Vol. 171 No. 10
I move amendment No. 1:—
In page 4, line 6, to delete ", as extended by this Act,".
This is a drafting amendment. It is necessary because an amendment which I had on the Order Paper for the Committee Stage was not regarded by the Ceann Comhairle as in order.
I am prepared to agree to recommit the Bill in respect of amendment No. 2.
I move amendment No. 2:—
In page 4, to delete Section 7, lines 19 to 28, inclusive, and substitute:—
7.—Where the submerging of Fitzgibbon Bridge (otherwise known as Dripsey Bridge) situate on the River Dripsey in the County of Cork has caused or will cause loss or inconvenience to any person who, at the commencement of this Act, is the owner or occupier of land situate in the townland of Cronody or townland of Fergus, both in the County of Cork, the board shall pay to that person compensation in respect of the loss or inconvenience aforesaid of such amount as shall be agreed upon with such person; or failing such agreement shall be awarded by an independent arbitrator.
In moving this amendment, I think it fair and proper to draw particular attention to the necessity for ordinary protection for the people concerned. Under Section 7, which we are hoping to have amended, there is no such protection for them. It is giving to the E.S.B. powers which would mean the automatic cutting-out of any advantages or fair play these people would hope for. At this stage, I do not see the necessity to dwell at length on this amendment which is clear-cut and explains the position.
The Deputy misunderstands the position to some extent. Under the law as it stands, there is no provision to enable the E.S.B. to pay compensation to any person who claims to have been inconvenienced or made suffer a loss by reason of the closing of a public road or a public bridge. The purpose of the section which I have inserted in this Bill is to enable the E.S.B. to pay compensation in such a case. They had no power to pay compensation in such a case heretofore.
The position that arose in connection with this bridge over the Lee, which was removed in the process of the scheme, was that the board were obliged by the Order sanctioning the scheme to build a bridge. They reported that the technical problem was such that the cost of the bridge would be very high. They therefore asked to be released from the obligation of rebuilding the bridge.
I was not prepared, nor was my predecessor, to release them from that obligation. I said it seemed to me, from certain information I had obtained, that there was a great deal of local misunderstanding about the amounts of compensation that the board would pay, if they were empowered to do it, in consideration of not building the bridge and that, if they made it known to the landowners concerned that compensation on quite a generous scale was in mind, it was possible they would get agreement amongst these landowners to accept compensation and agree that the bridge should not be built. I said to them that if they got the substantial majority of the landowners concerned to agree to accept compensation I would amend the Order releasing them from the obligation to build the bridge.
Eventually, they came back and announced to me that, of the 14 or 15 landowners concerned, by far the largest number were quite willing and had agreed to accept the compensation they offered. In these circumstances, I am now putting the board in the position to pay that compensation. There are four or five others with whom agreement has not yet been made. Two of them, I understand, are willing to agree to the acceptance of compensation but the amounts have not yet been finally negotiated with them. Three have not yet agreed. In one of these cases it is, I think, very questionable whether any right of compensation arises at all.
It is now suggested that we should at this stage, provide for arbitration to deal with these residual cases and presumably reopen the question of the amount of compensation in all the other cases where agreement has been made. I could quite reasonably have said to the board: "Instead of building the bridge, you will pay compensation to be determined by an arbitrator." However, I am quite certain that any arbitrator working under any reasonable terms of reference that might be given him would, in fact, give a very great deal less to the landowners than they are receiving.
One of the troubles in this matter is that there is no conception of the terms of reference that could be given to an arbitrator. In his amendment, the Deputy uses the words "shall be awarded by an independent arbitrator". There is no law on our Statute Book which settles the terms of reference for an arbitrator who has to calculate the loss suffered by reason of the closing of a public road. There are terms of reference where land is compulsorily acquired or other interference with property occurs but in this particular case it is a public bridge that has been closed and there are no terms of reference for any arbitrator under any Act. No arbitrator would undertake this job without having some rules to guide him, some principles laid down by which to determine the compensation in each case.
I, therefore, would not agree that this is a case for arbitration. It is a case for agreement. Everybody there knows now that the amounts of money which the board are willing to pay are quite substantial. In nearly every case, I think they exceed the market value of the holdings concerned. Indded, many people in that area are about to be in possession of sums of money far larger, I am sure, than they ever conceived it was likely they would own.
