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

Debate resumed on Section 17, amendment No. 19.

I think I covered most of the points that would seem to require attention in regard to this amendment. When I submitted the amendment I was not aware that a somewhat similar amendment had been submitted in the other House. It is a coincidence that that amendment followed lines somewhat similar to those of my amendment. There are important essential differences, however, and I would be prepared to admit that perhaps the Parliamentary Secretary was to some extent justified in refusing to accept the amendment in the other House. I should like to explain for the benefit of the Parliamentary Secretary that I am not personally acquainted with the Deputy who moved the amendment. There was no collusion whatever. I mention this because the fact that the Deputy is interested in a county which is situated 70 or 80 miles from the county in which I happen to be interested would go to prove that the problem is not merely local but one of national dimensions.

Almost since the establishment of our national Government there has been a great deal of uncertainty regarding matters like customs duties. It is only since 1930 that there has been a fixed definite national viewpoint in regard to this particular problem. That would account, perhaps, for the hesitation on the part of a number of proprietors of mills to start industries during that period. They were uncertain as to the possible effect of customs duties. I think it was intended that there were two things to which the arbitrator should give attention. One was the use to which the mill had been put during a limited period, say, ten years, and the other was the alternative source of power that might be available. But while there is a reference to the fact that the arbitrator should take into account that an alternative source of power is available, there is nothing to show on what terms that power would be made available to the owner. My amendment then is intended to suggest that the arbitrator, in addition to considering whether there is an alternative source of power available, should also take into account the terms on which that power would be supplied to the mill. I think that is an aspect of the matter which should receive attention. The Parliamentary Secretary may say that that is implied in the section as it is already drafted, but I feel that something more definite is needed, and it was in order to get that more precise meaning into the section that I submitted the amendment to that particular portion.

The other, and perhaps the more important part of the section, that is to say the part which deals with the extent to which the power so provided was used, is allowed to stand. I have not made any suggestion that that should be altered. But there are a few important words, and those are the following: that the arbitrator "shall... in addition to such other consideration as may appear to be relevant and equitable". That, I think, is important because it indicates to the arbitrator that he is at liberty to consider not merely the two items mentioned in the Bill but that, should he find that there are other considerations which ought to be in equity considered, he is at liberty to do so.

The next point is that I suggest that where a scheme has been actually initiated, and a certain amount of expenditure has been incurred, even though that scheme had not reached the form in which it could be said that the power of the mill had been put to use during the limited period, allowance should be made for such expenditure. If this amendment is accepted— I hope the Parliamentary Secretary will agree to accept it—there is another consideration which will follow. This will not placate the Parliamentary Secretary, but still I must say it: if the property has to be paid for, it will make the engineers in charge more particular as to the property they acquire, but if they feel that they can get property at any price or no they will be inclined to take it over on the off-chance of its being necessary. They will be forced to give the matter more serious consideration if they know that reasonable compensation will have to be paid. I do not wish to detain the House any further. I think the Parliamentary Secretary will admit that the whole spirit of the amendment is one calculated to appeal to any fair-minded man, and I hope he will see his way to accept it.

As far as I can see the principal point is this: Are we reasonable in suggesting that the arbitrator should be limited to a ten-year period, or would it be more just and equitable to extend that to a period of 20 years? I entirely disagree with Senator O'Reilly when he says that ten years is not a reasonable period. I think it is. I think a ten-year period from the date of the confirmation of the scheme gives to the arbitrator and to the person whose property is about to be interfered with all the protection that they could reasonably expect to get. After you have disposed of that point, there is no limitation imposed upon the arbitrator as to the matters he will be free to consider. He will be free to consider all matters. My conception of an arbitrator—I do not know whether it is the right and proper one—is that he must be given freedom. In a case of this kind, he must be given freedom to go down to the banks of a river on which a mill or the remnants of a mill are situated; he has to ask himself a whole lot of questions; he has to answer those questions; he has to make up his mind. He may in fact go another half-mile and meet a different set of problems there—an altogether different set of reasons as to why he should load the dice in favour of the individual whose property is being interfered with, or why he should say: "That man in fact has no right at all." In this section here, we are confining the arbitrator in only one respect, and that is that he can go back only ten years from the date of the confirmation of the scheme, but after that he is free, as an arbitrator should be, to consider all matters which he regards as relevant.

The question as to whether there was any collusion, or as to whether Senator O'Reilly read the report of the discussion on an amendment similar to the one which appears here on the Order Paper, does not arise. The amendment which appeared on the Dáil Order Paper was a different amendment altogether, I agree, but it was one that we had to resist, and this is also one that I must resist, because I must confess that I do not see any need for it, nor do I agree at all that the period should be extended in the manner suggested by the Senator. In so far as those water rights are concerned, my experience in the past from whatever little connection I had with local authorities has led me to think that in many of those cases private interests had altogether too much protection. They were in many cases free to go to the courts. Of course, I am not criticising the courts in any way, but, having regard to the interests that were involved and having regard to the community interests that were bound up in many of those matters, as a layman it often occurred to my mind that those private owners of rights of the kind that will be interfered with here got far too much sympathy when they sought the assistance and protection of the courts in this regard. I will resist this amendment, because I feel that what it deals with has been amply and generously dealt with in the section as it stands.

I am not absolutely satisfied, on the wording of the section as it is, that what the Parliamentary Secretary has just stated as his opinion of the way it should be done is in fact what the arbitrator must do. In the beginning, the arbitrator is given a general power which seems to me to end with the consideration of the benefit that may reasonably be expected to apply; and then he is given certain particular powers. I am not quite clear where in the section the general power exists for the arbitrator to consider everything as apart from the future benefit.

Where is the prohibition?

The prohibition is here and is in particular; and I think that that is the way it would be construed. I accept the Parliamentary Secretary as intending to carry out what he has just said, but this is a matter of legal drafting and I would suggest that, between now and the Report Stage, he ask his legal advisers to look into it on the lines I have suggested. I may be right or wrong, and I am not suggesting that I am bound to be right.

The Parliamentary Secretary opened by suggesting that a period of ten years was quite reasonable. I agree that ten years would be perfectly reasonable, if five of those years had not been taken up by the emergency. I do not want the position to arise under which the operator of a mill could be made take the average of ten years, and the arbitrator, in arriving at what had been done, would consider those ten, though the first five of those may be reasonable years and the last five may be the emergency years, which would so operate as to take away the benefit of the previous five.

Confirmation of the scheme, Senator, as from the date of the confirmation of the scheme.

But we must assume that the scheme might be confirmed before the end of the emergency. At least, I am working on that basis.

I would like to see what difference that would make. If I have a derelict mill on one of those rivers about to be treated under this measure, surely I have had as good a chance— in fact, a better chance and much more inducement—to recondition that mill during the last five years for milling purposes, than I had for many years prior to the emergency. If you were to say ten years from the passing of this Bill into law, then I would say that that would be unjust, but when you have it as we have it here in the section, ten years from the date of confirmation of the scheme, I must say that the five emergency years which have been referred to do not seem to affect it at all.

I did not make my point clear to the Parliamentary Secretary. Supposing that, in 1940, something broke in a mill, perhaps a steel shafting, it is probable that it would take a long time to replace it during the emergency, if it could be replaced at all. During this period of years—it might take a year or two, or even until after the emergency—if he were not able to operate the mill, it would be hard that he could be tied.

Yes, it would be hard.

It is that particular point I want to stress. It might be affected by the section as drafted and would not be affected by the amendment suggested by Senator O'Reilly.

There seems to be a certain amount of confusion on the part of Senator O'Reilly, who moved this amendment, and Senator Sweetman. Section 17, which is under consideration, is, in a sense, a negative section. Under the three sections preceding it, Sections 14, 15 and 16, a person is entitled to get full compensation for the injury suffered by him as the result of a drainage scheme. Under Section 16, he gets compensation, provided he suffers any loss or damage by reason of an injury to any water power or water rights. That is complete in itself. Section 17 is a negative section, that is to say, while a person is entitled, under Sections 14, 15 or 16, as the case may be, to compensation for the injury, the arbitrator is entitled, under Section 17, to deduct certain items from that compensation. For example, the arbitrator is entitled to deduct from the compensation payable under Section 16 the value of the benefit which the owner of the mill or other property acquired derives from the drainage scheme. He is also entitled to take into account, in the case of a canal or other navigable waterway, the benefit which will accrue to the navigation of such waterway by reason of the drainage scheme. In the case of a claim in respect of water rights, the arbitrator is entitled to deduct the value of the alternative water supply provided by the commissioners; while, in the case of a mill, he is entitled to have regard to the extent to which the power so provided was used for an industrial purpose during the ten years next preceding the date of the confirmation of the drainage scheme by the Minister. The arbitrator must also have regard to any alternative source of power provided by the commissioners.

In this amendment, Senator O'Reilly provides that the arbitrator shall, under sub-paragraph (ii), have regard to "such expenditure as may have been incurred during the period specified in the next preceding sub-section by the person claiming compensation in connection with a scheme for the utilisation of the power in respect of which interference is necessary for the purpose of the drainage scheme". In fact, such expenditure would be added and not deducted, so that, if this amendment were adopted, the arbitrator, having regard to the framework of Section 17, would have to deduct from the total compensation the expenditure which the owner had incurred during the preceding 20 years. That, of course, is absurd. I submit that the amendment defeats its own purpose and that the Bill as it stands is sufficient to provide full compensation for the person whose rights have been interfered with, whether those rights relate to the acquisition of land, water rights or fisheries. Section 17, which I call a negative section, should be confined to the shortest space possible. I submit that no useful purpose could be served by adopting the amendment.

I am afraid Senator Ryan has misunderstood the intention of sub-section (2). The Senator states that this benefit will be added. That is exactly what I want to make sure of—that that is the intention of the sub-section. The Senator must have thought that I understood it was to be subtracted. That is not so: I want to make sure that it will be added. I must candidly confess that, had I not had a very long discussion on this very Bill and on this very section with certain Deputies, I think even before it appeared in print at all, I would have been less uneasy about the intention of this section. In fact, I would be inclined to ask the Parliamentary Secretary if there is any scheme, to his own knowledge, the attempt to work which may have suggested this particular form of section. Unless my information is very wrong, there is here a deliberate cold-blooded attempt to ride roughshod over people and that will have repercussions later. I do not know who will be the loser in that matter. I should imagine that it would be to all our interests to preserve the greatest balance of social equilibrium. I am not satisfied with the section as it stands. I consider that this can be read by the arbitrator to mean that he is told to take two things into consideration: (1) the actual use which the thing is being put to and (2) the alternative source of power.

During the discussion in the other House there was a question as to the terms upon which that power might be supplied. There was a suggestion there that, in lieu of the power being taken away, the Electricity Supply Board should supply power free of charge for ever. That was rejected. If the Electricity Supply Board, when a scheme is put into operation, will not supply free power, at least the terms upon which they are going to do so ought to be known to the arbitrator or there should be some estimate before him to enable him to assess compensation. I would again ask the Parliamentary Secretary to consider this further on the Report Stage. I think that the suggestion of Senator Sweetman is a very wise one, that he should ask the Parliamentary draftsman or his legal advisers to look at the section again, and if he comes back on the Report Stage and says he has done so, so far as I am concerned I will say no more about it. I should like to point out that my only reason for referring to what happened in the other House was that the person concerned, whatever his personal views may be, is undoubtedly an exceptionally able man, a man of great business experience, and that he, quite independently, arrived at the conclusion that an amendment of this section was called for. That should be taken into account. I hold I am a responsible person and I believe that the Deputy concerned is equally a responsible person and that neither of us would ask for the acceptance of an amendment unless sincerely convinced that there was need for it. I personally believe there is need for the amendment.

Has the Senator any objection to the arbitrator off-setting any advantages that a mill-owner would derive from the carrying out of the scheme?

I would say most definitely not. I have no objection to that, but I do object to the arbitrator being, on the face of it anyway, limited to two things. I think that this section as it stands is not really worthy of this House. It is too important and too vital a section and I suggest it ought to be reconsidered.

I dislike saying that I will reconsider a thing when I know that the reconsideration of it is not likely to produce results, because it may be misleading. Sometimes that is interpreted, if I may use a rather vulgar expression, as a sort of pigheadedness. I do not want to mislead the Senator or the House. I have no objection to saying that we will reconsider this section but, I must confess, as Senator Ryan has stated, that I can see nothing objectionable in it. When a man applying for compensation, as well as having an injury done to his property will also receive certain benefits, I do not see why you should not assess the damage and the benefit, subtract one from the other, and give the balance. I think that is quite fair.

Everyone agrees with that. The Parliamentary Secretary is as one with the whole of us on that. But is it clear that Senator Sweetman is wrong, so to speak? Is it clear that the arbitrator can construe in favour of a person not only what is set down in paragraph 5 (c) but any other injury done to him? If that is clear, then it is all right.

Everything else is in favour of him.

Yes, these are the things against him.

Even the expenditure for the previous 20 years is in favour of him and will be taken into account under the preceding section, Section 16. What is against him will be taken into account under Section 17 and then he will get the balance.

Then we are quite happy.

The only reconsideration asked for is to make it clear.

I assure you that we do not want to have it any other way because it would not work very long. I will give that undertaking.

I accept the parliamentary Secretary's assurance that he will give the matter further consideration and, if he rules against me, I am satisfied. There is a certain joke about a man who was asked for 17 reasons for not doing a certain thing and his answer was that in any case it would do no harm. I suggest that this would do no harm in the Bill and will satisfy everybody. However I am prepared to accept the Parliamentary Secretary's assurance that he will give further consideration to the matter and, if he rules against me, I will accept his decision. I am not very familiar with the procedure of the House, but it has been suggested to me that I should withdraw the amendment now and put it down on the Report Stage.

That course would be in order.

Amendment, by leave, withdrawn.
Question proposed: "That Section 17 stand part of the Bill."

I should like to ask the Parliamentary Secretary, apropos of this whole question of the rights of mill owners and the rights which they will be entitled to have assessed, if mill owners have a statutory right to maintain the water level at a certain point. If that be so, and if the mill owner takes upon himself the liberty to raise the level higher than he is entitled to by statute, is that a matter that can be taken into consideration in assessing the value of the rights which are being taken away? In the district in which both of us are interested I am aware that it is claimed that a mill owner has been responsible for considerable flooding at times. Every time we have a heavy fall of rain local farmers have to get out of their beds in the early hours of the morning to raise the sluice gates to permit the water to flow away, otherwise hundreds of acres would be flooded. Apart from the ordinary work being done at the mill, I understand that other activities have been engaged in recently, even to the extent of developing electricity, and the suggestion, I understand, is that the level of the water has actually been raised to do that.

The position with regard to the law in that particular area is so difficult and complicated that nobody seems to know anything about it. So far as I am concerned, I am completely befogged by it, and I have been hearing about this matter since I was a boy. The Parliamentary Secretary must realise what the position is. I may say it is the cause of considerable disturbance of mind in that district. I am sure the Parliamentary Secretary is aware that what I am telling the House is a fact. What I have referred to has taken place on numerous occasions. What will the position be in the future? While raising that matter, I do not want to be taken as in any way desiring to interfere with an equitable assessment of the rights of people who have used water in the past for any sort of industrial purpose. But when we claim equity for the people who have rights, no man ought to be in a position to get payment for something he was not entitled to enjoy.

I could not answer that question; I do not know.

Will the Parliamentary Secretary look into the matter?

I know a number of areas in which complaints have been made.


Yes, and portions of neighbouring counties. I feel somewhat suspicious that many mill owners have, through usage, built up for themselves rights that they did not legally enjoy. Perhaps, through usage, they were able to manipulate sluices and weirs to the detriment of the land holders around, and may be none of the landowners was sufficiently strong to challenge the actions of these mill owners and, as a result, damage has been done, perhaps, and harm wrought to farmers in the locality. What the position is in relation to the area the Senator has in mind, or any other area, I am not able to say. I know it is a very complicated, tricky and irksome business, but I am not able to throw any light on the matter.

Is there such a thing in the drainage law as statutory levels fixed? Will the Parliamentary Secretary look into that and perhaps clarify the position on the Final Stage of the Bill?

Question put and agreed to.
Section 18 and 19 agreed to.
Question proposed: "That Section 20 stand part of the Bill."

On Section 20, has the Parliamentary Secretary considered putting into this section some sort of provision similar to that which the Minister for Industry and Commerce incorporated in the recent Transport Act, under which such land would first be offered to the adjoining owners? The Minister for Industry and Commerce put a provision into the Transport Act to the effect that where a line was being closed by Córas Iompair Éireann it had to be offered first to the persons on both sides before it would go into the open market. This House felt that that was a very wise provision, one which would prevent future trouble in an area. I wonder whether something similar could not be done here.

How could we offer it to anyone if we did not own it?

I take it that you will have land that you will not require —surplus land.

There may be cases in which we would have land that we would not require at all.

If the Parliamentary Secretary looks at sub-section (2) he will see "All (if any) lands"...

"... easements, fisheries, water-rights, navigation-rights and other rights".

The proposal is to sell surplus lands.

We are free to dispose of them.

If you are free to dispose of them, why not offer them to the adjoining owners? Take the case where across particular land there is an easement that is surplus to your needs. I suggest that easement should first be offered to the man across whose land the easement runs. Give him the opportunity of acquiring it.

It is hardly likely you would find any other purchaser for it.

The Minister for Industry and Commerce felt differently and he provided a specific remedy. I think the Parliamentary Secretary should provide a specific remedy here such as was provided in the Transport Act.

I think, in the case of lands that are acquired in this manner, we are entitled to leave ourselves free to dispose of them as we think necessary. That does not prevent us doing as the Senator suggests.

The Minister for Industry and Commerce took the same view. For instance, the railway company took land over which a branch line ran. They paid for it and they were going to sell it back to some member of the public. The Minister for Industry and Commerce took the view that if it was to be sold to some member of the public it might cause a great deal of local trouble unless it was first offered to neighbours, unless the neighbours got an option to buy it. I think exactly the same thing should be done here.

I think there is very little similarity between land acquired for the purpose of a railway and lands, easements, fisheries, water-rights, navigation-rights and other rights which are acquired by the commissioners in connection with a drainage scheme. It is quite simple in the case of land that is surplus in connection with a railway to re-convey that land to an adjoining owner. It is quite simple under the Labourers Acts, where sites are acquired for labourers' cottages and, later, are not required, to offer those sites in the first instance to the owner from whom they were acquired. It is difficult in this case to find a person to whom the commissioners could offer water-rights and navigation-rights and easements, assuming such rights and easements could be sold in gross at all in connection with a drainage scheme.

I think the section is quite sufficient as it stands. It will rarely be used. It gives the commissioners power to dispose of these rights if they are saleable. They may not be saleable at all. There is no analogy between the provision in the Act relating to Córas Iompair Éireann and the provision in this Bill. There is no analogy between the procedure under the Labourers Acts and the procedure under this Bill. No useful purpose would be served by the suggestion put forward by Senator Sweetman.

I differ with that view completely.

