity for repairing it. My suggestion is that in a case of emergency such as that, it should not be necessary for the local authority to wait for sanction from the Department before going ahead with the work, because that might mean that that very necessary work might be held up for a long time.
The local authority in such a case would not really be held up because, if it were a really urgent matter, the local authority would get the necessary priorities to have the thing done immediately. I should like to say this, however: I am sure that most Deputies here must have come across cases where everything seemed to be all right in regard to the building or reconstructing of a county bridge, but where it was afterwards found that the foundations of the bridge were not sufficiently deep, and very often large drainage schemes were held up until proper foundations and proper under-pinning of the bridge could take place. I think that the section here provides against such an occurrence, and, after all, the local authority is the most important authority to be included here.
My concern in moving the amendment is to ensure the expeditious carrying out of such work.
Yes, and I can quite conceive that in the case of the sudden collapse of a bridge, it might be necessary, but I do not think it would be safe to allow a local authority to erect or recondition bridges without having regard to what the drainage authority might have in mind with regard to the whole area concerned.
I take it that this section has to do with all bridges or other crossings concerned with watercourses in the country?
Yes, I think so.
Even a culvert?
Yes, I think so.
I move amendment No. 57:—
In page 36, Section 50 (5), line 22, to delete the word "Minister" and substitute the words "Reference Committee".
I move amendment No. 59:—
In page 38, before Section 55 (3), to insert a new sub-section as follows:—
(3) Sub-section (2) of Section 5 of the Fergus Act shall have effect as if it enabled, in case the works specified in Clause F of paragraph 2 of the Scheduled Consent have been completed before the completion of the works specified in Clause D of that paragraph, a separate certificate of completion to be given in accordance with the said sub-section in respect of the works specified in the said Clause F and a separate certificate of completion to be given (whether by the same or a different engineer) in accordance with the said sub-section at a subsequent date in respect of the works specified in the said Clause D, and each certificate given by virtue of this sub-section shall be conclusive evidence for all purposes of the completion of the works specified therein in accordance with the Scheduled Consent.
The section of the Fergus Act provided for the issue of a certificate of completion in relation to the works proposed. We find now that it will not be possible, because of inability to obtain a number of sluices and for some other reasons, to complete the entire works. The works have been divided into two sections, F. and D. I understand the F. works have been completed entirely. We are anxious to issue the necessary certificate in relation to these F. works. It is for the purpose of enabling us to do that, that the amendment is being inserted.
I move amendment No. 60:—
In page 40, Section 57 (8), lines 56 and 57, to delete the words and brackets "(including modifications of the provisions of this Act)".
I do not know exactly what the Minister intends to do by the use of the powers expressed in the parentheses in this sub-section—"(including modifications of the provisions of this Act)". It seems to me that this sub-section gives us delegated legislation with a vengeance. The section appears to authorise the confirmation of any agreement made under this section and gives the Minister power "to make such provisions (including modifications of the provisions of this Act) as appear to him to be necessary in connection with or in consequence of such agreements."
But only in regard to the maintenance of the district as it stands now.
Will the Minister give us an example of what is effected by giving him the powers expressed in the words in brackets?
There is joint responsibility for the maintenance of a district which extends into the Six County area. This power is being sought only in reference to the maintenance work that has to be done there. If we find it convenient, necessary or possible, to enter into an agreement with, say the County Council of Fermanagh, to provide for maintenance work on the Erne, we feel that we should be entitled to do that without coming here to have new legislation introduced. It does not affect any new work or new proposal. It merely covers the cost of carrying out maintenance work.
I take it, therefore, that the provisions referred to there are routine provisions to make the agreement effective?
That is all.
I move amendment No. 61:—
In page 43, Second Schedule, to insert before paragraph 3 the following paragraph:—
3. The transferee council or councils of a dissolved body may, in their discretion but subject to the consent of the Minister for Local Government and Public Health, award to any person who, immediately before the appointed day, held any office under such dissolved body an ex gratia payment which shall be regarded as a liability of such dissolved body and the amount of which—
(a) shall not exceed whichever of the following sums is the less:
(i) one-fourth of the annual remuneration (exclusive of any allowance for expenses) payable immediately before the appointed day to such person by such dissolved body multiplied by the number of his completed years of service with such dissolved body,
(ii) twice the annual remuneration (exclusive of any allowance for expenses) payable immediately before the appointed day to such person by such dissolved body, and
(b) shall, subject to the foregoing limitation, be determined with due regard to the following matters:
(i) the terms and conditions of the employment of such person by such dissolved body,
(ii) the nature and duration of such employment and the manner in which such person discharged the duties thereof,
(iii) the probability (if any) that such person would have been continued in such employment for a longer period if this Act had not been passed,
(iv) any other circumstances affecting the case.
This is the compensation amendment. I was pressed here to provide compensation, and I must say again that I was not too happy about the whole business. However, this is the form it has taken.
I understand that amendment No. 63 in my name has been ruled out of order.
In Section 23 (2) (c) and in Section 37 (1) (c) we have inserted the words "Award or" before the word "Final". These were merely drafting amendments. We overlooked making a similar change in paragraph 8 (c) of the Second Schedule. Perhaps the House would agree now to accept an amendment as follows:—
In page 44, line 21, Second Schedule to insert the words "Award or" before the word "final".