My view about the whole business was that it would cost a great deal of money to build the bridge which would be used only by a very limited number of people on limited occasions and that it was a far better idea to give that money to the people rather than to put it, into a construction of that kind. Therefore, I would suggest to the Deputy that he should not press the amendment. The board is being empowered to pay this money. They cannot pay it yet. The Bill must be passed before they can pay it. They should have litle difficulty whatever in coming to terms with the remaining cases and paying them reasonable sums which will be very adequate compensation for any inconvenience they may suffer.
I appreciate that the former Minister refused to release the board from their obligation. They had a very serious obligation to these people affected by the submerging of Fitzgibbon Bridge. I appreciate what the Minister said. When it comes to arbitration, those who stood out against arbitration may now be penalised. There is no power whereby the board can deal with this matter.
Personally, I think the bridge should have been replaced. Any amount of compensation will not pay these people for the inconvenience they must suffer for generations to come. Some of them live in close proximity to the bridge. They are much more adversely affected than those at a greater distance. Personally, I think there was some shady practice about this whole business. The board went around telling those people they would be compensated. Had they any legal right to say that? What was their motive? I doubt if any arbitration settlement will iron out the whole thorny problem as it exists to-day.
I do not come in here as a champion of those people who are objecting to compensation. I have come in here to have the whole matter thrashed out. The Minister— and I do not want to twist his words —said that these people were being treated very generously. I am not asking for special treatment for anyone. All I am asking is that in this case the facts be considered in a proper light, completely divorced from what has happened in the past in relation to some of them.
On the Committee Stage, the Minister stated that 13 out of 16 landowners agreed to compensation. Let me inform the Minister that that is not correct. In proof of that, I can give the figures submitted by the E.S.B. themselves. The number of people affected, according to the E.S.B. returns, in the townland of Cronody— the main townland where the people are really affected—is nine. In the townland of Fergus where they are affected to a much lesser degree, the number is three. Therefore, instead of 16 landowners being affected, the actual number, according to the E.S.B. returns, is 12. In the townland of Cronody, where they are much more severely affected, of the nine landowners, five objected to compensation and insisted upon the replacement of the bridge. It also appears, as can be seen from the E.S.B. returns, that of the nine landowners in that, townland, the five who objected happen to be the five landowners with the greatest amount of land. Therefore, from that aspect alone, the people concerned in the area most severely affected are those who are not in favour of compensation. They ask that the bridge be replaced.
In view of the Minister's statement that they are being very generously treated, I should like to ask upon what basis the E.S.B. are making their offers in relation to this compensation. The E.S.B. in their defence against these people have put forward the argument that it would cost approximately £250,000 to provide a new bridge, whereas, in actual fact, expert evidence presented by one of the most highly qualified professional men on behalf of the farmers, shows that the actual cost of the replacement, and so on, would work out at roughly £100,000. The E.S.B. in their defence try to put up the argument that, as it would cost so much to replace the bridge, it would be better if compensation were accepted. What is the compensation based on?
I do not for one moment ask that these people should get more compensation than they are justly entitled to. We cannot, therefore, understand upon what it is based. The Minister is satisfied with the negotiations that have already been carried out by the E.S.B. representatives in relation to compensation. It is quite obvious that the Minister admits now that the offer for compensation was made before this Bill was introduced in this House. Therefore, this is not the case of a new departure. In effect, it is being said to the E.S.B. that the offers already made at a time when there was no legal power to do so are now being legalised through an Act of Parliament. In other words, the offers which were illegally made will be legalised.
Can we stand for that? Why is it that the Minister made no reference to the fact that the E.S.B. have been doing that which they were not entitled to do? I would certainly support most strongly the view expressed by a colleague of mine from South Cork, Deputy Manley, when he said that strange things happened in relation to the offers of compensation to different individuals, the playing off of one against the other and the threats indirect and, at times, direct, issued to people.