Question put and agreed to.
Question proposed: "That Section 21 stand part of the Bill."

On Section 21, could we have some explanation as to what is intended by the fixing of an appointed day? It seems to me that in the normal way a Bill of this kind, when passed through both Houses, would automatically come into force. Power is taken in Section 21 to fix an appointed day for the purposes of Part III. I wonder what he has in mind. Would the Parliamentary Secretary tell us if it is proposed to take special power to fix the appointed day?

We are asking county councils on the appointed day to take charge of certain districts and we afford them certain protection. I should say that most of these districts are in a bad condition. They have been neglected for many years, but the riparian owners had no mark. Now we are transferring them to the county councils and the riparian owners will in future have a mark for damages for neglect. We think it only right and fair that county councils, while being asked to maintain these districts, should not be left open to a legal action in certain circumstances. We, therefore, have to inspect these districts, to take a record of their present condition so that when they are being transferred to the county councils we will be able to certify in court as to the condition of those districts prior to their being handed over. That will be a sufficient answer to those who will seek damages from county councils because of failure to maintain something which had not been their responsibility.

Would the Parliamentary Secretary give an indication to the House of how soon it will be possible for him to fix the appointed day?

Very quickly.

What does the Parliamentary Secretary mean by that?

I am not committing myself, but I hope we shall be able to fix the appointed day by the 1st April or the 31st March.

Of this year?

Does that mean that county councils must make provision for maintenance in the rates for this year?

It is a very long time since any provision was made for these districts and I do not think there will be any urgency about making provision in this year's rates.

It is not a question then that arises for the rating authorities this year?

I do not know when and where it will arise for them. It is a matter first of all of fixing the day after which their responsibility for maintenance will commence. As I have said, in many of these districts no maintenance has been carried out for a long time, and the county councils are not legally entitled to maintain them in any better condition than that in which they will be handed over, but, as I said in the Dáil, I hope that a better standard will be set up by the councils and that they will gradually try to get them into a reasonable condition.

There is just one other point which arises on this section. Part III of the Bill deals with existing drainage districts. I think it was made clear yesterday that there are districts which do not fall within the definition of an existing drainage district, as provided in the Bill, that is to say, districts not wholly situated within the State. I was wondering, in view of what the Parliamentary Secretary has now stated regarding the neglect of existing authorities to carry out drainage work, what steps will be taken to ensure that the neglect will not continue in respect of drainage districts which are not existing drainage districts.

No legal steps can be taken against a local authority either by us or by anybody else to compel the local authority to maintain these districts at a higher standard than that at which they had been handed over.

With all respect, that is not the point. As I understand, an existing drainage district as defined in the Bill will become the charge of the county council, so that in future there is some assurance that drainage work will be carried on in respect of drainage districts covered by the Bill. I am anxious to know what powers there are or what authority will exist to ensure that drainage work will be carried on in existing drainage districts that will not come under the Bill. Is there any provision to ensure that those authorities will carry out the necessary maintenance?

None, except the courts.

Mr. P. O'Reilly

This is a matter I think that properly arises under this section. Having regard to the fact that certain districts or part of certain districts are to be exempt, surely there is some other way of dealing with the situation? I have been thinking since yesterday evening that it would have been possible for the Parliamentary Secretary to reconstruct existing drainage districts or to create new drainage districts under this Bill. For instance in the case of the Erne and the Ballinamore and Ballyconnel canal, would it not be possible to set up a new drainage district and hand the maintenance of that over to the county council? That, in my opinion, would solve the problem and that is what Senator Duffy has in mind.

Senator O'Reilly seems to be very optimistic as to the standard at which county councils will maintain these districts when they are handed over. I am glad to hear from a county councillor that expression of optimism because, mind you, the record of county councils in regard to the manner in which they discharge their responsibilities in relation to districts that have been for many years in their hands, is not so good. I must say that I am entirely pleased now to hear from a county councillor who is a member of the House that he expects that all will be well immediately these districts will be handed over to the county councils.

The Senator did not say that at all, in my judgement.

What he wanted to convey, as far as I could understand, was that he desired the reconstitution of certain areas so that these areas could be handed over for maintenance purposes to local authorities. If that did not mean the same thing, I should like to know what it does mean. I hope that his optimism will be justified by events in the future, but, mind you, having regard to the history of county councils in relation to the 150 or 160 districts they have been maintaining for a number of years, although I am hoping for the best, I am not hoping in such a way that I shall be disappointed if what the Senator expects does not happen.

I should like to express the hope that the Parliamentary Secretary will be in a position to fix the 31st March, or, if possible, the 1st March, as the appointed day, because there are very many of these drainage districts crying out for attention. It is perfectly true, as the Parliamentary Secretary has stated, that in some of the smaller districts county councils have been hampered and hindered in their efforts to attend to these districts. Once they set out to collect maintenance charges powerful organisations set out to thwart them. Sometimes you have the two leading political Parties joining together to come to county councils asking them to stay their hand. Then when times got bad it was quite a common thing to find that it was not an economic proposition to carry out such work. Immediately the people affected cry out to the councils with very great effect, because, of course, we councillors are just as responsive to local pull as a Deputy or a Senator is, and we will not go against a whole district if it can be avoided; but, apart from that, the carrying out of main drainage on schemes neglected by reason of the faults in recent Acts, should not be delayed for an hour longer than necessary, and I should like to see the Parliamentary Secretary in a position to operate this measure to-morrow, if it were possible.

Let us go back to the point raised by Senator Duffy and spoken to by Senator O'Reilly. Can we get definitely and explicitly on the records whether or not on the appointed day it will be possible to bring all the drainage in the areas of Cavan, Leitrim, Monaghan and other counties, parts of which are within the State and parts outside, under the authority of the respective county councils?

It will not.

I do not want to quarrel with the Parliamentary Secretary— none of us wants to do so on this matter—but what is to be said against the proposition that we could subdivide these drainage districts for the purpose of this Act so as to bring them under the authority of the particular county councils? So far as our schemes in County Cavan are concerned, I think they are not in too bad a condition. They are probably much worse in other counties. In the case of drainage districts under trustees, a fair effort has been made through the years to get work done and a certain amount of money has been spent, and quite possibly schemes in other districts in much worse condition than ours will be brought under the authority of the county councils. What is the objection to doing this? Could we not break it up in such a way as to enable us to administer the whole district under a county council?

We cannot.

If a district is handed over to a county council in an appallingly bad condition and the county surveyor and assistant county surveyors advise that the district cannot possibly be maintained, will such a scheme be put in a reasonably good condition so that the county council may be able to maintain it with fairness to the ratepayers? We had experience of a case of the sort and I hope to talk about it when we come to my amendment. We got a scheme which was operated for 42 years in an appallingly bad condition and the county surveyor said that no amount of maintenance could keep in repair a scheme which was fundamentally wrong. If such a scheme is handed over to us, must we maintain it, and, if so, who is to determine the cost of maintenance? It will not really be maintenance; it will be a question of startingde novo, because many of the banks have fallen in and in some cases have met in midstream. As I say, a scheme which had been neglected for 42 years was handed over to us by provisional Order, which said that we had got to do it.

I was about to express regret because of Senator Madden being held up in getting at the Mulkear and Cappamore section, but we will get there by degrees. With regard to the district which I believe the Senator has in mind, it was handed over without any reservation whatever. Under this section, districts in the hands of trustees and boards are being handed over to county councils, with the reservation that they will not legally be obliged to maintain them to a standard higher than that at which they were prior to being handed over. The situation there is substantially different from that which existed in relation to the district which Senator Madden has in mind, and in relation to which it was a legal obligation of the local authority to maintain the district properly without reservation of any kind.

The Parliamentary Secretary did not address himself to the point. Surely the House is entitled to know what the position is on this question which is perhaps rather involved but which is very important. Let me go back to the original matter of the Lough Gowna, Lough Oughter and Erne drainage district. The middle portion is under the authority of the county council at the moment because money was spent on it in recent years under the 1925 Act by the Commissioners of Public Works. In the upper reaches of the river, the drainage is under the authority of a drainage board. At another point further down, the Ballinamore and Ballyconnell canal, in which Senator O'Reilly is also interested, is partly in Cavan and partly in Leitrim and is in the charge of drainage trustees. I gather from the Parliamentary Secretary that we are not making it possible for these schemes at present under the authority of drainage boards or trustees to come under the administration of the county council on the appointed day. We ask the Parliamentary Secretary why it is not possible for us to legislate in this Act so that so much of it as is in a particular county will come under the administrative authority of that particular county. It will relieve our minds if we can be told why we are not doing it. Is it that we cannot do it? I cannot understand why that should be so, as I thought we were sovereign and had the authority to do it.

Would this discussion not be more relevant to Section 57, which deals with drainage districts partly outside the State?

It does not matter at what point we get the answer, so long as we get it.

I agree that the discussion has taken a course which seems wide of this section. The matter would be more strictly relevant on another section, Section 57, on which it can be raised when it comes before us.

I think the trouble is in Senator Madden's mind. The Bill does provide that a county council will not have to maintain a drainage district in a better condition than that it is in, but Senator Madden seems to contemplate that a county council may get a scheme, the embankments of which might be in danger of breaking down. If they were likely to break down, it would mean extra cost for the council to maintain them, even in the condition in which they were before being handed over. Would the Parliamentary Secretary consider it advisable to fix a different appointed day for different drainage districts?

No. How would we do that? Would that not be the very thing for which public opinion would eat us? They are all naturally anxious to have these districts transferred and to have them subject to a flat rate in the county for maintenance purposes, and if we were to transfer one district in Galway, the people in Mayo would get on their high horses because their drainage district was not transferred.

I appreciate that. Would the Parliamentary Secretary consider the advisability of giving some protection to councils in the event of such a thing happening?

They are protected.

They are protected in so far as they are only bound to provide for maintenance to the extent to which it is handed over; but suppose embankments crumble: would such a thing be taken into consideration?

We will have a record when they are being transferred.

Yes, I see that.

And in that case, if they were in a bad condition and somebody were to seek damages, our certificate would be regarded as satisfactory, as showing the condition in which the thing was when it was handed over.

That is the embankment?

Very good. I understand that.

Section 21 put and agreed to.
Question proposed: That Section 22 stand part of the Bill.

On Section 22, Sir, I desire to ask for some information, because I do not quite follow what is proposed. Sub-section (1) of the section proposed the abolition of drainage rates, but there is a saving condition there which seems to be related to sub-sections (2) and (3). I do not quite follow what is meant by sub-section (2), which says that

"nothing contained in sub-section (1) of the section or the River Owenmore Drainage Act, 1926, shall be deemed to limit the amount of any moneys to be raised by virtue of the said sub-section (1) in respect of the River Owenmore Drainage District by means of the poor rate."

Does that mean that the county council will still continue to levy a drainage rate on benefited land?

No, it does not. There is no question of providing that benefited land will pay any rate other than the flat rate of the county.

Will the Parliamentary Secretary say why there is that saving condition in sub-section (1) in respect of sub-section (2)?

Because there was a limit in the River Owenmore Drainage Act as to what they could raise by means of a rate.

That is, what they could raise on the poor rate?

Section 22 put and agreed to.

I move amendment No. 20:—

In sub-section (1), page 16, lines 3-4, to delete the words "by means of the poor rate as a county-at-large charge" and substitute the words "as to 70 per cent. of the amount of such expenses from the benefited occupiers and as to the remaining 30 per cent. by means of the poor rate as a county-at-large charge".

This amendment is a recommendation, or was a recommendation, of the Drainage Commission which, for certain defined reasons, was not considered helpful to the success of the drainage scheme. Now, county-at-large rating is by no means popular, and no matter how much some of us may feel in its favour, whenever a question is raised in local bodies there is always almost unanimous opposition by the agricultural representatives, so far as county-at-large rating is concerned. Because of that, in the district of the county that I come from, such amenities as waterworks, sewerage, and public lighting in towns are the main responsibility of those who directly benefit by these amenities, and the charge for their installation, and maintenance when installed, is invariably a local charge. Now, many towns have been denied such benefits because their borrowing power was not sufficient to raise the amount of money required, and even when that cost is ment by the public bodies concerned, in an effort to give their people the hygienic conditions to which they are entitled, and the absence of which many towns suffer from, there is no response, and county-at-large rating is opposed. Because of that, I hold that it would be very unfair to inflict on non-agricultural ratepayers the cost of the maintenance of a scheme from which they derive no direct benefit.

We all know that property in towns is rated very highly, and it could happen, and would happen if this section is not amended, that ratepayers in the town would be paying far more towards the maintenance of the drainage scheme, even though they have no land at all, than people in the same area who have substantial holdings of land. I am quite aware, of course, that some land is too poor to bear a drainage rate, and the Drainage Commission adverted to that when they recommended that 30 per cent. of the charge would be a county-at-large charge and that 70 per cent. would be contributed by those who directly benefited as a result of the drainage scheme. I think it is most unfair that people who have no land at all should be called upon to pay a very heavy rate. That certainly will be the consequence of the maintenance that will be necessary under the drainage schemes, and I am afraid that that is what will happen if this section should go through unamended. If it goes through unamended, I think you will have an agitation in the different towns where people will object to paying for schemes from which they derive no immediate benefit, whereas they themselves are deprived of certain amenities because the people in the agricultural areas will not agree to a county-at-large charge, because, having enjoyed these amenities, they have to pay the whole cost of them. The object of this amendment is to maintain a fair balance.

If I could visualise an early situation where county-at-large rating would be acceptable, I would not have tabled this amendment, but I should like to be fair to all concerned, and it is because I know that the principle of county-at-large rating is not acceptable to the people who will directly benefit from the drainage scheme, and also because I visualise circumstances where town ratepayers, if they have to bear a county-at-large rate, will agitate to have such works as sewerage, waterworks and public lighting made a county-at-large charge also, that I have put down this amendment. I think that you cannot have it both ways, and that if people in the non-agricultural areas have to pay for things that do not directly benefit them, then there should be some co-operation from the people in the agricultural areas who are directly benefiting by the scheme.

I am not sure, but I think that Senator Ruane must be a townsman. I think he is a member of a local authority in County Mayo and that he has been a member of the county council in Mayo for a number of years. I am not sure of that, however, nor do I know what the particular conditions are in County Mayo in relation to public schemes such as waterworks, sewerage and public lighting, but I do remember, when I was a member of a county council, having to fight very strenuously to secure from the local body concerned the acceptance of a flat rate for the provision of water and sewerage schemes in the towns. For some years there has been a policy all over the country, so far as county councils are concerned, of requiring the countrymen and the fellow who has to wade through water to save his crops from flooding, to contribute on a flat rate in order to provide water and sewerage for the townsman. Is it not equitable, therefore, to ask the townsman to give some relief to the man in the country whose crops are in danger? I do not think there is anything wrong in that. I think that the principle of looking to the county as a unit and asking the people of the county, whether townsmen or countymen, whether farmers or labourers, to stand together and provide themselves with desirable amenities, is sound. Even if this were not a Government decision. I should personally support it with all the enthusiasm I could command. Since the Government has approved resistance to an amendment of this kind, I have to resist it. Even if I had not Government approval, I should try to get approval so as to defeat it.

I am in favour of a flat rate but, within the past eight or ten days, a very comprehensive scheme was brought forward in County Mayo— a scheme which would give sewerage and water supply to areas that had not got them and which would provide for an extension to other areas. The agricultural community would derive a certain measure of benefit because they would be able to provide themselves with water in areas where there was a scarcity of water in the summer time. Representatives from the agricultural areas consulted their constituents and unanimously opposed the scheme, which was, certainly, a very good one. I am in favour of a flat rate but I am just voicing the views of those people. I do not want to press this amendment. I have made the point I wish to make. It is not exactly my own point but that of my colleagues.

I ask Senator Ruane to withdraw his amendment. With practically everything the Parliamentary Secretary has said, I am in thorough agreement. I only regret that it is coming some years too late. We, in the country, have been wading through muck and mire, while, in the towns, there are cemented channels to carry off the water, so that boots are almost superfluous. On the other hand, heavy men, like myself, find themselves in difficulties in the country. I think that the opposition of the Parliamentary Secretary to small parochial rates in this matter is very sound and I should like to support him in every way.

While Senator Ruane's amendment would do harm, there is something in the view he has expressed —that a situation could arise in a county council in which the agricultural community, having been benefited by a scheme of drainage or some such scheme for which a county rate was struck, their representatives would outvote the other members of the council when a question of providing sewerage for a town at the expense of the ratepayers of the county would come up. Situations of that kind are likely to crop up from time to time. Some people will have regard to self-interest only and will not consider the general welfare. There is a considerable tendency of late to class thought and people in public life, particularly, who are more or less leaders of thought among the different sections of the community, would, if they had a proper sense of regard for their own position and the general welfare of the country, divert the thoughts of the people from such channels. Some effort should be made to avoid a position in councils whereby rates would be struck for one section of the community and fail to be struck for another section and the general view expressed by Senator Ruane is a very good one. These issues are bound to arise and, if anything could be done to avoid them, it would be desirable.

The wording of this amendment does not follow the report of the Drainage Commission, because the Drainage Commission recommended, not that the benefited occupiers should pay 70 per cent. of the cost of maintenance, but 70 per cent. of the improved value of their land. It occurred to me while Senator Ruane was speaking that the trouble was, in spite of what Senator McEllin has said, with his own county and did not arise out of this Bill. The Mayo County Council should put their public health service on some flat rate and we should not be asked to alter the Arterial Drainage Bill.

I understand that Mayo County Council quite recently struck a flat rate and, if my information is correct, a small town in Mayo, with 300 inhabitants, will, in consequence, benefit to the extent of about £13,000 in respect of lighting and sanitation. While the motion was opposed, it was carried by a majority. If the farmers of County Mayo are contributing towards the cost of lighting and other amenities in towns in the county, it is only fair that the townspeople should contribute to the welfare of the farming community. Apart from anything else, the towns should do that out of regard for their own welfare. Seeing that they are entirely dependent on the patronage and support of the farming community, they should be generous to the farmers.

I was thinking that the businessmen of County Mayo had more influence on Mayo County Council than some Senators would have us believe.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.

Mr. P. O'Reilly

I move amendment No. 22:—

In page 17, after sub-section (5) to insert the following new sub-sections:

(6) For the purpose of the maintenance by the council of a county or the councils of counties (as the case may be) of any drainage works in pursuance of this section, it shall be lawful for the said council or councils to do any of the following things, that is to say:—

(a) enter on any land and there do all such things as shall be necessary for or incidental to such maintenance;

(b) take from any land all sods and other material required for the purposes of such maintenance;

(c) deposit on any land all spoil and other material produced in course of such maintenance;

(d) utilise for the purpose of maintenance, or for any purpose deemed proper or expedient, all or any spoil, gravel, stone, rock or other material removed to or deposited on any land in the course of such maintenance;

(e) do all such acts and things as shall, in the opinion of the said council or councils, be necessary or proper for the efficient carrying out of such maintenance.

