I am very sorry this section was inserted in the Bill. I will oppose it, first, because it is unconstitutional and undemocratic; secondly, because its adoption will tend towards inefficiency and laxity in the conduct of the commissioners' service; thirdly, because its adoption will tend to stifle private enterprise and interest in arterial drainage; and fourthly, because its adoption will be a grave injustice to the ratepayers of the County of Limerick and because, taken with Section 29, it points the way to a further heavy impost on the county ratepayers. It is unconstitutional because the State, by the section, unmistakably undermines the authority of the High Court. A few years ago, when the Constitution was being approved, it was held up to the world as a model for democratic governments in every country.
There is no doubt that it was drafted with meticulous care. There is, carefully enshrined in it, the ethics of Christian philosophy and Christian democracy, and one of the fundamentals of that Constitution is the preservation of the liberty and security of the subject, and the security of the property of the subject. Here, however, we have a serious invasion or abrogation of certain parts of that Constitution. I say that the ratepayers of County Limerick, of every shade of political opinion, are absolutely convinced that the inclusion of this section in the Bill is wrong and that its inclusion occurred only after the judge's decision had been given against the commissioners. Its inclusion is an outstanding example of government by a bureaucracy—for the State, as against the people. I have held in this House, and I have repeated it in all places, that since the advent of national government here there has been a serious invasion on the rights and liberties of the people; that there has been a serious curtailment of the rights of public bodies and public representation. In the report of the Vocational Organisation Commission, which was set up by the Government in 1939, and whose report was issued a few months ago, you have the considered opinion of a body of men whose honour, and whose capacity to frame and dictate such a document cannot be questioned here, and you have there an indication that recent legislation in this country is tending, more and more, towards a bureaucratic form of government.
I know of nothing, since the Pigott forgeries, that has had such a prejudicial effect on the minds of the people of this country, and particularly on the minds of the whole community of Limerick City and County, than the introduction to-night of this retrospective legislation, which treats with contempt the powers and rights of the people and which renders the powers and rights of the citizens of this State nebulous. Not alone are we considering a retrospective form of legislation, but we are also given, as one might say, anticipatory legislation, as a result of what will flow from what has happened in Limerick. It is not so much a matter of pounds, shillings and pence as of the invasion of the rights and liberties of the subject, which are being attacked in this manner.
We all know that we would have a perfect Drainage Bill if this section had not been added to it, and we also all know that this section was not added to the Bill until the matter of the legality of the holdings of a draft award was questioned by the Limerick County Council and judgment was given by the High Court in favour of the Limerick County Council. The council's engineer and the riparian owners' engineer believe, rightly or wrongly—rightly, according to the judge—that the Limerick county councillors were entitled to test this matter, of whether this scheme was reasonably carried out or not, in the High Court of our land.
I do not intend to delay the House long, but may I recall this: We heard allegations to-day as to certain things that characterised the activities of some county councils in the country, in not discharging their duties in certain areas, and the Parliamentary Secretary sought an opportunity to make certain allegations against the Limerick County Council under that head. Now, I have sat as a member of that council for 20 years, and for ten years before that I was a member of a district council, and so I have an unbroken record of 30 years of service, and when I hear such allegations being made, I think I can claim the right to stand up here and defend the rights of these people. I have a document here—I shall not read it, as I do not wish to detain the House—which shows that since the advent of national government in this country 50 schemes have been carried out by that county council under the head of water supply and sewerage, which the board of health had contractual obligations to carry out. I have here proof that the county council have met all their commitments up to date and that, as well as that, they have built for the workers 5,600 houses. The Parliamentary Secretary, in the other House, said that we were one of the few county councils who took advantage of the 1933 Arterial Drainage Act and that we did our work efficiently, and from that until now we have met all our charges and commitments. We have built something like 6,000 houses and over 5,000 cottages, and we have expended £250,000 in providing modern and hygienic conditions for the people there, for whom very little had been done to improve their conditions during the period of foreign administration. Nearly £250,000 has been expended by our council in that period for the improvement of the conditions of the people in the area. That goes to prove that the Limerick County Council met all their commitments and carried out all necessary work. In view of all that, I am sure you will be forced to ask, how is it possible that a county council with that record should be treated in this way—a county council in regard to which two Ministers of the present Government, at a public meeting in Limerick, said that they wished to place on record their appreciation of the high standard of work performed by the Limerick County Council?
Now, I come to deal with the attitude of the Parliamentary Secretary in the Dáil before dealing with the scheme proper. In the Dáil, when this matter was being discussed, the Parliamentary Secretary said:
"To those Deputies from Limerick, to those critics from Limerick, I am putting this further poser: what was the condition in which the Limerick County Council maintained the district between the years 1919 and 1932?"