It is quite obvious that if the section being provided here by the Minister is to operate the E.S.B. will decide whether or not serious damage has been caused. In view of the fact that, in one townland, five landowners have stood out against them and refused compensation, what protection is in this section for these individuals? Unless serious damage is admitted by the E.S.B. then they are out of court straight away.
The Minister is apparently still prepared to say that if the E.S.B. should become over-generous and decide there is a certain amount of serious inconvenience or damage caused the E.S.B. can decide compensation. Again, may I ask upon what basis? Why is it that the board's representatives can go to one person on their own initiative, with no one to hinder them, decide that the landowner stands to suffer a certain amount and assess the amount themselves? They may go to another man, a man who agitated for the replacement of the bridge, and they may tell him they will give him £10. There is nothing in this section to prevent their doing that. In my opinion it would be far better not to legislate at all rather than bring in a section like this, a section which gives such arbitrary powers to the E.S.B. Remember, these powers can be abused.
In one particular instance a small bridge has been erected to accommodate one individual. If this section is enacted, there is nothing to prevent the E.S.B. compensating this man still further on the ground that he is suffering a certain amount of inconvenience not completely covered by the bridge they have provided. Nobody can dispute that that position may arise.
The Minister made his case and now, I think, the other side must be considered. In March of 1956, or 1957, the former Minister for Industry and Commerce, Deputy Norton, inspected this area. A good deal of surprise was occasioned by his visit to the townland. It is not often that Ministers of State take the trouble to see the actual situation for themselves. He travelled the entire area and examined it in detail. The outcome of his visit was— this is a fact known to the present Minister—that when the E.S.B. asked for permission not to replace the bridge Deputy Norton refused the permission and gave them 12 months in which to replace it. As far back as 1953, when this battle first started, the E.S.B. never said they would not replace the bridge.
Now, having got the 12 months, they did nothing. On the 19th December last, the people concerned had to assert their legal rights. They moved for a conditional order on the E.S.B. to replace the bridge. The case came before the court for hearing on 17th January, 1958. What happened? The Minister knows well what happened. The E.S.B. got 14 days in which to prepare their defence. Just before the 14 days were up, they asked for an extension and they were given another 14 days. They had 28 days in which to prepare a defence. It is on the records of the court that, if the Minister interfered during that period, who might be considered as a person who should be before the court for contempt. Yet, before the second 14 days had elapsed, on the 3rd February this year, the Minister stepped in and gave the E.S.B. the power they were seeking, namely, the power not to replace the bridge.
It is easy for the Minister to come in at this stage and say that he told the E.S.B. in the month of May to try to get agreement between all concerned. Why did he not adopt the same course in February? He knew the E.S.B. had not got agreement. He knew the E.S.B. had no power to offer compensation. He knew that the matter was before the courts for decision. Yet, he stepped in subsequently and interfered in a manner which has now complicated the entire issue. I fail to understand why the Minister should say that, because these people are now being dealt with so generously by the E.S.B., we should do no more.
This is not merely a case of championing a cause purely for the sake of the cause. If the people are entitled to compensation, they should get compensation; they should get nothing more and nothing less than that to which they are entitled. But it is quite obvious that under this section they cannot get that to which they are entitled. They will now be at the mercy of the E.S.B. It is the E.S.B. who will decide as to whether or not they are entitled to compensation. It is the E.S.B. who will decide as to the extent of the compensation. In these circumstances, I would under no condition agree to the section.
Before the Minister proceeds, would he answer one question? I understood the Minister to say that the E.S.B. had negotiated settlements with certain persons. Am I right in that?
Yes.
Would it be possible for the Minister, without disclosing names, to give an example of the compensation which the E.S.B. proposes to offer?
Would the Deputy be satisfied if I say that in practically every case it runs into four figures?
How high is the digit?
It varies. Two have £3,000, and some have £1,000.
What is the maximum?
The highest here is £3,000.
What is the lowest?
Now, do not push me too far. I want to say to Deputy Desmond—this is relevant to the question Deputy Norton is asking also— that, so far as people who are owners of land in the area and who had normal use of this bridge are concerned, nobody wants to deny them compensation. The E.S.B. want to pay them compensation. The only thing stopping them is that they have no legal power to do so. The purpose of this Bill, therefore, is to enable them to pay compensation. It is not a question of forcing them to pay. It is a question of enabling them.