(7) In addition and without prejudice to the general powers conferred on the council of a county or councils of counties (as the case may be) by the foregoing sub-sections of this section, it shall be lawful for the said council or councils to do all or any of the following things, that is to say:—

(a) execute such improvements and carry out such maintenance or repair to such drainage works as appear to the council or councils to be improvements capable of being regarded as effective maintenance;

(b) execute such maintenance and carry out such improvements or repair to an existing watercourse, situate wholly or in part, outside an existing drainage district as appear to the council or councils to be improvements capable of being regarded as effective maintenance.

The Parliamentary Secretary will, probably, say, again, that I am an optimist because I move this amendment. I want to ensure that local authorities will be given ample power under the Act to carry out effective maintenance of the drainage districts transferred to them after the appointed day. I feel that the county councils will be charged with the responsibility of maintaining the drainage districts for a long time after the appointed day. It has been indicated to me—I do not know exactly where I got the idea, perhaps it was from the Parliamentary Secretary, as regards the spending of £7,000,000 at £300,000 a year—that the county councils may be responsible for the maintenance of drainage districts for possibly 20 years. If there is to be any measure of relief given to the unfortunate people whose lands were continually flooded under the existing system of drainage board and trustees, the county councils will be forced to do effective maintenance, whether they like it or not. I may be an optimist in thinking that the county councils will do that. I think, at the same time, that the people who pay the rates will create such an agitation that they will pull down the county council chambers if effective relief is not given to them. Therefore, I am seeking in this amendment to ensure that the local authorities will have power to do effective maintenance.

In the first new paragraph of my amendment I am doing no more than this: I am seeking to give the same power to the county councils that is being given to the commissioners under, I think, Section 38 of the Bill. In that section we have set out the powers and functions that the commissioners will have in regard to maintenance after reconstruction has been carried out, as well as in regard to maintenance of districts taken over by compulsory order should a county council or county councils fail to maintain them. The only difference between the powers set out in Section 38 and those proposed in the first part of my amendment is that the local authorities are given power to use material such as gravel for any purpose other than maintenance. The idea there is that gravel or stone taken from a stream by a county council could be used by it for the maintenance of a public road. I think that is quite reasonable. In the second sub-section of my amendment, I am seeking to give to the local authority power to carry out such improvements as would be necessary to ensure effective drainage. I take it that all the power that the drainage boards have at the moment is to put grass along a stream and let it pass away with the flood, and thereby create greater obstructions elsewhere. The commissioners are being given power to carry out such improvements as they regard as effective drainage. I can see no reason why powers of the same kind should not be conferred on the local authorities, especially in view of the fact that the commissioners feel such powers are necessary in their own case.

I may be an optimist in feeling that the local authorities will spend money for the purpose of carrying out effective maintenance. I would like to see that happen, and, so, I am sure, would the Parliamentary Secretary. If the county councils have not done that, I suggest that there must be some reason for it. One was that the money had to be found by that section of the people affected by way of a tax on their lands which had been improved, or that were likely to be improved. I am not undertaking to give an estimate, but I think we all agree that the cost of drainage can be ten times or, possibly, 20 or 30 times greater than the value of the lands improved. If you had a surplus of land, I agree that it would be better to buy land and not have drainage at all. The fact is that we have not. Since the cost of draining land may be 20 or 30 times greater than the value of the lands improved, a farm may be rendered uneconomic by the fact that the low-lying parts of it, suitable for cropping or meadowing, become unusable because of the flooding. That, as I say, renders a farm uneconomic. The position is that you cannot take people out of the flooded areas and give them land elsewhere. At the moment local authorities have to raise large sums of money for public health and other local services. In a county, for example, where it is not possible to raise a very great sum without having to strike an exorbitant rate, a local authority may find it very hard to raise a sum sufficient to do effective maintenance, no matter how anxious it may be to do that work, unless the charge is a county-at-large one. For that reason I am glad that the previous amendment was withdrawn. We all accept the position now that drainage is to be regarded as a national matter, and that it will be the responsibility of all the people, in the interests of a section, to carry out drainage. I hope that both the Parliamentary Secretary and the House will accept this amendment. Otherwise, no matter how wishful a local authority may be to carry out effective drainage it will, I suggest, be very seriously hampered. I hope that the Parliamentary Secretary will at least accept the principle of the amendment.

There is first of all the question of improvement, and, secondly, the question of maintenance. I imagine that a local council to whom drainage is transferred will not make improvements because they will say to themselves: "In a short time the commissioners will take this over and do the work, and, therefore, we will not put the expense on the council". They will not do the improvement work unless they are paid for doing it.

Would the Senator repeat that?

They may maintain but they will not do improvements because if these improvement charges are payable out of the poor rate they will say to themselves that the commissioners will come along and do the work at some future time. Therefore, there is no inducement to them to do improvement works unless the commissioners give them sufficient money for doing them. If something on that line could be added to the amendment it might do good. It might induce local councils to carry out improvement works, provided the commissioners supplied the money.

This amendment seeks to do two things. The first is to give county councils adequate power to maintain. We believe that they have already got that. They will have the same power to maintain that was given to the boards and trustees under the Acts by which the drainage districts were created. I am advised that these powers will be transferred to them as well as responsibility for the districts. The second portion of the amendment seeks to give the county councils power to carry out works in addition to those specified in the final award when the district was first constituted. I want to say to Senator O'Reilly and other Senators that, apart altogether from the complicated situation that would arise as a result of the acceptance of the amendment, they may be assured that there is an enormous amount of work to be done in bringing these districts, so far as maintenance is concerned, up to anything approaching a reasonable standard. That is, apart altogether from any question of reconstruction. I would be expecting county councils to reach a most efficient stage in five or ten years, and to remove the ill-effects of the neglect that has accrued over a period of years. The second portion of the amendment would prove to be an enormous source of embarrassment to county councils if we were foolish enough to give them the power suggested. I am glad to notice such enthusiasm about this question. I hope that enthusiasm will develop throughout the country. As members of this House and of the other House are connected with county councils, I tell them that I will do everything I can to seek the highest standard of maintenance that it is possible to maintain. If we can get that standard, I think we will be doing well enough without going any further, and for that reason I am not prepared to consider the second portion of the amendment at all.

I do not know that the House could entertain all that is proposed in the first paragraph of the amendment:—

"utilise for the purpose of maintenance, or for any purpose deemed proper or expedient, all or any spoil, gravel, stone," etc.

I am afraid, instead of being termed an optimist, that if Senator O'Reilly succeeded in getting such a provision inserted he would be given another name in a short time.

Mr. P. O'Reilly

There must be some misunderstanding about this. While the powers that it is proposed to give in the second part of the amendment may appear to be wide, what is intended is that county councils would have power to do such work as would ensure that other maintenance work which had been done would be effective. There is no use in asking county councils in a general way to maintain a stream if, by the expenditure of a small sum on improvements at a particular point, the whole system could be improved and flooding prevented. The Parliamentary Secretary seems to take the view that the amendment suggests that county councils should start carrying out such work as was intended to be carried out by the commissioners after the passing of the Bill. That is not my intention. As Senator O'Dea pointed out, whether we like it or not, it will be some time before the commissioners can come along with an effective drainage scheme and put it into operation. I have no great hope of an effective scheme being carried out in any area for a very long time. Seeing that local authorities are going to be asked to spend money on maintenance —and the Parliamentary Secretary hopes they will spend money on such work—I suggest it is going to be spent in a way that will prevent effective results being secured. The proposal in the second portion of the amendment is the important one, to ensure that local authorities will have power to do such work as they consider will produce good results for the money spent. That is what is intended. While I did not actually hear what Senator P.J. O'Reilly said, I take it that he has some objection to power being given to county councils to

"utilise all or any spoil, gravel, stone, rock or other material removed to or deposited on any land in the course of such maintenance".

When local authorities spend money on maintenance work or in removing rock or gravel from a water course I see no reason why they might not deposit it on land. It might happen that that material would be of no value for maintenance purposes at other points, but might be used on county roads. A local authority that spends money and that deposits gravel on land should have the right to use it for any purpose considered proper. I see no reason why the second portion of the amendment should not be accepted, seeing that it would give county councils power to ensure that the best results would be obtained for the money spent.

There is no use in making that kind of case. If the Senator cannot be influenced to believe that it is unworkable I cannot help him. What about the legal position of Leitrim County Council? I take it that the Senator would mind if a shower of actions descended upon it to answer certain charges in the High Court. These may seem to be trivial matters. When I told the Senator that his proposal is not workable, I should state that the powers he seeks to give county councils are already provided as far as we are aware. If not, I shall look into the matter again. The amendment seeks also to give power to carry out new works. If councils proceed to do that, they will be getting themselves into trouble, and very expensive trouble. I am sure Senator O'Reilly or any other Senator would not like that to happen.

Mr. P. O'Reilly

Then I ask leave to withdraw the amendment. I take it that the first part is being accepted.

The first part is unnecessary.

Amendment, by leave, withdrawn.
Section 23 agreed to.

I move amendment No. 23:—

In sub-section (1) to add at the end of the sub-section the following words: "and such council or councils shall also be empowered to make to the Minister an application for an Order for a similar transfer to the commissioners".

This section deals with maintenance transfer orders. It provides that

"the Minister may by Order, on the application of the commissioners, transfer to the commissioners from a specified date the control and management of any existing drainage district...."

This matter was raised on the Second Reading. In the section as it stands it is open to the commissioners to make application to the Minister to have the control and management of a particular district transferred to them.

I am asking that such council or councils shall also be empowered to make to the Minister application for an Order for a similar transfer to the commissioners. The Parliamentary Secretary in discussing this matter on the Second Reading pointed to the intention of the commissioners to ask for the transfer of districts to them when they had actually gone in there and had done work in the district, or had done certain work in the district. Other districts that were being maintained and only required to be maintained, would also be transferred to them on their application to the Minister. I think a number of county councils would be anxious to have the right to ask the Minister to transfer to the commissioners the control and management of drainage districts, for various reasons. For instance, let us take the particular district which I have in mind, namely, the Erne. The proper maintenance of that district at the moment, where work has already been done, is in fact possible only by the Commissioners of Public Works or some authority having very considerable equipment in their possession. It is conceivable that work might be in progress in adjoining counties and the distance to be covered in transferring equipment would be not very considerable and it would be possible for the work to be carried out by the commissioners at a reasonable cost.

I think it is only fair that county councils who have under their control the management and maintenance of a district where the work to be performed is of considerable magnitude should have the right to ask for the transfer of this task to the Commissioners of Public Works. In the particular district I have in mind the constructional work was carried out in such a way and at such a season of the year that a considerable amount of dredging remains to be done. Definitely, there will be considerable deterioration in the district unless the work is undertaken within a reasonable time. I do not know how that is to be done unless the commissioners are prepared to undertake it.

Speaking generally, county councils who have the responsibility of maintaining a district and who feel that the task is almost beyond them should have the right to make application to the Minister for a transfer order. Naturally, such a question would be a matter for consultation and discussion between the Minister and the commissioners and if the commissioners saw any reason why the order should not be made, obviously, the Minister would scarcely comply with the request of the county council, but I do think it is a right that should not be denied to county councils, and I am asking the House to accept the amendment.

I have not the slightest doubt that county councils would be very glad to get rid of the responsibility of maintenance, and if power to make application for a transfer order were vested in them, in the first week we would receive applications from all these county councils for such transfer orders. Either we intend to give them the legal power to apply for a transfer order and, once they apply, they cannot be refused, or we mean nothing. There is nothing in this section to prevent their requesting us to take over a district—nothing in the world—and, of course, we will consider it, but I must surely resist any proposal whatever to give to them the legal right to apply to have a district transferred from their responsibility to ours, for the very good reason that the time it would take to build up the necessary organisation and a number of other matters would have to be considered.

I appreciate that in certain districts, especially some that were reconstructed or partly reconstructed under the recent drainage law of this country, the equipment at present in the hands of county councils may not be adequate for the purpose of proper maintenance. That is an aspect of drainage maintenance that we will have to consider. I agree also that it would be unreasonable to expect county councils to acquire expensive machinery which would be required perhaps only for one month in the year, but we ought to be able to find some way out of that difficulty. That matter can be considered. We cannot consider giving to county councils the legal right to transfer, at their own will, any district from their responsibility to ours. We could not agree to that, but they are always free to say: "Here is a district and for such a reason it is awkward for us to maintain it." We will consider that, and if our organisation in the neighbourhood has reached such a condition as would enable us to take it over, then we will not be in any way hostile to considering the proposition favourably.

The Parliamentary Secretary's attitude is fair enough. He is meeting reasonably the problem I have in mind. He understands it. All I desire is that it will be the policy of the commissioners to meet cases where deterioration will definitely ensue if the districts cannot be attended to. I take it that so long as the county council can express the desire to have the district taken over, that that will be done. I do not mind whether the statutory right to ask the Minister to make a transfer order is conceded or not. All I want is that cognisance will be taken of the matter and that burdens will not be left on the shoulders of county councils that are beyond their capacity to bear.

We will consider all these matters very sympathetically but I could not concede the legal right.

I am satisfied.

Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 and 26 agreed to.
Question proposed: "That Section 27 stand part of the Bill."

On the section I should like to get a little matter cleared up. Under the existing Barrow drainage legislation the County Councils of Kildare, Leix and Offaly were liable for approximately £6,000 each. Under this section the three county councils have to pay £7,154, that is an average of £2,385, if you average it evenly but, of course, you do not average it evenly. Have they to pay in addition to that the proportionate share of maintenance, which was estimated at £6,500?

They have—to which we contributed.

You contributed half before, I know; now you are not contributing half?

That is right.

In fact, what this will mean to my own county is that we will have to pay £2,300 or £2,400, which is roughly one-third of the figure here, plus one-third of £6,500 as maintenance. It means that we will be approximately £2,000 a year better off, assuming that £6,500, which was the old maintenance figure, will be the same figure in the future. I am afraid it will be more. Is not that, roughly, the way it will work out?

That is right.

Question put and agreed to.
The following amendments, Nos. 24 and 25, were in the name of Senator Sweetman:—
24. In sub-section (2), after paragraph (a), to insert a new paragraph as follows:—
(b) No remission made by a responsible council under the preceding paragraph shall be effective unless and until the order made by the county manager, in pursuance of the County Management Act, 1940, authorising such remission, shall be confirmed by a resolution of the council and the passing of such resolution shall be a reserved function under Section 16 of the said County Management Act, 1940.
25. In sub-section (2), after paragraph (a), to insert a new paragraph as follows:—
(b) No remission shall be made by a responsible council under the preceding paragraph unless such remission applies equally to every person liable to pay such drainage rate or drainage charge and in case the effect of any such remission is that any individual has already paid more than the arrears remitted, the excess so paid shall be allowed by such responsible council to such person as a deduction from the next demand for poor rate made on such person.

I move amendment No. 24. The point of this amendment is fairly clear from the wording of it.

Will we take the two of those together? They both deal with the same matter.

I am quite prepared to discuss the two of them together, but I might want to deal with the question of decision differently. So far as the first amendment is concerned, my point of view is fairly clearly the same as what the Parliamentary Secretary mentioned last night. I believe that a wise county manager would not make a remission without going to the council concerned, because the council would be the people who would have to pay the piper at the end, but, unfortunately, all county managers are not wise county managers. In connection with the remission of poor rates, we had in Kildare two very interesting examples, and I want to ensure that the same thing cannot happen in this case. Our first county manager decided that he would write off a certain amount of arrears of poor rate as irrecoverable. He did that, without any reference to the elected council at all, absolutelybona fide, just purely because he did not know local conditions. In one case, he wrote off arrears of rates due by the mother of the rate collector concerned. He wrote them off having had the advice of the rate collector concerned that the amount was not fully recoverable. In the second instance, he wrote off rates in a case where there was a very substantial yearly pension going into the particular house from public funds. In both those cases, if he had come to the local representatives we would have known the facts. It just happened that I knew about both cases. I am not suggesting, in this amendment of mine, that I want to put the initiation of remission into the hands of the elected council, but I am suggesting that, when the county manager has made up his mind about what is the correct procedure to adopt, he should then come with his proposal to the council, and that the council could, if you like, abridge but not enlarge that proposal. The House will note that I have made a very distinct difference between the power of remission and the power to give whatever time may be necessary—the power, in the words of the section as it stands, to make “such concession as they shall think proper in regard to the mode or time of payment of any such arrears”. I think that is obviously a matter of executive detail which should be left with the county manager, but so far as actual remission is concerned I submit that it should come before the elected council, so that they can consider it from the angle of their knowledge.

So far as the second amendment is concerned, the principle involved is one which I consider absolutely fundamental. It is, I am afraid, a fact that the standard of public morality and public thought as regards the payment of just debts to the State is declining and has declined in recent years. I want to ensure that there will be nothing enshrined in this Bill which will mean that the man who tried to best the local authority or the Drainage Board will get away with it. If any man, through misfortune, has been unable to pay what was due, then I am entirely in agreement that every proper and reasonable concession should be made and should be given to him to enable him to pay that amount over a period of years, or in such manner as seems desirable. But I do think—and I have met this case specifically in the last three weeks— that if you enshrine in legislation the principle that the man who has not paid stands a chance of getting his arrears remitted, while the man who has paid gets no benefit, then you will inevitably slow up for the future the payment of any rates to any local or national authority. When last year, after six years in which nothing very much had been done towards the collection of the Barrow drainage rate, an effort was made to collect the rate suddenly, I took the view very strongly —I still take it—that, unless a principle such as that which is involved in this second amendment were adopted, by pressing for an immediate collection you would penalise the decent people, the people who were trying to do what they could in the way of payment. In the last fortnight, I have been down in the Barrow area twice. On each occasion, I was approached by people who are substantial ratepayers, and in each case their grouse was not that they were being asked to pay the Barrow drainage rate, but that they were being asked and that other people were not being pressed quite so hard; that, if they paid before the Bill became law, they would have to suffer, and the other people would get away with it.

It is to avoid that, to avoid putting a premium on laggardness in the discharge of the debts due to a local authority, and in an attempt to ensure that some sort of headline would be set in the future, that I have put down that amendment, the effect of which is that each local authority must consider whether the rate charged for a particular works on particular people up to the appointed date was a fair rate. If they decide that it was a fair rate, then there will be no question of remission, but there will be every question of anyone who has had misfortune getting all the time he wants to discharge what is due. If on the other hand the local authority should decide that the charge was not altogether fair, then they can make such adjustments such as they like, but they must make those adjustments for everybody, so that what is sauce for the goose will also be sauce for the gander. If the Parliamentary Secretary dislikes the wording of the amendment, I would urge him to alter it, but to accept the principle behind it.

I support very strongly the spirit of Senator Sweetman's amendment. I wonder that this matter has not been raised before. Looking back upon the history of debtors in this country, the lax morality in that regard is deplorable. It has become notorious that, if you have the conscience or the lack of conscience to become a defaulter, it is more than likely you will get away with it, under some whitewashing scheme, through legislation. The whole of the history of the land legislation is full of that kind of principle.

Let us not go into that now.