I shall not read further. What was the inference to be drawn from that? I wonder if the object was to impress the other House with the inefficiency and carelessness of the Limerick County Council in failing to discharge that duty? There was an old Mulkear drainage scheme which now becomes part of the Mulkear and Cappamore drainage scheme. This scheme came into operation under an Act of 1863, and went into final award in 1877-67 years before there was a county council in Ireland. It was a scheme prepared, I presume, by the landlords of the time, and a board was appointed. In 1919, a provisional order was issued by the Local Government Board imposing upon the county council the obligation —as from that date—to maintain this old scheme. In 1920 an Act was passed in the British House of Commons, entitled the Local Government of Ireland (Provisional Order) Act, No. 1, which Act superimposed upon the county council the obligation of maintaining that scheme.
The Parliamentary Secretary charges the county council with neglect from 1919 to 1932. I admit that there was neglect, but the conditions surrounding the matter were such that they must influence the mind of every decent Senator. Is it not a strange irony of fate that a Parliamentary Secretary in an Irish Parliament in 1944 condemns the Limerick County Council for failing to carry out the Order of an alien Parliament in 1919? Did any county council operate normally in 1919? The men who carried on the work of the county council in Limerick had no regular place of meeting and had no regular meetings. They met in stealth, dodging the "Tans", and carrying out patriotically the orders of the native authority—that, as a council, they were to frustrate by every means in their power the continuance of local government under an alien authority. One of our councillors was shot in Dublin.
There were painful episodes in that period and I shall slip through it as quickly as possible. The Treaty came, with the unhappy things that followed, and so there was a continuance of the confusion. No man could call his soul his own. The councils met in hay barns, under trees and such places, carrying £100,000 or £50,000 in their pockets to keep the public bodies going. You could not ask a body of men doing such work to take spades and shovels and clean the Mulkear drainage, initiated by landlords and neglected by them for 42 years.
The first time men began to breathe normally again was after the election of 1925. That was the first election of public bodies under a national Parliament. When we went in in 1925, we had deputations from Mulkear and Cappamore at every meeting. We were pestered regarding these districts. The people of Cappamore had no scheme and lives were being lost by the overflowing of the river. The people below had really no scheme either, because 42 years of neglect by the board set up by the landlords were bound to have a deleterious effect upon the whole system. We, as a young county council under an Irish Parliament, had to meet these deputations. What did we do? Senators are aware of the progressive record of the council both anterior to that date and subsequently. We gave instructions on the matter to our county surveyor—a very efficient man, a man born in the area and selected by our own Government to go into another county a few years ago and regularise and clean up a certain mess there. The Government must have had confidence in his ability, tact and confidence in his profession to ask him to discharge that duty. We said to him:
"Examine and report back to us the whole position". I have his letter here but I shall not read it. He said, in effect:
"You cannot touch it; the difficulties are appalling and, since the scheme was carried out, it broke three times, with disastrous results. There is only one thing to be done: you must have a comprehensive scheme so as to save lives in Cappamore."
That took months between surveys and levels and so forth. We were in negotiation in 1925 with the Board of Works—the first time we began to breathe freely. In 1926, the first petition was received by the Board of Works, and so it continued until 1932. On the 20th October, 1933, the Minister for Local Government confirmed a drainage scheme for the improvement of certain lands and premises in the County of Limerick.
I hold that there was no need for that retrospective section, which was never intended to be a part of the Arterial Drainage Bill. Is it not incredible to think that for 20 years— from 1925 up to to-night—the sickening drama of the Mulkear and Cappamore drainage has been proceeding? The most tragic act of that drama is the introduction into an Irish Parliament, by way of retrospective legislation, of a section to annul a decision of the High Court and to treat with contempt the property and rights of the people. The Minister was to be responsible for a certain percentage of that. Ultimately they agreed to an estimate. We knew that the Board of Works was the only responsible authority to carry out such a scheme. They have the experience of 100 years behind them. They have the engineering technique. If they have not, who has? We knew all that. They came down to Cappamore and prepared their estimate. I presume they had their levels taken and examined the sub-soils, and so on. After a careful examination, they submitted an estimate for £22,850. We had to increase our contribution from the rates from 34 per cent. to 36? per cent. We did that. The scheme was then ready. To that contractual obligation there were two parties. There was the Board of Works on the one hand and the Limerick County Council on the other. It was a contract made under the specific terms of the Arterial Drainage Act, 1925. Both parties were bound specifically by the terms of that Act. The county council have carefully, methodically and conscientiously carried out their contract in the spirit and in the letter and—I say it with all due respect—the Board of Works have failed lamentably because they ignored the Act and have treated the judgment of the High Court with utter contempt.