With regard to power, I think I made it quite clear that the E.S.B. had no power, and has not yet got power to pay compensation. What I told them was that, if they got agreement between a substantial majority of the people concerned to accept compensation, I would bring in a Bill here enabling them to pay it. That is what I am doing now.
Deputy Norton asked about the compensation. One of the difficulties is that I have a very clear picture in my minds as to the people who should get compensation. Deputy Desmond talked about 12. According to my information, there are at least 14, and not 12, who should get compensation. Once you start talking in terms of compensating people for the closing of a public road or a public bridge, and provide some legal machinery, such as an arbitrator, for the purpose of assessing the compensation, you have no knowledge as to how wide the net may be cast and no knowledge as to the people who may put forward claims, and perhaps even get acceptance of these claims, before an arbitrator. My aim is to enable the E.S.B. to do what they want to do, namely, pay out substantial sums in compensation to landowners in the locality inconvenienced by the closing of the bridge. There is no question at all of having to force the E.S.B. to act. They are most anxious to pay compensation and they will pay it forthwith when this legislation is passed.
With regard to the legal proceedings, all I am doing here is empowering the E.S.B. to pay compensation in these cases. No other change in the law will be made. There will be no interference with anybody's legal rights.
I should like to refer the Minister to the amendment. Apparently the Minister is afraid, that too many people might come in if there was any question of arbitration. The amendment states quite clearly that it refers to any person who is the owner or occupier of land at the time of the coming into operation of this particular section. Therefore, that in itself closes the ranks in relation to any outsiders who may imagine themselves aggrieved to the extent that they would be entitled to compensation. That, at the very start, covers it. Secondly, the Minister is worried about the question of compensation and the question of the arbitrator. On what grounds are the E.S.B. acting as arbitrator? Somebody has to arbitrate. The Minister has given figures here.
I think these people are doing a great deal better by this procedure than they could ever have done by a more legalistic method.
Am I right in saying to the Minister that the E.S.B. often gave compensation in other cases in the past?
No. There were never such cases before. They never paid compensation in such cases before.
I am saying to the Minister, through you, Sir, that had it not been a case that these five persons had realised that they had protection under the law to object to the E.S.B.'s compensation, not alone would it have been a question of compensation, but it would have been finished by now and the board would have paid irrespective of the fact that at that time there was no legislation empowering them to pay compensation. It is a well-known fact that it was much to the upset of the E.S.B. when they discovered that some people, at least, did get to realise their legal protection and objected to the system. That is what I am telling the Minister.
I still say that I do not agree with the Minister's attitude that these people should be satisfied that they will get very good compensation. I do not want to give these people one brown ha'penny more than they are entitled to but I want to see that each of them will get what he is entitled to. I am sure the Minister must know the bitterness that has been caused by the bartering, offering and tricks, made by certain people in relation to the compensation being offered. Some people, because they refused compensation, were personae non grata with the E.S.B. If this Bill goes through, there is nothing in it to prevent the E.S.B. from saying to some of these five persons who are defending their rights: “You are getting nothing. There has been no serious damage affecting you.” What protection would that person get? It is poor consolation for a person living in the townland of Cronody that A, because he agrees to the question of compensation, will get £2,000 or £3,000 whereas B., because he fought for the right to get an alternative bridge, will be told by the board: “There is no serious loss or inconvenience. Therefore you will get nothing,” or, alternatively, if he is told by the E.S.B.: “There is a certain amount of serious loss but it only amounts to £10 or £15”.
I do not mind what figures the Minister may mention. I want to see each individual treated in a proper manner and the only way in which that can be done in this particular instance is to have preparation made whereby, if the E.S.B. fail to accept that there has been loss or inconvenience or fail to accept a fair discussion in relation to compensation, the arbitrator comes in and says, first of all, whether or not in his opinion the particular landowner has suffered inconvenience or loss and, secondly, if so, to what extent. That is what I am asking in the amendment and that is what I maintain is just.
Arising out of one remark by the Deputy, I want to give a quite specific assurance that no person entitled to compensation will be prejudiced in respect of the amount of it by reason of the fact that he was associated with the legal proceedings.