Even now, at last, it is only right for the sake of decency in regard to public and private indebtedness that people should square up to this. Senator Sweetman has done great service in bringing forward this matter and in attempting to obtain a proper standard of financial integrity, to get these settlements of debt placed at least on an equitable basis.

For the reasons given by Senator Sweetman, I think there is everything to be said for this amendment. At the same time, I challenge the interpretation which Senator Keane puts upon the motives and intentions of Senator Sweetman. I really do not think our people are as dishonest as that.

Oh, do you not?

I know very well they are not, but we will not go into the question of dishonesty now.

An Leas-Chathaoirleach

No, better deal with the amendment.

The problem that county councils are confronted with in this matter is very difficult. It is going to precipitate a very peculiar position in my own county. I do not know whether the Parliamentary Secretary is aware of it or not, but I understand that in the last couple of weeks no less than 1,200 demands have gone out to drainage ratepayers, some of them dating back for 20 years. In the first place, I do not know how long a drainage rate is collectable.

Neither does the Parliamentary Secretary.

Senator Sweetman would tell you.

Mr. P. O'Reilly

The Statute of Limitations does not apply.

The drainage ratepayers ask why they should pay rates when the drainage work is not done.

Did some people pay?

Yes, some of them paid.

There you are.

Senator Sweetman is making provision for cases where they paid and did not get the service, or overpaid for the service that was given. He says that is reasonable enough and that the equities in the case should prevail. I agree that there are many people who, for one reason or another, like to get off, whether their debts are to the local authorities or to the Exchequer. Those people are not all farmers, and many who pay considerable sums in income-tax try by devious ways to get out of their responsibilities. They are in every station in life. That is not an unnatural attitude at all, but is quite understandable. The problem we are dealing with here is that of drainage ratepayers and the demands made upon them, and the position of local authorities when confronted with this task. The provision Senator Sweetman is asking for is a reasonable one and I believe the Parliamentary Secretary would make the position reasonably satisfactory from the point of view of the management and of the county council if he accepted the amendment.

In this amendment No. 24 Senator Sweetman asks me, in fact, to amend the County Management Act. That is something I am not going to do. However, we might discuss the amendment for the sake of meeting a few points which Senators have made. The Senator tries to provide here for confirmation by the council concerned and let us assume we are accepting this. To support his case, he cites two incidents which occurred in County Kildare during the regime of the first county manager. One of those was the case of a woman who was the mother of a rate collector, who was in arrears, and without consultation with anyone or knowing who the woman was, he struck out portion of the arrears. The second case was that of a rated person who had a pension and whose arrears were also struck out. The questions that occur to my mind are: When did the County Management Act come into force; when were county managers appointed; and when did Senator Sweetman become a member of Kildare County Council?

On the same day as that on which the county manager was appointed.

But if it had not been that way, I would have many things to say to you.

And I would not have mentioned it.

When I hear members of this House and the other House criticising the County Management Act—and these amendments are, in fact, a criticism of the provisions of the Act—I say to myself that it was the members of the local authorities who failed to discharge their duties properly who brought upon their heads and upon ours the terms of that Act. Why did the County Council of Kildare allow that situation to arise, over the period before there was a county manager? Why did they not see to it that their secretary made sure that these collectors would lodge the full amount of their warrants and that, if they were to get any refund, they should show the causes for such a refund?

I am not in any way wedded to many of the provisions of the County Management Act—I agree with it in the main—but I have no sympathy or patience with the criticism I hear directed against it here and in other places, as I know it was in many cases brought about by the failure of councils to do what they should have done. Even if I were to accept this amendment, does Senator Sweetman suggest that you can leave this matter entirely to the minds of three bodies— the Kildare, the Laoighis and the Offaly County Councils—and that you will get from them a reasonable degree of uniformity as to the manner in which these accumulated arrears will be treated?

This does not affect only the Barrow.

But the problem occurs mainly as a Barrow problem.

The Rathangan River is one of the other places.

If the Barrow problem were taken out of this whole campaign against the payment of drainage rate arrears, there would be very little campaigning. I would not be prepared to take the chance with the county councils concerned as to the manner in which they would act, having regard to the influences that would be brought to bear on them and to the fact that this was the closing of the account as it were. There would be pleas put forward to those county councils and people would say: "After all, it is to be a flat rate in future, with a national charge; why should you crucify me because I resisted payment of rates over the past six years, even though my neighbour paid them?" These pleas would have their effect on the members of the county councils concerned, and I have no doubt as to what the councils would do. For that reason alone, apart altogether from the fact that amendment No. 24 seeks to amend the County Management Act, I would resist this amendment.

As far as amendment No. 25 is concerned, I am not too happy about the power that is given here to county managers. Every feeling within me goes into revolt against the idea that people should be encouraged to think that they can, by hesitancy, by all sorts of reluctance and by campaigning, get away from paying a legitimate and lawful debt.

I would be the last man in the world to favour or in any way to take the risk that anybody else would have the power to favour people who would deliberately try to avoid paying their just debts. As a result of the discussion on the Second Reading and the discussion which has now taken place I am not too happy about giving the county managers the power of remission and I will ask the House to give me the opportunity, if I think fit and proper, of introducing an amendment by which they will be relieved of that power. I would be all in favour of trying to meet the case of people who have been induced or cajoled and, in some cases, perhaps even coerced into believing that they could, by withholding these moneys, get out of their responsibility and to whom the accumulation of six or seven years' arrears presents a very definite problem inasmuch as they did not put aside the amount each year. If the county manager or somebody else were to come down on them now it might create an awkward problem for them. No matter what happens, the county managers will have power to fund the arrears or to take them in small amounts—in pounds, shillings or pence. While I would like to give the managers the right to strike off these trivial sums which are creating a great deal of friction——

That can be met by your providing that the county manager could remit any sum due by a particular person under so much.

I would not like proceeding on these lines. You would have one person in and another person out. I can see that county managers might exercise this discretion in a way that I certainly never intended it should be used. When I approved this section I had no more notion that it would be used in a liberal fashion than I have of flying without wings. I can see that if a county manager were to use that discretion in a generous manner he could use the argument, "Did you not give me the legal power to do so? What complaint have you against me?" As a result of the discussion here I felt a little perturbed about that and, if I think it wise, I hope the Seanad will have no objection to my introducing an amendment on the Report Stage which might curtail that power.

Assuming you introduced a section to curtail the power of the county managers, what is the alternative? In the old days all the arrears were considered on one day and the county council met for that specific purpose. When we thought there was a just and fair case for a remission, in whole or part, we were always directed and influenced by the rate collector for the particular area. But since the advent of the county manager he has supreme jurisdiction and we do not come into the picture at all. If the Parliamentary Secretary curtails the power of the county manager, what exactly is the alternative? Will you insist that the county manager will meet us?

I do not want to interrupt the Senator but, according to the County Management Act, the county manager is responsible for the collection of the rates. In amendment No. 24, Senator Sweetman seeks to secure my approval for an amendment of that Act, and I say that I would not have any right to amend it. Therefore, the county manager will continue to have the legal right to collect the rates in future in Limerick and everywhere else. That is according to the County Management Act. I have to consider whether he should have the right in this Bill to remit and, as I feel now, he is not going to have it, I should like to say to Senator Madden that, but for the fact that Limerick is a very wealthy county, they never could have got through the last 20 or 30 years by following that system of collecting the rates. In a poor county like Cavan you have to give to the county secretary the powers now exercised by the county manager in a legal way. We handed over to him the right to insist on the collector lodging the amount of his warrant and then showing cause why a refund should be given to him. If the Senator lived in a poor county like that he would know how poor counties have to exercise their democratic functions in order to carry on. As a result of my contact with other people I can see that rich counties like Kildare and Limerick can take it easily and let some people off. As a result of that we had a county manager last year faced with the sort of position to which Senator Sweetman referred of going into a county not knowing anybody in it, and striking off the arrears of a lady who happened to be the mother of the collector and of another person who was a pensioner. It is only in wealthy counties such as those of Senator Madden and Senator Sweetman that that policy could have existed so long.

May we take it that the Parliamentary Secretary will introduce some amendment? My reason for asking that is that I think this is of considerable importance and, if he did not do it, some of us would put down an amendment so that this matter could be further discussed.

If I do not do it, there will be very good reasons for not doing it.

I shall leave it at that. I think what the Parliamentary Secretary said is correct. The way in which hardship can be reasonably met in connection with the whole question of debts—I am not referring solely to this Bill—is by long-term payments, not remission. I think powers should be given in that direction, not towards remission.

I think it would be unfair if I did not take the opportunity of expressing appreciation from these benches on the manner in which the Parliamentary Secretary met the case made. At the same time it would also be unfair to my predecessors on the Kildare County Council if I did not take him up on one sentence. Their attitude, I am informed, always was that they would give them time, but that they would not strike off the amount in question. They would always leave it there and, if in the future something cropped up, it would be collected. I entirely agree with the Parliamentary Secretary, talking of the Barrow Drainage question in particular, that it would be all wrong if there was a different solution in Kildare from that in Laoighis and still another solution in Offaly. It would only breed discontent. From that point of view, I would far prefer that it should be definitely stated once and for all what is to be done. I entirely agree with the very able case the Parliamentary Secretary made against his own section.

Amendment No. 24, by leave, withdrawn.
Amendment No. 25 not moved.
Section 28 put and agreed to.

I move amendment No. 26:—

To delete the section.

This amendment is really not necessary because I could have voted against the section if I wanted. I put it down, however, to draw attention to certain matters contained in the section upon which I want an expression of opinion from the Parliamentary Secretary. Naturally, any of us discussing any section in the Bill will try to relate it to our own known circumstances.

I see in this section the possibility of considerable hardship being imposed on the Cavan County Council arising out of difficulties in the matter of the proper maintenance of this scheme to which we have referred frequently. I should like to have from the Parliamentary Secretary some clarification of the situation. Briefly, I put it that the work was not completely successful, for many reasons into which I need not now go. My information is that since the construction work was done there has been a deterioration, and, further, that the estimate for maintenance was originally decided upon on the basis that the total expenditure was to be £66,000, when, in fact, it was £88,000. The position is that there has been deterioration, and the work was not as well done originally as it should or might have been done.

I am not now getting into a discussion on this point, because I am not competent to judge. This is partly an engineering problem, and there are difficulties arising out of other causes. I do not know whether there are districts similarly situated, but I do regard it as an injustice and a very considerable hardship on the county council. There were circumstances over which they had no control, and, as a result, works under their control deteriorated, and they would have imposed upon them the obligation of raising the standard of their maintenance works at very considerable cost.

There is one other point in this connection and it arises out of sub-section (2), paragraph (a). I did not put down an amendment because I proposed to deal with it in another way, but I would like to draw the Parliamentary Secretary's attention to this:

"(a) the council or councils on which such notice of disrepair is so served shall forthwith execute to the satisfaction of the commissioners..."

I suggest that might be a practical impossibility. It would depend on the time when the notice was sent out. You could have a notice sent out to a county council at a particular time to carry out the work forthwith and you could have flooding in the meantime and it would be impossible to do any work. On that point there should be some latitude; otherwise the section would not be effective. I am concerned about the first point and I hope the Parliamentary Secretary will indicate his mind and the policy of the Department.

I would not like the Senator to give a wrong impression to the House, seeing that I have been trying to give the county from which we come a good reputation in the matter of rates. I would not like the Senator to convey to the House a wrong impression of our engineers in County Cavan.

The Board of Works engineers.

I would not like the Senator to convey the impression that they were in danger as a result of Section 29 of this measure. It so happens that, in the investigations and inquiries that were made prior to the commission bringing in its report, and in the evidence given before the commission by the different county councils, it was indicated that we must have been amongst the first two or three councils because of the manner in which we maintained the drainage districts in our charge. For that reason I am naturally a bit jealous to see that our reputation is preserved. There is nothing in Section 29 beyond the fact that, as regards legal responsibilities that the councils have at this moment, if they have not discharged them they will do so. Could there be any objection raised to that?

You do not want an answer now?

I do not, but I am putting it as a poser. Take a drainage district in any county in which work was carried out under the 1925 Act and which was handed over to the county council for maintenance and the county council neglected to maintain it, although legally bound to do so. They are bound now to do so, even before this Bill becomes law. They are legally bound to maintain that district up to a proper standard. Is it suggested that I am not justified in seeing that these powers will be preserved? If it is, then the members of this House who take that view have an entirely different approach to this problem from my own. We are not seeking to do anything under Section 29 beyond taking powers to ensure that if the legal responsibilities which are there are not discharged, we will be able to do certain things. I certainly would not agree to any deletion.

You are not asked to do that. I suggest the Parliamentary Secretary has not met the case fully. I am all for county councils discharging their obligations as fully as it is within their competence to discharge them, but I am now trying to get the measure, as it were, of the particular case of which I have knowledge. I do not know what the Barrow, the Kildare, the Carlow or the Limerick people do. I am concerned about what our responsibilities are locally. The fact is that it takes more than a rate of 2d. in the £ to maintain a certain drainage work. It takes £2,500, more than 2d. in the £ in our county, to maintain certain works. But my information is that the works there have deteriorated since they were taken over and that deterioration has taken place because of certain defects in the original work, in the manner in which it was performed. I am aware that those engaged in the scheme originally worked when the water was, as the saying is, at high tide, when the floods were so high that the men did not know what they were doing. The dredger was going in and coming out with something—that was all the men knew. They worked through that period and the net result is that there are sand banks and obstructions in the water and these are growing year after year.

The standard of maintenance has deteriorated from the condition which existed when the works were handed over. Equipment is not available to enable the county council to do anything, in the first place, and, in the second place, the amount levied for the maintenance work was too low. If the Commissioners of Public Works say that this drainage district is not being maintained up to the same standard as existed when it was taken over, I know that some people are perturbed as to what it will cost to get back to that standard, and it cannot be charged against the Cavan County Council or the engineers—to any lack of desire or ability on their part to do the job well. That is the problem.

The Senator will realise, in the case he has in mind, that, if the county council collected the maintenance rate from the riparian owners and spent it on the district, would that not be a complete answer? If that was not sufficient to keep the district in as good a condition as when it was handed over, would not that be a complete answer? Nobody could have expected them to do more—we did not expect them.

The commissioners did not?

They did not, of course. It would be unreasonable to go to the riparian owners or the county surveyor. He could say that he could not get any more money than was provided for him in that fashion—and say: "Where is it to come from? I spent the money that was there for me. It was not enough, but it was not my fault." Surely you could not penalise a man like that?

That is all right then. I hope your successor will prevent the commissioners coming down on Cavan County Council.

This is a very serious section for the rate-paying community and it has a definite relation to Section 58, about which I hope to have much to say. The Parliamentary Secretary told us a few moments ago that all schemes that have been operated under the 1925 Act must be maintained by the county councils. The scheme about which I have an amendment down is a scheme that came specifically under the provisions of the 1925 Act. Our county council allege that that scheme is not alone incomplete at the moment but is defective. We tested that and we were justified legally in the High Court. Is it not ironical that in almost the last sentence of this section we find that if a county council default in maintaining a scheme under the 1925 Act which was adjudged in the High Court to be not alone incomplete but defective——

An Leas-Chathaoirleach

This matter will arise more relevantly on a later amendment, amendment No. 36, in the Senator's name. At the moment we are on Section 29.

Shall I be in order in discussing it when the later amendment is moved?

An Leas-Chathaoirleach


The Parliamentary Secretary did not advert to the point I made with regard to commanding county councils to carry out works forthwith.

I think that that will be met in practice. We would not expect them to dash in at a time of the year when it would be unreasonable for them to carry out such work. There would be no purpose in that.

Amendment No. 26, by leave, withdrawn.
Sections 29 to 35 inclusive, agreed to.

On behalf of Senator Quirke I move amendment No. 27:—

In sub-section (2), page 25, in line 3, before the word "for" to insert the words "or under Section 46 of the Land Act, 1931 (No. 11 of 1931)"; to delete in lines 4 and 5 the words "or under the said Section 45 for the repayment to the Public Trustee"; and to delete in lines 8 and 9 the words "or repaid to the Public Trustee".

This is merely a drafting amendment.

Amendment agreed to.
Section 36, as amended, agreed to.

I move amendment No. 28:—

In sub-section (1), page 25, lines 26 to 30, to delete all words after the word "condition" in line 26 to the end of paragraph (a), line 30.

This section provides for the maintenance of certain drainage works by the commissioners. I would draw the attention of the House to earlier provisions which have a bearing on the section. You will observe that in sub-section (1) it is provided that whenever a certificate of completion has been issued and a maintenance transfer order has been made certain provisions shall apply. These provisions will also apply in case of the transfer of an existing drainage works. Under Section 13 whenever a particular drainage works or section of drainage works has been completed, the Minister will issue a certificate of completion and under Section 24, in the case of maintenance work, he will make a maintenance transfer order handing over the works to the care of the commissioners, the matter being taken from the control of the county councils. You will observe that both these orders are made at the request of the commissioners. The work is not imposed upon them. The transfer takes place because they request the Minister to make over to them the control of the works concerned. They introduce in Section 37 a provision which reads as follows:

"In the case of any such existing drainage works it shall not be obligatory on the commissioners to maintain such works in a better condition or state of repair than they were in on the date of maintenance transfer order."

It seems to me if the works transferred are in a dilapidated condition, and of no service to the community, the commissioners take the precaution to ensure that there will be no obligation on them to maintain or repair the works. I could understand a provision of that kind being inserted if, for instance, the works are being transferred to a county council against the will and desire of the county council, but I cannot understand a State authority, having an obligation to the community and having transferred to them at their own request drainage works such as are mentioned here, inserting a provision which will ensure that if the drainage works are in a state of dilapidation they shall continue to remain in a state of dilapidation. I am endeavouring to have these limiting words taken out. Even when they are taken out of the Bill, no new obligation is placed on the commissioners. The words, as they are here, are objectionable because they clearly indicate a state of mind which I think is not calculated to promote the public interest. I am not arguing that the commissioners, having taken over responsibility for a drainage works, should be obliged to embark on new work, but I do suggest that if they find that the works handed over to them are unsatisfactory, or, as may happen, useless, there should be at least an acceptance by them of an obligation to render the works of public utility. I think the Parliamentary Secretary will agree that it is not an unreasonable proposition, and I urge very strongly that he should accept this amendment.

Surely we are entitled to the same protection from legal action as a local authority enjoys. Does the Senator not see that if we are entitled to provide that a local authority will not be exposed to legal action, a State Department is entitled to similar protection? That is all we are trying to provide here. It is necessary to try to conceive the circumstances in which a transfer order may be made. It might be a case of a new district having been created, new works carried out. We should have to maintain those ourselves. We should have to set up a maintenance organisation and we might find that it would be wise and good policy, when we had the maintenance organisation, to give it enough work to keep it fully occupied. There might be a number of old districts in the hands of county councils and we might apply for transfer orders under Section 24. I do not suppose it is likely to happen very often, or in fact would happen at all, but the power is there if we decide to exercise it. In the event of our going in, surely the Senator will realise that, no matter what maintenance work might be done, it might not be entirely satisfactory and the authority responsible might be open to legal action. We are only seeking to give to the authority—the Board of Works, in this case—the same right and protection as are sought for and given to the local authority in relation to maintenance.