The cost of the scheme was increasing. It went up from £25,000 to £30,000 and from £30,000 to £31,000. We were being reported to and, in my opinion, we acted very judiciously in the interests of the ratepayers. We had the assistance not only of the county surveyor and assistant county surveyor but of a consultant engineer, a man who had been one of the chief Local Government engineering inspectors up to a few years ago. The whole party worked as a team, to co-operate with, not to frustrate, the commissioners. We had carried out a great deal of contractual work running into nearly £300,000. We were a body of men having a sense of moral obligation and a sense of responsibility in discharging our administrative duty to the people. We were elected by the people to be the guardians of their interests and we felt that these interests must be protected. We were prepared to co-operate and we did co-operate. Our boots were worn coming on deputations. I think I attended four deputations over all these years. I came with Deputies of the county, with Senators, to try to prevail upon the Board of Works. Before they started, the county surveyor made a suggestion to them. They dispute this now although I have documentary evidence to support the statement. The Board of Works contemplated, in the first part of their scheme, to work as and from a particular point up to the catchment area of Cappamore. The county surveyor, who knew the place intimately, pointed out that there was six foot of rock at Abington and that unless that was removed, in flood times, it would block the flow and add to the intensity of the river, with consequent destruction. At the other side of Abington there was an island, and he suggested that that should be removed, because when there was a rush of water from the mountain streams the island divided the stream.
The Parliamentary Secretary suggested that the Limerick County Council had not given them co-operation. That was co-operation. As they continued, we requested the Board of Works to receive a deputation so that we might be able to put before them some points that would be very helpful in the successful prosecution of the scheme. The late Parliamentary Secretary met a deputation and the county surveyor pointed out that there should be a number of sand traps in the reaches above Cappamore to check the velocity of the stream. We were laughed at that day—I say that with respect to the memory of the late Parliamentary Secretary—and two years after that the Board of Works had to adopt the suggestion that was made then by the county surveyor.
We appointed a number of men to make an examination. We could get nowhere with the Board of Works. Deputations failed; Deputies failed; Senators failed. The county surveyor and the assistant county surveyor and the surveyor for the riparian owners, who has no connection with the county council, got nowhere. At long last—to show the House the interest we did take—at a meeting of the Limerick County Council, we appointed the following people, who consented to act: Dan Bourke, T.D., Mayor of Limerick, Michael J. Keyes, T.D., Robert Ryan, T.D., G.C. Bennett, John J. O'Shaughnessy, the county surveyor, the county solicitor, and several of the interested riparian owners. We asked them to make an exact and careful survey and we indicated to them all the measures that were being taken to try to bring the Board of Works to a realisation of their position and of their statutory obligations. They reported to us as follows:—
"Gentlemen,—At the request of your council, we visited the Mulkear drainage scheme on the 24th ultimo, accompanied by your chairman and county surveyor. We met several interested parties on the ground and inspected a considerable length of the Bilboa, Dead and Mulkear rivers, also some main drains. As a result of our inspection, we have no hesitation in saying that we were amazed at the present condition of the rivers and drains, in view of the huge amount that has been expended on their improvement. At various points along the Bilboa river and on the Mulkear below Sunvale Bridge, there are large deposits of sand and gravel representing thousands of tons brought down, we understand, since the work of dredging and deepening has been completed. The local people informed us that these deposits are now as great, if not greater, than before the work on the drainage scheme commenced. Again, along practically the whole length of the main rivers, considerable slipping of the banks has taken place, and from the present appearance of these banks further slipping is bound to occur."
We must, of course, be reasonable. We all know that even with the best intentions where a bank is put up freshly, and torrential rains fall before the bank has time to set, slipping will occur. We were quite satisfied that this Department, like other people, can make mistakes. Did they admit that they had underestimated and ask: "What are we going to do about it?" I was one of a deputation that went to the Department after the judgment had been given in the High Court. In moving a vote of thanks to the Parliamentary Secretary—all the Deputies in the constituency were there—I made a further appeal to him and asked if there was novia media. I pointed out that, according to the decision of Judge Overend, the Department could only increase the cost by 10 per cent. but that in fact they had increased it by 70 per cent. The county manager pointed out that if the county council were compensated it would obviate all the trouble. We were told that they would not pay more than the 10 per cent., and that what we asked could not be done. They talk about bureaucracy. Was not that dictatorial? Senator Crowley can bear me out on that. The report then went on to speak about the sand traps.