I am sorry to say to the Minister that, in view of the Order that was made on the 3rd February last, I cannot accept such an assurance.
Is it quite clear from the Minister's statement that, irrespective of the compensation offered, if those people persist in their right to have access to the courts and if the decision goes against them in the courts, they will still be entitled to compensation?
Oh, no. The compensation is because a bridge is not built. If, as a result of court proceedings, the E.S.B. is required to build a bridge, then, of course, the compensation will not arise.
In that case, may I ask the Minister, should the decision of the court be that the E.S.B. must build the bridge, what will happen in the case where the E.S.B. have already provided in that particular townland a bridge and an entrance to the property of one particular person with whom they negotiated successfully? Will he get it both ways?
This is an extremely complicated business. I visited the place for the purpose of informing myself as to what exactly was at issue and I saw many of the local landowners who are affected. It was estimated at the time that the erection of the bridge would cost something in the vicinity of £150,000, and when I went there and saw these people I sounded them on whether they would be willing to take compensation. The offer of a cheque of substantial proportions to a hardheaded farmer living in a remote area was something which I thought would develop in the farmers concerned an affection for the compensation but, much to my surprise, every single one of them said that they did not want compensation; they wanted a bridge.
I took the view then that, in the national interest, we were flooding the land concerned and were submerging the bridge. I did not feel that the relative handful of farmers in the area should be asked to make unreasonable sacrifices for what was a national requirement, nor did I think it fair that the E.S.B. should be entitled to dislocate the lives of the local people in doing, something which Parliament was charging them with the responsibility of doing. Therefore, I took the view that the E.S.B. should be required to build the bridge, as was contemplated in the original Order, and I told the E.S.B. that I would not release them from that obligation.
The main reasons which influenced me were, that the submerging of the Fitzgibbon Bridge and its non-replacement would cause considerable local dislocation, that these people ought not to have their lives dislocated in that way and hardship inflicted upon them when the difficulties were being caused in satisfying a national requirement. I said to the E.S.B.: "You ought to go ahead and must go ahead and build the bridge." After I left office, certain changes took place. The Minister told the board, I understand, that he would authorise them not to proceed with the building of the bridge provided they could make a settlement with the persons concerned. I found a distinct prejudice there against taking cash compensation in lieu of the bridge.
A certain position has now been reached. The E.S.B., apparently, are prepared to make offers to certain persons and, from what the Minister says, I understand that these people have undertaken to accept those offers. That is all right and I suppose nothing serious would happen if they were all in the same boat and the E.S.B. could make a settlement with them all but the position, as I understand it, is that some of these people have brought their case to court to require the E.S.B. to erect the bridge and that matter is still at hearing. It may very well be that the court will decide, on the legalities and the equities, that the E.S.B. should be required to construct the bridge in lieu of the submerged bridge. If that happens, the whole question of compensation is up in the air because, presumably, a new bridge will be erected, unless the Minister comes to the House with an amending Bill to upset the judgment of the court by retrospective legislation. I hardly imagine that the Minister contemplates doing anything of the kind.
In this particular instance, the net point of difference between Deputy Desmond and the Minister is, who should determine the compensation. Deputy Desmond's amendment, as I understand it, travels a long distance with the Minister except in so far as the last line of the amendment is concerned, that is, that, failing to get agreement between the E.S.B. on the one hand and the affected farmer on the other hand, the amount of compensation shall be awarded by an independent arbitrator. That is the net point as I see it, between them.
In this matter, not only have we to be fair but we have to appear to be fair. While it may be possible to have, as it were, a horse-trading arrangement, whereby the E.S.B. will give a person more compensation than he would be likely to get from a legally appointed arbitrator, nevertheless, you do not provide for the case of a person who feels he may have got more if the person who has to pay the money is not to determine his compensation. The E.S.B. has no high reputation for generosity in compensation claims. Anybody who has any experience of the E.S.B. in that field will not be bursting with anxiety to pay tribute to the generosity of that body.