It appears to me that it would be futile to delete the words from paragraph (a) which the amendment proposes to delete unless paragraph (b) also is deleted. Paragraph (a) is merely a preparatory paragraph for the purpose of paragraph (b). In the ordinary course, if a county council takes over a drainage scheme from the Commissioners of Public Works, the county council would be liable only for negligence on its part in the maintenance of the scheme, and if they could show that they had maintained the drainage works in the same condition as the works were in at the date of the handing over, the county council would be absolved from legal liability; but in this Bill there are provisions for the purpose of enabling a Department of State to copper-fasten itself against any action for negligence in relation to maintenance, because paragraph (a) provides, unnecessarily, from the legal point of view, that it shall not be obligatory on the commissioners to maintain such works in a better condition or state of repair than they were in on the date of the maintenance transfer order.

That is the ordinary law when applied to negligence, but under paragraph (b) the commissioners are empowered to inspect the works and to issue a certificate stating that they have caused the drainage works to be inspected and are satisfied that at the date of such inspection they were in a condition and state of repair at least as good as that in which they were on the date of the relevant maintenance transfer order. That certificate defeats any action by any person who may be aggrieved by the lack of repair of a drainage works, if such is a fact, and, therefore, if Senator Duffy desires to leave the commissioners and parties aggrieved by any neglect on their part to their ordinary remedies at law, paragraph (b) should be deleted as well as the words in paragraph (a) which it is proposed to delete.

It is the policy of the commissioners no doubt to remove that possibility of action against them by these provisions. These are very drastic powers vested in the commissioners and they should be very carefully considered. It may be reasonable to avoid litigation so far as drainage works are concerned, but here the commissioners take power, by issuing a certificate themselves, to defeat any action by any person aggrieved by lack of maintenance on their part. I do not think this amendment would achieve the purpose he has in mind, and I state that without expressing any opinion as to whether or not the commissioners are acting properly in inserting these provisions. I am sure they will carry out the work to the best of their ability and will keep the works in a reasonable state of repair. At all events, the commissioners take power to close the door against all actions against them for negligence, and that is the fact we have to face.

If this Bill becomes law, my county council will be asked to take over a scheme which has been adjudged to be incomplete and defective.

An Leas-Chathaoirleach

We are dealing, Senator, at the moment, with an amendment to Section 37. That matter will arise later.

Might I point out to Senator Madden that my amendment deals only with works transferred to the commissioners, not to a county council?

Business suspended at 6 p.m. and resumed at 7 p.m.

I think, Sir, that if Senator Duffy had considered the provision in paragraph (c), sub-section (2) of Section 29, he would not have proposed this amendment, because I do not think he realised that when the commissioners are doing that work they are doing it at the expense of the county council, that they are charged with the work, and that if they are doing the work they will be charged with its expense. That is all I have to say in regard to the matter.

Probably, I misled Senator Ryan by confining myself to one amendment, but I am troubled to this extent: that there is not much point in putting down on the Order Paper a number of consequential amendments unless one knows in advance that the principal amendment will be accepted. What I wanted to achieve was that, once the principle of the main amendment was accepted, then, on the Report Stage, the other necessary amendments would follow. In this section the commissioners are providing safeguards to protect themselves—to a much greater extent than the Parliamentary Secretary seems to think. In my opinion, it is only reasonable to say that the commissioners, or any public authority, should not be exposed to vindictive actions. I think we will all agree that, in connection with legislation of this kind, they are all entitled to protect themselves against legal actions taken by people from whom costs could not be recovered, assuming that the commissioners succeed in their defence. Further on, however, in this section, it would appear they are to be the judge and jury in the case of any such action; and the commissioners, if threatened with legal proceedings as a result of some neglect, will appoint one of their own officers to give a certificate which will be an answer to any of the claims made against them. Now, I do not think that that is a desirable line of policy for a State Department to follow. I should like to put this point to the Parliamentary Secretary: would he agree that the workmen employed by the commissioners should have the same rights in respect of their own service as the commissioners are claiming for themselves?

In other words, would he agree that these workmen should be authorised to issue to themselves a medical certificate certifying that they are unable to carry on the work and that they are entitled to whatever privileges might follow from that, or that, in the case of an accident, they could issue a medical certificate to themselves which would entitle them to compensation? I have no doubt that the Parliamentary Secretary would be horrified at such a suggestion, but that is exactly what he is claiming here—the right for their own officers in the Department to protect themselves against any legal action that may be taken against them. I hold that that type of mentality is undesirable, and I think that the Parliamentary Secretary should reconsider his attitude. I am prepared to admit that the amendment submitted here to take out these words does not provide the safeguards that I have in mind, but at least there should be taken out of the Bill the suggestion that the commissioners, as a public authority, are not expected to do anything more, in relation to the works taken over by them at their own request, than had been done by their predecessors. Strictly speaking, I believe that Senator Ryan is right when he says that the word "legally" makes no difference in the section. That causes one to wonder why it was put in. The only explanation appears to be that it was inserted as a warning to everybody that the commissioners do not propose to do anything to improve a drainage work after the date of the transfer order and that they are prepared to allow deterioration to continue. If there is no obligation on the commissioners to maintain drainage works in a better state of repair than they were in on the date of the maintenance transfer order, it is obvious that these works will, eventually, deteriorate in many respects and that the district will later be confronted with the necessity for new drainage works to make good the defects. The Parliamentary Secretary should set his mind against that attitude on the part of the commissioners and I strongly urge him to reconsider the whole position as set out in Section 27.

I freely admit here, as I admitted in the Dáil, that the power which we have taken here in regard to certification is a very extravagant power. I am fully conscious of all the arguments which can be used to show up that extravagance. But Senator Duffy has to remember that somebody must certify. Who can certify other than the authority which is carrying out the sort of detailed inspection that will furnish it with a record as to the condition in which the works are? Extravagant analogies can, of course, be made. It can be urged that a workman should be empowered to certify under the Workmen's Compensation Act that he is unable to work. That is all very well from the point of view of debate but, when Senators come down to practical considerations and admit the necessity for protection, I can see no means by which that protection can be provided other than the means set out here.

There is this to be said in addition —that, in many cases, the transfer order will be made only when a district is about to be incorporated in a new scheme. The chances are that the period in which it will be in the hands of the drainage authority for maintenance purposes will be short. While I concede the point made by Senator Duffy, I say that, once you admit that the authority is entitled to protection similar to that afforded to local authorities—and you must admit that, no matter how critical you are—there is no other means by which a certificate can be made available in the case of the commissioners themselves and in the case of the local authority when subjected to a legal threat. A point that was made by Senator O'Dea has escaped my memory.

That the council will have to pay for maintenance when the commissioners take it up from them.

Therefore, if you make an improvement work you will charge a council the cost of it?

Listening to this debate without any very intimate knowledge of drainage legislation, I have come to the conclusion that you will be driven ultimately to consolidate and make one authority responsible both for the schemes and their maintenance. I feel that, in the future, in the case of the bigger schemes at least, there is going to be a continual conflict between those who make the works and those who maintain them. I would ask the Parliamentary Secretary if that aspect of the matter has ever been considered. The tendency, in regard to drainage, has been more and more towards centralisation. Therefore, I feel that the only logical conclusion will be, in the case of the larger works at least, where considerable engineering knowledge and considerable equipment are required for maintenance, to bring it all under one authority, and only leave maintenance to the local authority in the case of the smaller works. If that was done it would seem quite feasible for the drainage commissioners to make a charge on the local authorities for the cost of such maintenance. I would like to know if that aspect of the matter has been considered.

I am afraid the Senator is not conversant with the details of the proposals in this Bill. In fact, that is what is visualised, and that is the situation that is ultimately aimed at as a result of these proposals: that not only will the works be carried out by the State organisation, but that they will also be maintained by it. That, however, is looking a long way ahead. In the meantime we have to provide maintenance machinery and organisation to look after the districts that are there now, in whatever condition they may be.

Am I right, then, in thinking that without further legislation it will be possible for the drainage commissioners to undertake both construction and maintenance of the larger works?

In fact, they will have a legal responsibility to do so as a result of these proposals.

Is the amendment being pressed?

The Parliamentary Secretary agrees with me entirely, so there is nothing more to be said.

Amendment, by leave, withdrawn.

I move amendment No. 29:—

In sub-section (1), page 26, before paragraph (e), to insert a new paragraph as follows:—

(e) as soon as practicable after receipt by the council of the statement of the estimated probable cost and the demand prescribed in the preceding paragraph of this sub-section the council shall consider the said statement and demand and may make representations in regard thereto to the commissioners who shall consider such representations before sending the demand in final form to the council for payment.

I wish to have that new paragraph inserted not for the purpose of in any way obstructing the service which this Drainage Bill will undoubtedly confer on the people but because the discussion that would naturally take place in the different councils on the statement sent out by the commissioners would prove of benefit to all concerned. At the annual estimates meetings of county councils a statement of the amount of money necessary to run the different services in each county is submitted by the responsible officer. The councillors consider the estimates for roads, hospitals, public health services and other county health services, and very often, as a result of the contacts that these councillors have with the different services, useful suggestions are made, suggestions that frequently lead to a reduction in the demand without impairing in any way the public services provided. So far as the question of drainage is concerned, if the councillors, who will be more in touch with local circumstances than officials, had these demands submitted to them, they might be able to make suggestions that would lead the commissioners to reconsider the amount of the demand and vary it to the satisfaction of all concerned. The amendment does not in any way interfere with the power of the central authority in making their demand. It simply asks that, before the final demand is made, the councillors concerned will have an opportunity of considering it and of submitting the result of their deliberations to the central authority.

Why create any statutory obligation in that regard? What necessity is there for it? Is it not to be expected that you would have the local authority resisting a demand like this from the drainage authority and raising such matters as those to which the Senator has referred? That sort of thing would be an everyday occurrence. Why create any statutory obligation to do that?

I would like to know what chance the different councils will have of considering the demands made on them and in respect of which they will have to strike a rate. Will they have any power to make suggestions as to the items in the demand for the different drainage areas?

If the Senator will look at paragraph (e) he will see that the drainage authority has power to readjust the following year. When a demand is made on a local authority by the drainage authority, to proceed to strike a rate, even though that demand may lead to the raising of questions such as the Senator has referred to, they can be dealt with by correspondence. If the drainage authority thinks that the points raised by the local authority should be conceded, then the financial rectification can take place in the following year. I do not think it is necessary to put in statutory provision for that purpose.

I do not know. The same reason might govern the demand made by a county surveyor in so far as the roads in a county are concerned. He demands so much money for the maintenance of the roads in the following year. When the councillors go into his estimate item by item they are frequently able to satisfy him that he will not need so much money in certain cases, and he is able to come to an accommodation with them.

I think it is better, when a demand is made and even though the local authority may wish to discuss it, that the rate should be struck, and that the correspondence or agitation as between the local authority and the drainage authority should go on. If, later, in the opinion of the drainage authority, as a result of that correspondence, concessions should be made, then they can be made in the following year.

I am satisfied with that.

Amendment, by leave, withdrawn.
Section 37 agreed to.

I move amendment No. 30:—

In sub-section (1), paragraph (a), after the word "enter" in line 31 to insert the words: "with the consent of the owner which consent shall not unreasonably be withheld".

I do not know if the amendment fits into this section but it enables me to raise this question now. As I understand the commissioners are entitled to go into any land. Naturally they must have liberty to do so, and I feel that there should be some recognition of the fact that there is an owner and that he should be acquainted with such a decision. I cannot see that such an obligation has been placed upon the commissioners in any part of the Bill. I have had experience of what happens with the Electricity Supply Board. They have very wide powers. If for some reason they enter on property to carry out work in connection with the electricity scheme they present the owner with a document asking for his consent to do so. Sometimes demands are made that are not easily complied with. I had experience in the case of a small farm of mine where, in the month of May, one of their employees presented me with a document asking for permission to cut down a tree that it was suggested was causing an obstruction. The land was under meadow and at the time the grass was six inches high. As the tree, if cut down then, would damage 30 or 40 yards of the meadow, I would not give consent. The Electricity Supply Board officials insisted that the tree was causing damage but if cut down then it meant that I would not be able to get a machine to work in that part of the farm. I suggested that they should wait until a later period. The tree was ultimately cut down after I had been presented with a document recognising that I had rights. There should be an obligation on the commissioners in this Bill to act in a similar manner. I know that that may create certain difficulties, but whatever the commissioners do, they will be responsible for the carrying out of the work. They are also being given authority to sublet to contractors.

Everybody knows what contractors may be like. Some of them may be very efficient and conscientious, but those in their employment may have very little respect for the rights of property, and may be prepared to get on with the work regardless of the consequences. In the case of the Electricity Supply Board my experience is that where the ganger in charge is a man from the country, he can be trusted to do carefully whatever work has to be done, and with consideration for property, but if the ganger happens to be a man who does not care what happens, land may be entered on, say, on the 1st of June, regardless of what damage may be done. It would be a good thing to impose on the commissioners the responsibility of acquainting the owners of land when their property is being entered upon. I am certain that no landowner would withhold the necessary consent unreasonably. A provision of this kind would be protection for everybody, even from the point of view of the compensation that will have to be paid.

There are two different things dealt with in the Electricity Acts, one being the right to enter land for a survey. As far as that is concerned the amendment that Senator Baxter suggests would make the section unworkable, because you would not know at that stage who the owner was. In the Electricity Act power was given to enter, as is given in Section 38 of this Bill. Once the survey had been made, and before actually entering lands, under the Act of 1927 notice of some sort had to be given to the owner. All I am interested in is—and I think it is as far as we should go—getting an undertaking that the Department, where they can find out who the owner is, will tell him in advance so that he may make all the arrangements that he may want to make.

Mr. P. O'Reilly

I do not think there is any need for this amendment and, similarly, I do not think there should be any need for the inclusion of this section in the Bill. When I proposed to give similar powers to local authorities the Parliamentary Secretary assured me that there was no need to do so, as they already had these powers. If the commissioners have the same powers as local authorities, there is no need for this amendment.

What about the new works carried out?

Mr. P. O'Reilly

I understand that these powers are there already without including them by an amendment such as this one?

I am afraid you aretré na chéile. I could not work up any sympathy for the amendment. There was the same kind of proposal in the other House. The word “reasonable” became a joke during the discussion. It was a word I did not like. I can see Senator Kingsmill Moore, Senator Ryan and all the good boys hanging on to that word. I got a very bad reputation for resisting it, because it was felt maybe by some people that I had some dark and ulterior motive for my attitude. Senator Baxter knows rural Ireland. So do I and so do most members of this House. In Sections 48 and 49 I am trying to provide machinery to ensure that people who, I am told by Senator Baxter, are reasonable people, will not obstruct their neighbours in the carrying out of desirable and useful works. Those of us who know rural Ireland must confess that we are not such very reasonable people, especially when it comes to a question of entering upon lands and doing certain things. One would be surprised at the number of decent men who would be capable of adopting a most extraordinary attitude. If the State, as the State undertakes to do in this measure, spends the taxpayers' money for the construction of drainage works for the benefit of those whose lands are at the moment being flooded, the authority to which the State hands that responsibility should have a right, without the insertion of the word “reasonable” or “reasonably”, to go into those lands and maintain those works.

I do not think there is any real analogy between the cases that will arise under this Bill and the kind of case that Senator Baxter mentioned of the Electricity Supply Board. The cutting of that tree did not mean anything to Senator Baxter. He would get his electricity in the ordinary way, apart altogether from the question of the tree, if he happened to be situated in a position where it could be made available to him. But, if Senator Baxter had land which adjoined a main artery on which the State had spent a considerable sum of money and if the tree were an obstacle or if his meadow had to be entered upon for the purpose of ensuring that these national works would not deteriorate, I do not see why the engineer should not have the right to inspect those works. The engineer who would have a district to look after would have the same duties to perform as a county surveyor has in relation to county roads. We regard proper maintenance as requiring from an engineer the same sort of attention in seeing that everything is right and in seeing that after floods or other occurrences there would be no obstruction. We think that engineers should be free to inspect these works and to enter on my land or your land, walk along the banks, or do any of the things that may be necessary, bring in a gang of workmen, and that he should not be called upon to go with a document in his hand and to say, "We are going to enter your field to see if there is a bush held under a bridge or strands of wire erected that might cause obstruction that would ultimately result in flooding".

I know that we are a sensitive people about our individual rights, and I should not like to be taken as wanting to trample upon individual rights in this measure, but Senator Baxter and other Senators who have had some experience of the administration of former drainage Acts know the pinpricks that could be used by individuals to obstruct, to irritate and to try to extract something to which they were not entitled. I have no sympathy whatever with that point of view. It is all right to have discussion about it but I do not think that anybody could say, on reflection, that the word "reasonable" would not create all kinds of trouble and litigation. I certainly would oppose it with all my might.

Is the Parliamentary Secretary prepared to say if he is going to tell the owner before his men go in? I made it quite clear that I do not approve of putting it into the Bill, but I do think that there should be some administrative procedure whereby you could tell the owner beforehand.

There is no doubt about it, if you are going to do substantial work.

I know what I would feel like doing with the engineer who would not tell a land owner of his intention to enter, if, for instance, the man had a field of hay. On the other hand a man might have to go in 35 or 40 times a month, merely walking through a field, and he would be breaking the law unless he got the owner's consent. If an engineer were to dash in with machinery or equipment or even a substantial gang of men to do maintenance work, and that he had to walk over a field on which there was hay and destroyed a considerable portion of it, I would certainly call him to book for his behaviour unless it was a very urgent matter.

There is nothing whatever between the Parliamentary Secretary and me because he has just quoted the kind of thing I have in mind. I have a farm along a river which is subject to a drainage rate and the banks have to be maintained. I live a long way from it. It is meadow land. Most of the land through which these rivers and drains flow is low-lying meadow—hundreds and thousands of acres. The only time you can do efficient drainage is in that period of the year when people are beginning to make hay. If I were to go out to my meadow in the second week of June and found that a week before, without any notification to me, a gang of men had trampled my meadow, I think I would have a grievance.

I think the Parliamentary Secretary should look into this matter and see if it would not be possible to put in something whereby the commissioners would be obliged to communicate to riparian owners their intention to enter upon land. The owners then could take the consequences if they would not look after their crop or cut their hay. That is important from the point of view of the effect of the drainage work. If men are working through grass two feet long on a river bank they cannot do work anything as effective as they could do if the grass were cut and cleared away.