I will now read one or two extracts from the decision given by Mr. Justice Overend which, I think, are pertinent. In the course of his judgment, he said:
"These considerations made it clear that Section 14 means exactly what it says, viz., when and so soon as the scheme has been fully carried out and all works to be executed pursuant thereto have been completed, the commissioners shall prepare their draft award. They are given no power to do it sooner and they could not comply with the requirements of the section at an earlier period. In my opinion the costs and expenses must be known and included to the last penny, the annuity and its apportionment and the charge on the county fund must be stated with precision, and not until all these things are definitely ascertained can the draft award be prepared or the inquiry thereon be held. In my opinion the preparation of the draft award was premature andultra vires and the inquiry a nullity.
The commissioners in this case took a very unusual course for, on the 29th July, 1942, long after this action had been commenced seeking an injunction to restrain the making of a final award, they purported to make the document containing the astounding alterations now before me without notice to the plaintiffs or applications to the court."
The judge went on to say:—
"I may add that it has often occurred to me to be unfortunate that corporations, public bodies, companies and other incorporated bodies when they find themselves in doubt or difficulty as to the true construction of some statute, charter, memorandum and articles of association, or other document, which governs or controls their activities, do not more often seek the aid of the Court before taking some important step of doubtful validity. In many cases such a course would save much expense, time and trouble."
I said, in the early part of my remarks, that we were considering retrospective legislation. I also said that we were considering prospective legislation or anticipatory legislation. So far I have been talking about the Mulkear and Cappamore scheme for which the estimate was £25,800. The board was entitled under the statutory rights that it has under the 1925 Act to increase that by 10 per cent., but the board increased it by 70 per cent. There is another scheme called the Maigue and Loobagh. The estimated cost of this was £6,600. To-day, it stands at approximately £12,000. In that case we got no sympathy. Reason could not prevail. We appealed to the commissioners as we did in the other case, and at long last we had to take action. When the judgment in the other case was given, the Maigue and the Loobagh case wassub judice. On finding that we were about to take action to restrain the commissioners we received the following letter from them. It was addressed to the solicitors to the Limerick County Council:—
15 St. Stephen's Green East, Dublin.
22nd June, 1944.
"I have been instructed by the Commissioners of Public Works to inform you that consequent upon the recent judgment of Mr. Justice Overend, the introduction of legislation is being considered.
As such legislation would,inter alia, embrace the Maigue and Loobagh drainage district, it is assumed that your clients will not now proceed with the action pending in relation to that district. Perhaps, however, you would be kind enough to confirm.”
That letter was brought before the council. What did the council do? We had already been charged with the relevant part of the £37,000, plus £1,500 law costs. The case was at hearing for seven days. Surely, we were not going to compromise the interests of the unfortunate ratepayers with another action in the courts which everyone respects except a Government Department. What is that letter inferentially but this: "Go on with your case; we do not give a damn for the High Court"—pardon the expression—"or its decision, but we are telling you what we will do. We will retreat to the Dáil and Seanad, and we will teach you the salutary lesson that it is injudicious to take action against a Government Department." Will any man question the attitude of one of the finest county managers in Ireland? I will not mention his name, but we are blessed with an able and a sympathetic county manager. I have here his letter to the Limerick County Council, of 19th October, 1944. Nobody questions his politics, but as county manager he discharges the duties of a very responsible job, and he is doing so well. This is the letter:—
"In accordance with the decision arrived at by the council at their special meeting on 9th September, a request was made to the Parliamentary Secretary to the Minister for Finance to receive a deputation, and this deputation was subsequently fixed for 27th September at the Office of Public Works. The members of the county council present were Mr. John Canty, chairman; Mr. John McCormack (who was chairman for 14 years), Senator Madden, and Mr. T. O'Connell. The seven Deputies for the county were also present, and Senator Crowley, Mr. T.F. Ryan, county surveyor; Mr. R. O'Sullivan, law adviser, and myself, completed the deputation.
A full discussion of the history of the Mulkear scheme took place, and on behalf of the council it was urged that the Government should give some relief to the ratepayers of County Limerick. It was pointed out that there was no legal barrier to prevent the Minister for Finance making a more generous contribution towards the scheme. This appeal was strongly supported by the Senators and Deputies present, but the Parliamentary Secretary in his reply gave no hope of any relief...."
The Parliamentary Secretary is present now, and he stated then in answer to the county manager that relief could be given but that it would not be given. In reply to my vote of thanks, he stated: "You are coming now looking for compensation, after the exposition in the courts." The report continues:—
"The members of the deputation expressed their disappointment at this treatment of a representative and influential deputation. It would seem that the members of the deputation had been put to the expense and trouble of travelling to Dublin merely to receive a lecture from the Parliamentary Secretary on the futility of taking legal proceedings against a Government Department.
"Since the return of the deputation from Dublin the local Deputies have furnished us with copies of the amendment which has been introduced to the Arterial Drainage Bill, with a view to modifying the decision of the High Court...."