In this case, the Minister is saying to the E.S.B.: "You are the body concerned. You are the people who are liable to build the bridge. These people complain that you are not building the bridge and we will let you out of the whole arrangement by your paying compensation." However, in this case, the E.S.B. is really the defendant and it is a bit unusual, if one is thinking of equity and fairness, that the defendant should decide what amount of compensation he will pay for the wrongs he has inflicted on the plaintiff.
The normal procedure in a case of that kind is to allow somebody, standing between the plaintiff, on the one hand, and the defendant, on the other hand, to find a basis of agreement, if they cannot find such a basis themselves. The Minister says the E.S.B. offer is generous, but nobody knows how much these people might get, if the compensation were assessed in any other way. Is there any difficulty in assessing compensation? Maybe there is, but I am quite sure that among our 3,000,000 people, somebody can be found who is able to assess compensation, in the same way as somebody in the E.S.B. has attempted to assess compensation in the case of those to whom compensation has been offered.
I think, as I said earlier, this is a case of not only being fair but of appearing to be fair, as well. There is something basically wrong in allowing a defendant to determine the amount of compensation payable to a plaintiff. If they agree, well and good, but if it is a case of disagreement, surely somebody else should be allowed to do so? I do not think it is beyond the wit of man, or beyond the wit of officials in the Department of Industry and Commerce, or the E.S.B., to devise some type of machinery which will operate to adjudicate upon the reasonableness, or otherwise, of compensation, in the event of disagreement between the two parties. I think the Minister should reconsider this matter.
The Deputy is producing false analogies. Arbitration, presumably, must be open to every party. Here the E.S.B. have not gone into an arrangement for assessing the compensation on some legalistic basis but upon a quite generous basis. Arbitration, presumably, must mean that somebody is going to discuss in legal terms the basis of compensation. To talk of arbitration now, the conditions under which an arbitrator is to operate, and to talk of how compensation is to be assessed on any legalistic basis, or any accountancy calculation of the losses suffered by these individuals, might mean that the amounts offered as compensation might be a great deal less.
I certainly would not contemplate the E.S.B. going back over cases where they had already agreed to pay compensation, but I think it would be quite unreasonable at this stage, having got agreement in respect of all but a couple of cases, that the question of arbitration should be raised. There may, perhaps, be in the minds of certain people who are associated down there with the legal aspects of the question, a feeling that they may have prejudiced their compensation with the E.S.B.; that by holding out, they may have worsened their prospects of compensation. The assurance I am giving is that the E.S.B. will not reduce the compensation in these cases, and I shall be personally concerned to ensure that the compensation in these cases is in accord with the general picture of the agreements already concluded. I could not go any further than that because there are a number of factors to be taken into account which I might not know. The compensation, however, will be in accord with the agreements already reached.
The Minister is avoiding the main issue. He has stated that he will not reconsider the rights of people in cases where agreement has already been reached with the E.S.B. but what was the basis of those agreements?
Put up an arbitrator and what happens?
We are asking who acted as arbitrator in this case?
I am trying to explain that there would be legalistic calculation of the compensation.
If the Minister wants to take it up on a legal basis——
I am trying to get away from it.
Thanks be to God, these people still have the protection of the courts and, in spite of the action taken on 3rd February last, they are still in the running. Is there any provision in Section 7 to prevent the E.S.B. from giving compensation to these people for the inconvenience they have suffered in the meantime, should the court decide that a bridge must be built? The taxpayer is involved in this also, because the E.S.B. are not handing money out of some private fund or "kitty" of their own. It is taxpayers' money. Is there anything to allow the E.S.B. to pay compensation for such inconvenience, if a bridge has to be built? Surely the Minister is not proposing to leave a section in the Bill open to that line of argument? There is no use in the Minister's saying he will give one guarantee or another. There is no guarantee that can be given that he will be in this House when the matter arises. That is why I say the section is bad. It is not giving protection to the people concerned or to the taxpayers.
I know this area only remotely but, as far as my knowledge goes, those who are still holding out are people who are more affected than those who have already agreed to compensation, so that though the Minister might consider the compensation already given to be adequate, it might not necessarily be adequate for those still holding out. Where two people have a difference over a question of money and compensation, I think an independent arbitrator is the proper person to adjudicate in a case like that.
We want the Fifth Stage left over until next week.
Thursday?
Whatever day will suit the Minister.