It appears to me that this is merely an empowering section. Sub-section (1) of Section 38 provides that it shall be lawful for the commissioners to do a number of things. In other words, only for that section, it would be unlawful to do them, that is, to enter on any land, to take away sods, to deposit soil or to utilise spoil or gravel found on the land, for the purpose of drainage work. I consider this section is merely an empowering section to make lawful what would otherwise be unlawful, that is to say, the commissioners would be liable for trespass if they did these things set out in clauses (a), (b), (c) and (d), without the consent of the owner. The amendment which Senator Baxter has moved relates only to clause (a), that is, the portion of the sub-section which gives power to the commissioners to enter upon land. It does not deal with (b), (c) and (d).

If they could not enter upon land, how would they get the sods?

They could enter upon the land but they could not remove the sods without the consent of the owner. They may enter on land but they require consent to remove sods; they require consent to deposit spoil on the land and they require consent to utilise for the purpose of maintenance the gravel and sand which they find on the land. So that the amendment is not at all sufficient to achieve the purpose which Senator Baxter desires, namely, that everything should be done as far as possible with the consent of the owner.

I think the section as it stands is quite proper and I am sure the commissioners, in executing that section, will do so, as the commissioners have previously done, in accordance with what is right and just and that proper notice will be served upon the owners of land. I think it would be unreasonable and I think it would be quite out of the ordinary course of events if the commissioners should send gangs of men around the country into lands adjoining drainage works and, without any notice to the farmers, that these men would proceed to dig up his soil and to take away the sods. I think that beforehand they must act in the proper way provided for in this Bill, This is merely an ancillary section, giving the commissioners power to utilise the property of other persons if they should require it for the purpose of a drainage scheme.

Will the Parliamentary Secretary tell us what is the practice, what the commissioners do?

We never had any maintenance up to now. This is to provide machinery for the maintenance of new works when they are created. We have never done maintenance in the past.

I am not tied to the amendment at all.

Once you insert anything like that, it will be abused, and that is all there is about it.

You cannot insert the amendment, but if you are going to do anything serious you will let the man know first, as a matter of administrative procedure? Is not that the position?

The farmer is protected by the legal principle that, if you give statutory power to somebody to do something which would otherwise be illegal, he must act reasonably. If he acts unreasonably, it is quite possible that he should be restrained, and I do not think Senator Baxter need anticipate that anything will be done which is not reasonably necessary, having regard to the exigencies of the case.

Amendment, by leave, withdrawn.
Sections 38 to 41, inclusive, put and agreed to.
Question proposed: "That Section 42 stand part of the Bill."

On Section 42, would the Parliamentary Secretary explain to me why the members of the panel are appointed for only five years? What I am trying to get at is this: The reference committee appoint the members of the panel, and that is very right and proper, because the reference committee are completely independent and must be taken by everybody to be unprejudiced. There was a feeling at one period, on the part of people who did not understand the position, that a person might be cut off from being a member of the panel if he did not give decisions which would go in a certain way, and that could not happen with the appointment left in the hands of the reference committee, but why it is a five years' term is a thing which I cannot understand.

I am not sure that I understand it myself. I know it was raised in the Dáil, and we extended the period from three to five years as a result of pressure in the Dáil.

I do not think it makes any difference, but I do not quite understand it.

They are eligible for reappointment after five years. I suppose you must have some period.

That is probably the answer.

Question put and agreed to.
Sections 43 to 46, inclusive, put and agreed to.

I move amendment No. 31:—

In page 32, to add to the section a new sub-section (5) as follows:—

(5) In this section the expression "weir or other like construction" shall not include any weir or other like construction which does not operate to raise the level of the water surface of the river or stream in which it is constructed at a distance of more than 200 yards from the upstream edge of the weir or other like construction.

The object of this amendment is to avoid an effect of this section which, I think, was not contemplated or intended by its drafters. If the section stands as it is printed at present, it is going to make a potential if not an actual criminal out of every decent farmer in Ireland who has a small drinking stream running through his lands, or who has lands bordering upon a river or a stream. I cannot explain the object of the amendment until I have said a few words to the House as to what the exact effect of the section as at present printed will be. May I remind Senators, through you, Sir, that the effect of the definition of a watercourse which you will find in Section 2 is that any stream or ditch, however small, and whether natural or artificial, is a watercourse, and that the word "weir" is defined as including a dam or any of the ordinary adjuncts of a dam. In addition to the definition section, which is merely one which includes those meanings, I would ask the House to remember that anything which has the effect in any respect of holding back water, or anything which has the effect of protecting banks from erosion, is also in the ordinary dictionary meaning a weir, so that this section applies to anything from a few stepping stones, or a few yards of camp sheathing put in to protect a bank in any watercourse, natural or artificial, however small, in the whole of Ireland.

With that introduction you will see how very dangerous it is to have a section which makes it an offence—and an offence to the tune of a fine of £50, and £5 a day for every day that it continues—either to put up or take down or alter in any watercourse, any weir, or any like work. Take the case of a farmer who has flowing through his lands a small stream of about 6 feet wide, and who wishes to make portion of it a drinking pond for his cattle, so he puts some stones across to increase the depth or to provide access. He is guilty of an offence against the section. Take the case of a man with a house or cottage near the river, who wants to form a small pond to work a dynamo for electricity for his house. If he does so, he is guilty of the same offence. Take the case of a person who has a fishable stretch of the river, and who wishes to put a flow through a still place, or to deepen another place, or who wishes to put up groins for a few yards from the banks so as to be able to fish a pool or to alter the run of water. If he does so, he is also guilty of an offence which involves him in payment of a £50 initial fine and £5 every day so long as that remains—an offence, that is to say, unless he has received the consent of the commissioners, and unless the commissioners, when they received his application, have gone to the Minister for Agriculture and consulted with him as to the few alterations that were necessary, and got his consent also. That, I submit, was not the intention of the section, and I am quite sure that if the section were passed in its present form, every effort would be made not to operate it in such an oppressive way, but it is an exceedingly bad system to pass legislation making offences, and to get out of the unfortunate drafting of your section by refusing to prosecute. I think the Parliamentary Secretary would be the last person in Ireland to be pleased if he had three or four applications from me next summer, every time I want to put a few stones in the river, asking that the commissioners should give consent, and should consult with the Minister for Agriculture before I did so.

This is a matter about which I know something. I have built with my own hands and under my own supervision one weir across the Slaney, and I have altered two more. Not one foot of land was flooded by them, nor was the ascent of a single fish in any way impeded. The reason why the section appears in its present form is that the drafters of this measure had their eye merely on those portions of Ireland in which drainage is necessary, that is to say on the sluggish, slow-flowing, midland rivers, in which the fall of the river can be measured in inches to the mile.

Of course, if anybody were to put in an impervious masonry dam even of a foot high in a river such as that, it might cause very appreciable flooding to the lands above it. But the kinds of river to which it should not apply are rivers such as the Slaney, where the fall is measured, certainly in the middle and upper reaches, in a matter of a great number of feet to the mile. To take a stretch of which I have intimate knowledge, a stretch of about half a mile, there are seven weirs; and the 50 yards in front of a cottage which I own has a fall of nearly six feet. There will, I hope, be more weirs there in a year or two, but I can assure the Parliamentary Secretary that they will have no flooding effect and no deleterious effect. Whatever effect they have will be beneficial.

It was the neglect to consider streams of that nature when the section was being drafted that caused it to be drafted in this way. It applies to a mountain brook; as it is, you cannot put two stones across a mountain brook without coming within the ambit of the section. The problem before the House is not so much whether the section as it is should be allowed to stand as the exact manner in which it should be amended. I have not heard the views of the Parliamentary Secretary, but I assume that he will be in agreement with a great deal of what I have said. I have suggested the amendment in a form which I think would be adequate, but I am not asking the House to place so much importance upon the form of the amendment as upon the deficiencies of the section as drafted. The amendment which I suggest to the House is this:

In this section the expression "weir or other like construction" shall not include any weir or other like construction which does not operate to raise the level of the water surface of the watercourse—

I am substituting "watercourse" for "river or stream"—

in which it is constructed at a distance of more than 200 yards from the upstream edge of the weir or other like construction.

The effect of that amendment will be to confine the section to rivers with a gentle flow. According to the amendment, if any weir or other like construction you put in, causes any difference to the water at a height of 200 yards above the weir, then it is prohibited, and it must be clear to everybody here that a weir which does not do that could not cause flooding. Think, for instance, of the Upper Liffey, which members who live near Dublin will know, or think of the mountain streams in Cork and Kerry and you will realise that, with the fall on those, you could probably build a weir six feet high in many places which would not alter the stream 200 yards up. But that is not really what is so necessary: it is necessary that low, loose stone weirs should be put across rivers for hundreds of small agricultural or fishing or commercial objects and, so long as they cannot cause flooding—which they could not, in the form of my amendment—I suggest that there is nothing to which the Parliamentary Secretary can object and nothing to which the Minister for Agriculture can object provided they complied with the fishery laws.

I am leaving it to the sense of the House as to whether to accept the amendment in that form, but I do impress upon the House—and, if necessary, I would use it for the purpose of pushing it to a division—that, as it is, the section cannot stand unless you are willing to create an offence of a serious nature which will be committed by people all over Ireland every day and unless you are merely hoping that the section can be made workable by ignoring its plain meaning.

This section has been inserted here to meet a recommendation made by the commission, which is as follows:—

"We also recommend that no person should be permitted to erect any weir or other like obstruction in any watercourse or to enlarge or alter any existing weir or obstruction without the consent of the central drainage authority, which should have power to prescribe conditions in any such consent. Consent—"

and here they use this unfortunate word—

"should not be unreasonably withheld and disputes should be referred to an arbitrator from the arbitrators' panel. Prohibition of the enlargement of existing weirs should be retrospective as from the 26th July, 1938."

The members of the Drainage Commission were all sensible men and women.

Clearly they were thinking of areas that have to be drained.

Not only thinking of them, but they had visited areas which had to be drained, they had seen for themselves. They were engineers, chairmen of county councils, fishermen —in fact, every phase of society was represented on that commission. When they come forward with a suggestion of that kind, there must be something to it. The Senator has made a very effective case in favour of this amendment and he has shown that, in the most trivial matters, an application might, according to law, have to be made to the drainage authority in the case of a small stream. But take the Forestry Act, under which I cannot fell a tree on my land. I am not legally entitled to fell a tree, whether for a commercial or non-commercial purpose. I make application to the Forestry Department and what do they do? In many cases, the application on its face is evidence sufficient to enable them to ignore it; and then, after so many days passing without a prohibition notice having been served, I can cut the tree. I can imagine that happening in hundreds of cases of the type the Senator has mentioned. I certainly would not like to see any elaborate machinery set up to find out what kind of construction was about to be erected, before giving or refusing consent; but I think it will be possible to devise simple machinery to determine, when an application comes in, whether it can be disposed of quickly or not.

But, if you start off to do what is suggested in this amendment, which is to determine whether the water will be raised in the manner described, who is to be there to carry out the examination, to carry out whatever engineers have to do, to see what effect the raising of the weir will have on the water up stream, etc.? As well as the effects to which Senator Moore referred of raising water for so many yards up stream, there are quite a number of other effects which could accrue. Water could break out and trickle along for a long distance into low-lying lands which would be the cause of flooding a considerable distance away from the actual construction to which the Senator has referred, and which might not have more than the effect which is suggested of raising the water level 200 feet up stream.

This proposal here may be open to criticism. While I can see that there are hundreds of cases in which there would not be any necessity to send an application, I do not see how you can separate the types of cases in which we would want to have an application from the cases in which an application would not be necessary. I think it is better to leave the matter as it is. I understand Senator Moore's point when he says that it is bad to pass a law which is unenforceable, a law that you know will be winked at by hundreds of people. It is indeed very probable that this section would be winked at in the case of a mountainy brook in which a man might put a few stones across to raise the water level for the purpose of being able to get a can of water without difficulty. It is possible that such a man will ignore this provision but, even though hundreds of people without lamps on their bicycles may pass a Garda barracks, if I pass and I have not a lamp and a Guard happens to be on the spot, it will be no argument for me to say that hundreds have already passed. As I say, I agree with the criticism offered by the Senator, but I think it is better that we should leave the section as it is. It will give us the power, where a flagrant breach of it has occurred and where injury has been done, to square accounts with the offender.

I appreciate what the Parliamentary Secretary has said but I rather think that between us we could devise a satisfactory means of getting out of the difficulties which he has outlined and then there would not be any need of dissension. But I think the Parliamentary Secretary has forgotten one or two things. First of all there is no use whatever in quoting a paragraph of a drainage report in the way he has done. These people were considering those portions of the country where drainage schemes were to be carried out and this covers only those portions where drainage schemes were to be carried out. One form of amending this would be by confining the operation of the section to rivers in which drainage schemes are being carried out and those portions of the head waters which form part of the drainage scheme. That is one way of doing it. It is quite clear that the people on that commission never thought when penning that paragraph that it was to apply to rapid falling streams where there was no need for drainage. It is useless to quote a paragraph like that. It is quite obvious that, when reporting on drainage and putting in a paragraph like that, you are dealing with lands that need to be drained.

The second point to which I want to call the attention of the Parliamentary Secretary is that you cannot just put in a request and let the official look at it and say: "This is apparently all right; this is the Upper Liffey and it will be all right." You have to have consultation with the Minister for Agriculture. That does not mean the Minister in person; it means his Department. You cannot give the consent without consultation between the two Departments. If you have to consult between the Departments for the nine or ten applications for consent which I might send in in the course of the next month, it will be a nuisance. Therefore you will have to alter the section in some way.

Supposing I take the Senator at his word and invite him to have a trial with us to see what we can do between now and the Report Stage?

That is all right.

Amendment, by leave, withdrawn.

Perhaps I might mention at this stage that it has been more or less agreed that, if necessary, the House shall sit beyond 9 o'clock in order to finish the Committee Stage of this Bill.

An Leas-Chathaoirleach

The Senator will not specify any specific hour?

Not necessarily.

Section put and agreed to.
Section 48 agreed to.
Amendment No. 32 not moved.
Sections 49, 50 and 51 agreed to.
Question proposed: "That Section 52 stand part of the Bill."

It seems to me that this section is an extraordinarily wide one. It looks as if farmers could be prosecuted for allowing cattle to walk along a river and doing any of the things set out here. I did not attempt to put down an amendment, but really the possibilities of prosecution are so far-reaching under this section that I feel it is practically impossible to make it operative. I can see the cattle of neighbours of mine in low-lying lands galloping along the rivers in the summer months, going into the bed of the river, which is six or seven feet down. There is no doubt that damage is done in this sense——

As long as it is only in the bed of the river it is not so bad.

They do not get into the bed of the river without galloping along the bank.

We are taking a good deal of power here but, after all, farmers do all kinds of things. They gather stones in the fields and dump them into rivers and all that sort of thing without thought of the effects. We must try to stop it if we can.

Question put and agreed to.
Question proposed: "That Section 53 stand part of the Bill."

This deals with the by-laws. I cannot see any mention in the section of where we can get these by-laws. I do not see that they are to be sent to the county council even. I do not know how they are to be made known to riparian owners and others. There does not seem to be any obligation on the commissioners to publish the by-laws.

They are usually published in the local papers.

There is nothing about that in this section. I would ask the Parliamentary Secretary to look into that. I think it is important, because hundreds of thousands of people will be affected by drainage and will be liable to prosecution.

Very well, we will look into that.

Question put and agreed to.
Section 54 put and agreed to.

I move amendment No. 33:—

To delete sub-section (3), page 38, and to substitute instead the following sub-section:—

(3) If the automatic tidal sluice or sluices at Clarecastle Bridge or the alternative safeguard in lieu thereof included in the works specified in Clause (D) of paragraph 2 of the Scheduled Consent has not or have not been provided at the date upon which the remaining works specified in that Clause and in Clause (F) of the said paragraph 2 have been completed—

(a) sub-section (2) of Section 5 of the Fergus Act shall have effect as if it enabled a separate certificate of completion to be given in accordance with that sub-section in respect of the works specified in the said Clauses (D) and (F) other than the provision of the said sluice, sluices or alternative safeguard and a separate certificate of completion to be given (whether by the same or a different engineer) in accordance with that sub-section at a subsequent date in respect of the provision of the said sluice, sluices or alternative safeguard,

(b) each certificate given by virtue of paragraph (a) 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,

(c) sub-section (2) of Section 6 of the Fergus Act shall have effect as if it enabled the Order to be made by the commissioners amending Schedule B to the Final Award dated the 30th day of October, 1860, to be made on the completion of the new works other than the provision of the said sluice, sluices or alternative safeguard and a separate Order to be made by the Commissioners at a subsequent date further amending the said Schedule B by the addition thereto of the said sluice, sluices or alternative safeguard,

(d) sub-section (1) of Section 6 of the Fergus Act shall have effect from the making of the first Order referred to in paragraph (c) of this sub-section until the making of the second Order therein referred to as if the reference in that sub-section to the works specified in Clauses (D) and (F) of paragraph 2 of the Scheduled Consent were a reference to those works other than the said sluice, sluices or alternative safeguard.

This amendment is necessary, for reasons that I will explain. I do not think there is any necessity to go into the Fergus Drainage Act. That Act arose out of an agreement made following some litigation that took place some years ago. The agreement was made between the Clare County Council and the Board of Works, and it provided for the carrying out of certain works on the Fergus. After these works had been carried out a certificate was to be given, and the works were to be handed over to the county council for maintenance. Portion of the agreement provided for the provision of certain sluices, if they were held to be necessary. We have all the works completed, but the sluice gates provided for in the agreement are not available. We cannot procure them, and we may not be able to procure them for a long time. The other works are ready for transfer, and the amendment provides for the transfer of the completed works, leaving over the matter of the sluice gates until they are procurable.

Amendment agreed to.
Section 55, as amended, agreed to.
Section 56 agreed to.

I move amendment No. 34:—

To delete sub-section (8).

This is the section that deals to a certain extent with the area we have had so much talk about for the last two days. We can get back to the question I raised earlier with the Parliamentary Secretary, and which was also raised by Senator Duffy, as to why this section has been considered necessary at all—as to why, in fact, we could not have drafted a section which would have brought these districts in and made them drainage districts for the purposes of the Act. Perhaps the Parliamentary Secretary will tell us why that was not done.

I want to draw the attention of the House to sub-section (6), which reads:

"The commissioners may, with the consent of the Minister, enter into an agreement with the council (in this section referred to as the external council) of the county in which is situate so much of a drainage district to which this section applies as is outside the State providing for the control and management of such drainage district and the maintenance of the drainage works therein by the commissioners and the external council jointly."

Sub-section (7) says:

"When the Minister is satisfied that an agreement made under the next preceding sub-section of this section in respect of a drainage district to which this section applies has the force of law in the area in which is situate the portion of such drainage district outside the State, the Minister shall, by order, confirm such agreement and thereupon such agreement shall have the force of law within the State."

And then sub-section (8), which I want to delete, says:

"The Minister may, by the Order confirming an agreement under this section, 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 agreement."

I am seeking to take from the Minister power to amend this Act by an Order. I am not going to debate that at any length. I think if there is to be an amendment of an Act, it ought to be by the introduction of another Act. That, in principle, is absolutely sound. This section, particularly, deals with a very peculiar problem that is not, in fact, an internal problem and it is very important that it should come before the Oireachtas if there is to be an amendment of it. That is all I am going to say about it. I am not going to hold the House on it.

I want to hear what the Parliamentary Secretary has to say and how he will justify inserting this sub-section, so that the Minister can amend an Act by an Order. Apart from the amendment, I want to get information on sub-section (6). The sub-section says that the commissioners may, with the consent of the Minister, enter into an agreement with the council of the county. That is, the commissioners may enter into an agreement with the Fermanagh County Council; I take it that is one of the points. Again, someone may enter into an agreement with the Armagh County Council, but on that I am not clear. I am, however, clear on this: that so far as the maintenance of the drainage of the Erne district is concerned, that is not under the control of the county council but of trustees; a drainage board is in charge of the maintenance of that river, outside the State.

In the Ballinamore and Ballyconnell district, part of which extends into Fermanagh, there are residents of Fermanagh at present functioning with representatives of Cavan and Leitrim on a drainage board. I know that in the Ballinamore and Ballyconnell drainage district there is a bridge in Fermanagh, the maintenance of which is the responsibility of the Ballinamore and Ballyconnell Drainage Board. Whether this section has reference to that particular bridge I do not know. I want information from the Parliamentary Secretary as to why it is the council is inserted there. I imagine it would be the drainage board. I regard my amendment as an important amendment, covering an important principle, and I hope the Parliamentary Secretary and the House will agree that an Act like this should not be amended by an Order but by another Act, if it has to be amended.

May I support this? It is a subject on which I have often addressed the House, sometimes successfully and at other times unsuccessfully. It will be within the memory of the House that the Minister for Industry and Commerce, who had a similar provision in one of our Acts— I cannot for the moment remember which—when it was challenged agreed that it could not in that form be maintained. The principle that an Order can alter an Act is one which is utterly unconstitutional and untenable.

The proposition I am going to make is half-way between the section and Senator Baxter's amendment, and that is that if the Parliamentary Secretary thinks that with regard to giving legal effect to an agreement made, perhaps, with authorities outside the State, he should have some such power, that he should consent to have the usual section put in, that any such Order shall be laid on the Tables of both Houses and shall be open to question within the next 21 sitting days. That robs such a provision of some of its objectionableness.

The Parliamentary Secretary does not, I am sure, for a moment contend that it is not contrary to the most elementary principles of democracy, and the differentiation between the functions of the Legislature and the Executive, that he should be able, by Order, not even in a time of emergency, but as a matter of general practice, to alter the provisions of an Act which had been before the Legislature. I would like to press upon the Parliamentary Secretary that he should add what I may call a common form section so as to preserve to the Legislature the right of questioning, if it thinks fit, executive amendments of legislative enactments.

I have listened to Senator Kingsmill Moore and I agree generally with the principle that it is improper, so to speak, to provide that an Act of Parliament should be amended by a Minister's Order. That is not the case here. This is a different case. Sub-section (6) of Section 57 provides for an agreement between the Commissioners of Public Works and a county council outside the State. That agreement provides for the control and management of the drainage district and the maintenance of the drainage works by the commissioners and the external council jointly. That is an agreement made between the Commissioners of Public Works on the one hand and the external county council on the other hand.

In order to give that agreement the force of law, it must be implemented either by legislation or by an Order, equivalent to legislation, both in Northern Ireland and in this State. The Minister here allows the county council in Northern Ireland under sub-section (7) to take the first step. He will do nothing until that agreement between the Commissioners of Public Works and the county council has been ratified and has obtained the force of law in Northern Ireland.

When that is done, the Minister makes an Order which has the effect of giving the force of law to the agreement as far as this State is concerned. That is the purpose of the Order to be made by the Minister, to confirm the agreement and to give it the force of law in this State. It is the main object of the Order; it is not to amend any statute. But sub-section (8) gives the Minister power to make such provisions in his Order, including modifications of the provisions of this Bill as appear to him to be necessary in connection with or in consequence of such agreement. In other words, the modification of this Bill which the Minister is empowered to make by Order is limited to the purpose of the agreement and must be in consequence of the agreement. The agreement between the commissioners and the external council is paramount, and any modifications of this Bill which may be necessary to make that agreement operative both here in this State and Northern Ireland must be done by the Order which the Minister is empowered to make. In my opinion, therefore, Senator Kingsmill Moore's fears are groundless so far as this sub-section is concerned. I see no reason why sub-section (8) should be deleted from the section. In other words, if it is deleted, we would merely have the Minister making an Order confirming the agreement without making any Order empowering the carrying into effect of that agreement. I see no reason, therefore, for this amendment.

Mr. P. O'Reilly

So far as sub-section (6) is concerned, I am not going to enter into a discussion as to whether it is constitutional or otherwise. I leave that to Senators Kingsmill Moore and Ryan, but I think there must be a mistake somewhere, because, so far as I understand the position in regard to the drainage districts that would be affected by the provisions of this section, I think the authority having control over the drainage district would be the Drainage Board and not an external county council.

I may be wrong but I am not aware that any external county council has any jurisdiction in the matter. That is why it appears to me that there is a mistake somewhere unless the Parliamentary Secretary has some knowledge that the position will be changed by the legislative authority outside the State. With regard to the whole section, it has been indicated to me——

An Leas-Chathaoirleach

The amendment must first be disposed of. The Senator can then speak on the section.

Mr. P. O'Reilly

In connection with that, I should like to hear from the Parliamentary Secretary how the agreement can come about since the external county council has not jurisdiction in the drainage district. I am sure the Parliamentary Secretary will be able to throw some light on the matter.

This section provides for a type of district about which we have heard so much. The Bill provides for the maintenance of existing districts in a certain way with which all of us here are familiar. If in relation to districts that are trans-border districts, the drainage authority here and the county council of County Fermanagh should make an agreement to-morrow as to the manner in which the district of Ballinamore and Ballyconnell should be maintained and if the machinery by which the area on foot of that agreement was going to be maintained did not conform with this measure, then this measure would have to be amended. Is that not so? After all, it is only a matter of maintenance. It can only affect maintenance. It is not a matter of constructional work of any kind. It is a matter of giving power to the Minister to make an Order to ensure that that agreement can immediately become effective. It may provide different machinery for the maintenance of these districts. If, as I say, there was anything substantial involved, if it were a question of the doing of any new work, I would regard the power that is being sought here as unreasonable. If it were a normal type of problem I would regard the power given to any Minister to annul by Order any measure passed here as unreasonable, but this is an abnormal kind of problem.

We have districts extending into Northern Ireland and the possibility of making an agreement as to the manner in which they shall be maintained in future is always present. That agreement may provide different machinery and if it could not be made effective until it came to the Board of Works and was sent by them to the draftsmen, and we had to wait until the draftsmen prepared a new Bill which would later have to come before the Dáil and the Seanad and be discussed by both Houses, consider all the time that that would involve to establish a maintenance machinery for a district extending into Fermanagh.

Would the Parliamentary Secretary tell the House what are the possible modifications to which he refers?

I could not tell you the possible modifications until I would know the type of agreement to be made.

I am not clear as to why it is the council that is included in it. At present, I believe, in Fermanagh it is a drainage board that is functioning.

It was the County Councils of Cavan, Fermanagh, Leitrim and formerly Roscommon which appointed representatives on the board.

Amendment, by leave, withdrawn.
Question proposed: "That Section 57 stand part of the Bill."

Mr. P. O'Reilly

I still am not clear as to why some other provisions were not made to deal with this situation and I have not heard from the Parliamentary Secretary a conclusive statement as to why the matter is dealt with in this form. I suggested earlier that, in my opinion, a more equitable and better method would be to set up drainage districts in respect of the watercourses existing partly within and partly outside this State. I think that there is going to be terrific hardship if people are to be compelled to pay drainage rates even though they do get a refund from the county council, because I can see that under the existing authority, the Drainage Board, no effective maintenance can be carried out. The Parliamentary Secretary has agreed all through the debate that drainage boards did not do their duty, and he hopes, as I hope, that local authorities will carry out the work of maintenance more effectively than drainage boards; but still in these areas these boards and trustees are to be preserved simply because a river or canal may run partly in the Six Counties.

I cannot for the life of me see why the Parliamentary Secretary did not look at this from the angle from which I look at it. I agree that he has expert knowledge and is well aware of the whole situation so far as it affects the areas of which I speak, but I think the proper thing to have done was to schedule the drainage districts and the lands improved or likely to be improved, and create a new drainage district or new drainage districts, so far as the rivers and lands were affected. This is a most serious matter because I can see that for a very long time, failing agreement with some authority over which we have no control, nothing can be done and no reconstruction works can be carried out. We are allowing the right of an authority, outside, or partly outside the State, to collect taxes. That is the position which is being created. I may be wrong, but I maintain that unless the Parliamentary Secretary can give a reason as to why the course I have suggested should not be adopted, I am not satisfied with the section.

Are we going to have from the Parliamentary Secretary the reasons why he has not put into this Bill a section different from this which, as Senator O'Reilly says, would have made it possible for these areas, in so far as they are within our own territory, to be regarded as drainage areas for the purposes of this Act to be brought under the administrative control of the councils of the respective counties through which the watercourses run?

I hope Senator O'Reilly, who is a member of the Leitrim County Council, will use the forceful and persuasive arguments he has advanced here in connection with this matter in order to induce that county council to proceed, as from the date of the passing of this Bill into law, to do its duty in relation to the particular district about which he has expressed so much concern. This district is composed of Leitrim, Roscommon, Cavan and Fermanagh. Senator O'Reilly has discovered that our people are to be taxed by an outside authority. Each of these councils was entitled to appoint two representatives on the board. Three of them are within our jurisdiction, if my geography is correct, and it does not make sense to me how, if a board composed in that way has the control and management of this district, taxation can be imposed upon our people in the manner he describes.

As a matter of fact, I think that the particular board and these three councils are in a very excellent position to maintain this district, that they are in a much more excellent position than many districts which are being transferred to county councils because the board is composed in the manner I have described. It can strike a rate for the maintenance of these works. That rate is effective outside the territory of this State and that writ must run there as well as here. For the first time in relation to the people in this State on whom that rate is imposed now, they can get a refund from the flat rate of the county. What is to prevent the effective maintenance of that district in view of these considerations, any more than districts which are being transferred to county councils? I cannot help people disagreeing with me and I cannot force down their necks my theories or my beliefs, but I surely have an unanswerable case there. As I said at the outset, the only invitation I can extend to Senator O'Reilly is that in future he will use the persuasive arguments which he is capable of advancing in another place and to other people.

It is not clear yet.

Question put and agreed to.

An Leas-Chathaoirleach

Amendment No. 35 is out of order and cannot be moved. The reasons for the ruling have been communicated to the Senator.


An Leas-Chathaoirleach

That Section 58 stand part of the Bill. Agreed?

Oh! What about Senator Madden?

An Leas-Chathaoirleach

I am sorry. Senator Madden.

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.

"Dear Sir,

"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...."

May I ask the Senator what he is reading his speech from?

I am reading from the report made by the county manager and not my speech. On the Committee Stage of the Bill not a word of the context of the section was altered.

I am anxious to know what the Senator is reading from.

I think the Parliamentary Secretary merely wants to know what documents Senator Madden is reading from.

From a letter addressed by the county manager to Limerick County Council as a result of the interview with him.

Tá go maith.

There is then quoted something that I mentioned already.

"It would appear to me that Government Departments will not trouble themselves with such scruples when they feel confident that retrospective legislation will be introduced to cover up their errors. I feel sure that the council will call upon the Deputies and Senators for the County Limerick to oppose this amendment by every possible method."

We learned of old "Fiat justitia ruat coelum”—even though the clouds should fall, justice must be done. That was the maxim of pagan Rome, but it remained for an Irish Parliament to alter that maxim, and to discard with it all the rights, privileges and securities that the citizens of this State are entitled to under the protection of the law. So as to prevent any invasion or encroachment upon those rights, I hope this House to-night will reject this vicious, retrospective section of the Arterial Drainage Bill. The House can pass the section but, in doing so, in my humble opinion, it will leave a blot on the escutcheon of the Irish Parliament. Therefore, I hope the House will support the amendment, by not voting for the section, and so do one of the greatest acts for the maintenance of the rights and privileges of the people. We were told that a judiciary was to be set up here which was to be the final arbiter between disputants whether individuals or the State, and that it would be above and beyond the influences of executive power. It has been charged that if the Parliamentary Secretary had any doubt as to the decision of the court he could have gone to the Supreme Court. He did not take that course. I trust that the House will save the Constitution, and maintain the dignity and the honour of the law, which protects the interest not alone of the ratepayers of County Limerick but prevents a Government in future rushing retrospective legislation when they want to get their own way.

I cannot pretend to have the experience or the knowledge of this case that Senator Madden has, but I think he ought to be congratulated upon having put it with such a wealth of detail and with such genuine feeling. One can understand that it was an expression of the genuine feeling that prevails in County Limerick on this matter. I should like to support him and to ask the House to reject this section, not because of this particular case, but because of the general principle which seems to be involved, and because it seems to be a matter of immense importance. The scheme which we are endeavouring to work is that Parliament should make the law, that the Government should administer the law, and that the judges should interpret the law. That was the old principle. It is a principle which is being infringed in many places and, in a great variety of ways, but I think this is, perhaps, the first case in which a peculiarly flagrant infringement has taken place here. There have been cases here where litigants have been interfered with by Parliament. I think the first case where such legislation was introduced was that of Lynam and Butler, indicating that, if a litigant went to the Privy Council, he would find himself thwarted by legislation here.

That particular legislation was brought in to implement a decision of the Irish Supreme Court, to prevent that decision from being altered, no matter what judgment was given outside this State. There has also been legislation after a particular judgment, in which it was stated: "Yes, a judgment has been given, certain litigants have got a judgment, and will benefit by it. We are going to leave these particular litigants their benefit, but we are going to take legislative steps to ensure that, in future, that judgment will not be repeated, and that no other persons except those particular litigants will benefit from it." That particular type of legislation was criticised. There were certain defects and certain criticisms of it. Whatever may be said against that legislation, it is quite different, if Senator Madden is correct, from what is being done in this particular section, because what is being done here is: a successful litigant is being met at the door of the court, with the judgment of the court in his pocket, is being knocked down, and the judgment taken out of his pocket. He is being deprived of the benefit of the judgment he got in court. That is a completely new principle, apart from the small amount of money involved, any inconvenience to the public or anything which might happen in County Limerick. I think the principle is of much greater importance than any of the details of the drainage schemes or of the operations or acts or omissions of the Commissioners of Public Works. It is on that basis only, and very briefly, that I wish to refer to it.

There are two parts in the section, as Senator Madden has pointed out. One of them is retrospective in the very worst sense, in so far as it deprives people with a judgment in their pockets of the benefits of that judgment. The other part of it sets out that certain things that were in the judgment already given are to be altered—that the law is to be altered even though the judgment had been given. The first thing we do in the section is to deprive a litigant of the benefits he has already gained in our own courts, and that is peculiarly vicious. I do not want to know the names of the judges or to hear the particulars of the judgment, but merely as an ordinary citizen and as a legislator I say that, when the courts have given a decision, the people in whose favour the decision was given should not be deprived of the benefits accruing to them, whatever that decision may be.

There may be a case for saying that a particular mistake was made, and that the law has now to be altered. We are all in complete agreement that the Oireachtas has power to alter the law, but what is being done here is much more important than that. The litigant who has obtained a judgment has now to be knocked down, even while he has that judgment in his pocket. That is something we should not do. It has a very peculiar effect, and cuts at the very root of our whole system, because it makes the Government in the first place and Parliament in the second place the interpreters of the law, and it makes your position depend not on what the judges may say at a particular moment but on what at a particular moment a particular Government with a Parliamentary majority may think, even after the case has been heard and the judges have given their decision. That is a peculiarly vicious principle.

For that reason, and with no regard to the merits of this particular case, which were ably put forward by Senator Madden, and also without any regard to the local circumstances, I am in support of this amendment to delete the section. I am against putting the section into the Bill because it introduces a vicious principle, against which I wish to protest. What is being done in regard to the Limerick County Council by this particular Government and Parliament could be done at a future date against anybody by any Government. It is not a matter of this Government, nor is it a political matter at all; it is the old case where the Executive considers that it is right, and that it has the power to put itself in the right, and will exercise that power ruthlessly and in defiance of the best principles of government. Therefore, I am against this section, and will certainly vote to have it deleted.

As a County Limerick man, I have been interested in this controversy between the Limerick County Council and the Commissioners of Public Works, and I am absolutely impartial. I have listened to a number of speeches here, and I have read the reports of the debates in the Dáil, and all I can say is that in connection with this controversy there has been a considerable amount of heat. Let us come down to bedrock in regard to this matter. In order to do so, it is necessary that we should be able to ascertain exactly what the judgment of Mr. Justice Overend was. I am a lawyer, and I am anxious to get to the bottom of this matter, but as I have had no contact with the Limerick County Council or with the commissioners I have been unable to get a copy of the pleadings in the action or a copy of the judgment.

In this case, I think the commissioners have, so to speak, been their own worst enemies; they have not made the position public, with the result that people who are speaking on behalf of the Limerick County Council —well intentioned people—have been enabled to make statements which are apparently in conflict with the facts of the case, and in conflict with the judgment given. The only information I have been able to get has been obtained from reading the debates in the Dáil and extracts from the judgment quoted by Deputies for the county.

Senator Hayes has spoken of the Limerick County Council as a successful litigant emerging from the court with a judgment in his favour, and that litigant being knocked down, and the benefit of the judgment taken from him by retrospective legislation passed to make a nullity of his victory in the courts. I could well understand that this would be retrospective legislation if this Bill enacted that the costs awarded to the Limerick County Council should not be paid to them. That is the only victory they got in this connection as far as I could gather, but I am speaking without the full facts. I have been trying to gather the facts from Senator Madden's speech and from the speeches of Deputies in the Dáil, but, if I had the pleadings and the judgment before me, I think I could make a good case against this amendment. I am not sure of my facts, but I understand that this action was started a number of years ago by the Limerick County Council, and that they succeeded only because the Board of Works played into their hands and made a final award after the action had been started—that the council gained its victory not because of the intrinsic merits of their own case but because of the foolish action of the commissioners. At all events, as far as I could gather from the judgment of Mr. Justice Overend, the draft award and the final award were prematurely made by the commissioners. The draft award was made under the provisions of the Arterial Drainage Act, 1925. If this Bill had not been introduced, and if the Drainage Act, 1925, were not repealed by this Act, I see no reason why the commissioners should not have proceeded to make a new draft award and a new final award.

A new inquiry is what we wanted.

And a new inquiry. I want to clarify the situation and would like the Parliamentary Secretary to say whether he stands over the statement which he made in the Dáil on the 10th November, 1944, as reported in columns 989/990 of the official Debates. He said:

"The position as a result of the decision of Mr. Justice Overend is that, if amendment No. 158"—

that is, this Section 58—

"was never inserted in this Bill, we could proceed on the day following the giving of that decision to have a new draft award inquiry based upon the full and actual expenditure incurred and that we could put the further expense, the further costs, with all the unnecessary trouble, on the shoulders of the ratepayers of Limerick. We could follow that draft award inquiry by a final award and we could hand over the scheme as it is, costing £36,000 odd, the amount shown here, together with the cost of the second draft award inquiry, and pile all that on the shoulders of the ratepayers of Limerick. That is the effect of the decision of the High Court about which we have heard so much nonsense."

Those are the exact words I used, and I used them after having made all the inquiries and sought all the assistance, as to the interpretation of the decision, that I could lay hands on.

I am an outsider as far as this action is concerned, as I have had no contact with either party. Unfortunately, I am handicapped, as, if I had read the pleadings and the judgment, I would be now in a better position to speak on it. I think these documents should be available for members of this House, in order to enable us to get to the bottom of this controversy. We have heard so much about retrospective legislation that it is time to determine whether there is retrospective legislation or not. It appears to me that, if this Drainage Bill which we are now discussing, had never been on the stocks at all, when the draft award and the final award had been set aside by the court, there could have been a new inquiry, a new draft award and a new final award, and then the liability of the county council could have been imposed under the new and valid final award. I may or may not be right in that. However, instead of allowing the Arterial Drainage Act of 1925 to remain in force as far as this particular drainage scheme is concerned, the commissioners apparently thought it better that the Act should cease to function and that this section should be inserted in this Bill in lieu thereof. That is the reason for the introduction of the section.

If the Parliamentary Secretary is correct in the statement which I have read and if that is the correct legal position, then the Limerick County Council has not been deprived of the result of its victory. The victory was the setting aside of the draft award and the final award. If the Limerick County Council had succeeded in the action, in establishing the fact that they were not liable to contribute any moneys at all to the commissioners, then this would be retrospective legislation. But it appears to me that it is legislation for the purpose of putting into operation the provisions of the Arterial Drainage Act of 1925 in respect of this drainage scheme which they could not put into operation if they had repealed the Act as a whole.

Having taken a middle and detached view of this matter, I consider that the grievance of the Limerick people might not be as great as it appears to be, if the real facts of the situation were clearly put forward. When this new section was being inserted by means of an amendment introduced in the Dáil, the Parliamentary Secretary said but very few words. As far as propaganda is concerned in this matter, the Limerick County Council has won by streets. There has been no propaganda on the part of the commissioners, who apparently are content to remain as hated bureaucrats and tyrants. I have only been able to read an extract from Mr. Justice Overend's judgment as quoted in the Dáil by Deputy Keyes on the 10th November last, reported at columns 960/961:—

"The commissioners in this case took a very unusual course, for on the 29th July, 1942, long after this action had been commenced——

I think the county council would not have gone on with the action at all if the commissioners had not put their two feet into it and given them the chance which now they are talking of as a victory—

"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 application to the court. I am not apprised of the circumstances under which this step was taken and it may well be that an impasse had been reached in which the commissioners or their advisers came to the conclusion that no other course was open to them."

I say that the course open to the commissioners was to apply to have the action of the Limerick County Council dismissed, for failure to proceed with it. Instead of that, the commissioners gave the action a new lease of life. The action was dying, because the council were either afraid to go on with it or for some other reason they did not go on with it. Instead of moving to dismiss the action, for want of prosecution, the commissioners proceeded to make the final award which the council was seeking to restrain them from making. In other words, they played into the hands of the council.

Mr. Justice Overend continued:—

"Be that as it may, the plaintiffs have not been in any way prejudiced, for it is not easy to think of anything more advantageous to them than that the commissioners should have demonstrated under their Seal the extraordinary length to which they were prepared to go in the assumption of power, and their impartial and unhesitating disregard of the right of citizens, the county council, the Minister, and even the State itself."

That is, remember, making the final award in the teeth of the application to restrain them. He continues:—

"It is clear upon the evidence that the works which have been done have resulted in very substantial benefit, though not perhaps commensurate with their ultimate cost, and I assume that all the work done was expedient, beneficial and proper to be done pursuant to the scheme and that the sum of £36,951 was expended entirely on such works, as is recited in the final award,"—

in other words, the judge holds that the work was beneficial, that the people got value for the money which the commissioners spent and that it was spent as recited in the award—

"but it is also clear that at the date of the inquiry these works were incomplete. It was proved before the inspector, who was satisfied that there was important work which still required to be done, for instance, the grading of the Cunnagavale and Coolnapisha drains. In these circumstances the draft award was, as I have already indicated, premature,ultra vires and a nullity and it follows that the so-called final award, of which there was never any draft, which could comply with the Statute, was and is also ultra vires and void.”

That is to say, the commissioners made a mistake in their procedure. They spent the money, they spent undoubtedly more than the council was willing should be spent, so far as the council's portion was concerned. At all events, the money was spent and the judge finds that a good job was done. In this case, it is perhaps a question of a few thousand pounds between the council and the commissioners. It may be possible to compromise.

Hear, hear.

The people of Cappamore and Mulkear, with whom I have great sympathy, have got drainage works of value. As far as I can gather, the council agreed to contribute a certain amount from the very beginning. By reason of further expenditure which was necessary, the contribution of the council has been increased by £4,000 or £5,000, or will be increased.

The estimate was increased by £14,000 from the original.

The contribution of the council will not be increased by that amount.

About £5,000.

But the scheme is incomplete yet.

Every scheme is incomplete, and will be so until the end of time. Let us take one thing at a time. We are now talking about the judgment of the High Court and about this particular section. The grievance of the people of Limerick might be lessened if there could be a compromise between the commissioners and the council, and if each would admit its own blame in the matter.

Hear, hear. We will pay half.

That is all you are asked to pay.

After all the heat there has been in both Houses, a happy solution of this difficulty would be that each side should bear half the additional expense. Whatever feelings have been wounded in this controversy, they should then be healed. It strikes me as remarkable that this controversy has dominated this Drainage Bill, and it is also remarkable that several Deputies for Limerick have spoken against it and of these four voted for it.

That was not remarkable.

The Senator is very innocent.

At all events, it has been a kind of entertainment for some time in both Houses. I think that both the Limerick County Council and the Commissioners of Public Works as sensible people should realise that the time has come to stop this senseless controversy between two responsible bodies. They should make a deal, each side admitting its own blame in the past. Let each side contribute its own share —I would say half—to make up the difference and bring the matter to an end, and let this section go through as it stands in the Bill.

I am not a lawyer. I am very much disappointed by the speech of the last Senator. I really hoped after he had explained that my mind would have become pretty clear. As it is now I feel that if, by any miracle, I were counsel for the Limerick County Council and he were the judge, I would not know whether to move for judgment or not. I do not know whether he is in favour of the deletion of this section or whether he thinks it should remain. On the whole, I think he is in favour of something different from what is in the section and that therefore he is in favour of its deletion. But the real reason why I have risen at all is that I am hoping that in some simple way the Parliamentary Secretary, or somebody else, will answer what to my mind is a simple question. The common opinion, and one which I have shared, if you like in my ignorance, because I have only had the Bill and what I read in the Press—I did not even read the Dáil Reports because from experience I find it very much better to forget all about what I may have heard about the Dáil when I come to consider a Bill in the Seanad and, except in exceptional circumstances, I have given up reading the Dáil Debates—is that this particular section purports to legalise an award which a court had previously declared to be illegal.

Whether it is desirable or not that there should be a change, the simple point to my mind is, is that true or is it not? If it is true, then it is retrospective legislation and it is bringing in the machinery of Parliament to quash a decision of a court. Whether it is desirable, apart from this, that there should be a compromise by paying half and half, which seems to please equally Senators Ryan and Madden, to my mind is beside the issue. The issue to my mind simply is: is this bringing in Parliament to upset what was declared by the court to be the law at the time? If so, I think it is fundamentally bad and I would be bound to vote for this amendment unless I am satisfied that that is not so.

If, frankly, I had to deal with the simple merits of the Limerick dispute, I would not be able to vote at all without a good deal more knowledge than I have got. Therefore, I want if possible, to have my mind cleared up, if I am wrong. At present I still think that this section purports to legalise an award which had already been declared illegal by the High Court of Justice. If that be so, there is a very serious principle at stake. I gather that that is a very general impression. I do not agree with Senator Ryan that the commissioners should start propaganda. I have a good deal of respect for them, but I would have very little respect for them if I thought they were going to start Civil Service propaganda. I do not think he meant that. I think there ought to be some kind of clear statement. At any rate, at the moment it is believed, and I believe it, that this is really retrospective legislation for the reason I have stated. If so, it means that, administratively, Parliamentary assistance can be sought at any time and on any issue to override a decision of the courts which the Executive of the day are advised by Civil Service officials that a Department does not like.

I have been a member of this House for a great many years. We have had again and again experienced—and it has nothing to do with Party politics or which Government happened to be in power—that what we thought to be the law when we passed an Act turned out not to be as we believed it to be. That will always occur. The question is: how are you to deal with it? I maintain that it is the courts and only the courts that can or should interpret the law after a Bill has passed both Houses. If it is interpreted contrary to what Parliament wishes, Parliament has its remedy; it changes the law, but that does not affect what has occurred in the meantime. It would be unconstitutional to make an act illegal which was not so when it was done. This, of course, does not make an act illegal; therefore it is probably within the Constitution. But, fundamentally, the principle to my mind is the same. If the public were to get the impression that, if they disagree with the administrative view as to what is the meaning of an Act, it is useless to go to the courts, because, if the courts back their view as against the administrative view, the Department will go to the Government and the Government will go to the Oireachtas with a majority and proceed to change it, the public will not go to the courts. It means that confidence in the courts will be weakened and to my mind that will be a weakening of our whole democratic position. Now, if that is not so, as it is commonly believed to be, I believe it is extremely important not only that we should have a clear statement here, but that the public should be convinced that it is not so. The belief is that this section does purport to legalise an award which has already been declared illegal by the High Court of Justice.

I have approached this matter with a very open mind. I heard whisperings outside the House that this was an attempt to override a decision of the High Court. I had made up my mind that, if there was an attempt made to reverse a decision of the High Court, I would vote against it. But I was disappointed when I heard the speeches of Senator Madden and Senator Hayes. Although they referred to general principles, they did not come down to the facts of this particular case and we only got the facts from Senator Ryan.

I know a good deal about these drainage schemes. I know a good deal of what happened in connection with several schemes, and of injustices which have occurred through the merest technicalities. I knew of one scheme in our county where there was an election of trustees. When the document was sent down from the Board of Works for the approval of the chairman, that document should have been sent back to the Board of Works and the seal of the board affixed to it. It should have been published in the Press calling a meeting to elect trustees. Instead of doing that, the chairman, a Mr. MacDermott, signed the document himself and published it in the papers. A meeting was called and trustees were elected. After their election, they went into the bank and raised £1,000 and spent it on the drainage. They were the only trustees who, for a long time, spent money in that particular drainage district. They levied rates on the people whose lands had been improved, but the people refused to pay these rates. They brought them into court and the County Court Judge dismissed the case on the grounds that the trustees were not properly elected. The trustees appealed. It took three years before an Assize Court was held at that time and the Assize Court confirmed the decision of the County Court Judge. You have the result that the unfortunate trustees, many of whom could not afford it, raised money in the bank and they had to pay back that money, and they did not get one penny from the people whose land was improved. I have no sympathy with that kind of negotiation. I have no sympathy with people whose lands are improved and who refuse to pay for the improvement. I know there are other cases where, through technicalities of that nature, the farmers whose lands were improved considerably defeated the claims of those who brought about that improvement.

In this case it is clear that if there was a mistake in the making of the award there was nothing in the 1925 Act to prevent a new award being made. If this Bill says that no scheme shall be concluded under the 1925 Act, then I say it must give the commissioners power to make that award, whether it is in the same or in different terms I do not care. This is not legislation which is meant to upset the decision of the High Court. I presume the costs in the High Court action have been paid to the Limerick County Council. Therefore, that decision has been honoured and there is no agreement as far as the council are concerned. I propose to vote against the amendment.

Senator Ryan's explanation seems to boil down to this, that the one and only reason for putting in this new section is because the Act of 1925 is being repealed by this Bill. The Parliamentary Secretary stated that had the 1925 Act remained, he could proceed to make his draft and final award under the provisions of that Act. Rightly or wrongly, there is a general feeling of resentment, even on both sides of the House, against any attempt to interfere with the decision of the court. There is a feeling that this is creating an interference, and there is a challenge on the part of the Parliamentary Secretary, and Senator Ryan seems to think that the Parliamentary Secretary is in a position to stand over the challenge, that had the Act of 1925 remained he could proceed to make his draft and final award. I suggest it would be possible, by a little alteration in the drafting of this Bill, to allow the 1925 Act to continue to operate with reference to the Mulkear drainage until this contentious question was settled; in other words, the appointed day would be deferred. Then the financial questions that arose could be settled and the whole thing disposed of to the satisfaction of everyone.

In making a suggestion like this, I do so with trepidation, because of the very able lawyers we have amongst us; but I think it is a commonsense way of getting out of the difficulty. The honour of both sides will be preserved, and the feeling that our courts are being interfered with no longer will have any justification. I suggest that as a possible way out. I would like to take up the suggestion made by Senator Ryan, that, in so far as the several points at issue are concerned, there ought to be some liberality shown on the part of the Parliamentary Secretary and the commissioners. The whole case should be settled, and we should not have feelings aroused over, such an insignificant matter. The Bill before us outlines a great national undertaking, and why should people be, as it were, exasperated? That feeling of exasperation will continue, is bound to continue, and will affect the harmonious working of this great national undertaking.

I understand that an arrangement has been arrived at to have the question put at 10.45 p.m.

I understood that the hour agreed upon was 11 p.m.

Not later than 10.45 p.m.

That has been more or less agreed to; but while that is so, I do not think it would be the wish of the House to curtail the speech of the Parliamentary Secretary.

I might speak for ten minutes or for 35 or 40 minutes. I would not like to be tied down to time. At the same time, I would like to observe any agreement that has been arrived at, if there is an agreement.

We shall finish as quickly as we can.

Say 11 p.m. and the question can be put earlier if necessary.

As I understand the situation, it is this: Once a draft award is prepared and there is an inquiry into that draft award, the commissioners are entitled to add to it all reasonable additions. I understand that the view of the Limerick County Council is that the additions that were made in the Mulkear case were not reasonable and that the only way they could challenge whether these additions were reasonable or not was by going to the court. Having gone to the court, they got from Mr. Justice Overend this comment:

"Counsel for the commissioners was driven to contend that the draft award need not await the final completion of the works."

Then he went on to mention some figures and he continued:—

"If the section had such operation it would indeed be difficult to conceive a provision more drastic or unjust."

If the situation is as I understand it, that the only method they had of challenging the additions—as to whether the additions were reasonable or were not reasonable—was by challenging them in that way, and that method of challenging is taken away in this section, it appears to me that Senator Ryan was speaking entirely incorrectly when, as he said himself, he was speaking without the judgment of Mr. Justice Overend before him, and that Senator O'Dea was also in the same place. If I may risk saying so as a mere solicitor against very learned senior counsel, I think they were giving a legal opinion without having the facts before them, and it is an opinion to which this House should not, for that reason, lend any weight.

With regard to the remarks which have just fallen, may I make it clear that I have been unable to find out the facts of this case or to get the judgment and, therefore, I am approaching it on the basis that the section does not necessarily involve retrospective legislation but that it has all the appearance to the public of so doing? If that be so, just as it is necessary not merely that justice should be done but that it should seem to be done, I submit that it is necessary not merely that the Legislature should avoid retrospective legislation but that it should not appear to be sanctioning it and, to any person who approaches it in the same state of unbaptised ignorance that I do, the first thing that would strike one is this, that to a Bill of a general nature, making general provisions for drainage all over the country, you find tagged on a section which is not general but particular, which does not extend to the whole country but is local, and which has a distinct reference within it which would make anybody come to the conclusion that it was passed for the purpose of modifying or altering something which has already been done by the judiciary. I do not go further than that because, as I say, I do not want to be considered as giving any legal opinion. I am taking the section as any ordinary man would take it or as any ordinary man would interpret it.

I congratulate the Senator on the neatness with which he has expressed that view.

I am quite honest about that. I am not trying to stymie anybody. The next thing that strikes me is this. The extract which Senator Ryan read from the speech of Mr. Justice Overend was one which was not entirely complimentary to the action of the commissioners and which intimated the view of a very learned and very careful judge, that the action of the commissioners in this case had been arbitrary and unwarranted. Again, speaking as an ordinary man, with only those facts before him, when he finds that in an action taken by an individual—and, of course, the county council being a corporate body may be regarded as an individual—the judge has given a decision in favour of that individual, and coupled with it the suggestion that the action of his opponents has been rather coercive, and when he finds a single section which obviously has no natural place in a general Act of Parliament, tacked on to it and bearing within its four corners every evidence of an intention to modify the decision of the judge in favour of those very people, who, the judge said, had already acted in a rather unwarranted and coercive manner, then to the ordinary man in the street it looks very much as if this section does transgress all the principles which should restrain a Legislature from passing legislation which may seem to be retrospective.

As I say, I approach it in ignorance, not as a lawyer, but as an ordinary man in the street, and I would suggest to the Parliamentary Secretary that if I in any way correctly interpret what would be the mind of the ordinary man in the street, it would be better to take this section out of this Bill, and, if necessary, introduce a short Bill in which the whole matter could be cleared up, so as to avoid the very prevalent impression. Alternatively, if such a procedure could be devised, and I imagine it could, let the section go out and be introduced on the Report Stage, together with a statement of facts, such as a summary of the pleadings and the judgment which would enable this House to make up its mind on what is being done. I do not intend to vote for the striking out of this section if I am convinced that there is nothing in it which in any way embodies the evil of retrospective legislation, but if I am not convinced about that I shall vote for its deletion.

My anxiety is that of one who has suffered, perhaps during his entire lifetime, from the flooding of lands due to neglected drainage schemes. My one desire is that this Bill may prove a success but its waters are going to flow through a very difficult channel and it has a lot of impediments in front of it. It starts off with a certain prejudice, a prejudice of history and tradition due to the absolute want of success of many previous schemes and what one might almost call confiscation and robbery of the rates that have been collected on foot of such schemes. I appeal to the Parliamentary Secretary not to start off by having one county council prejudiced against the Bill. I appeal to him to do everything humanly possible to redress any grievance that may exist there. I hate to enter into any discussion of our courts or any criticism of our judges, necessary though it may be because of what we in Louth have experienced in the last 20 years from certain court decisions and in relation to certain Circuit Court judges with whom we have had to deal. It is quite desirable that lawyers should use every effort to bring their views before the public and possibly to bring themselves before the public as well, because I am sure that upon their successful advocacy of causes that are popular depends their entire career. The career of citizens who have to deal with the people as public representatives, county councillors such as Senator Madden and myself, is equally important and very often we have to suffer a silent grievance.

If there is one thing wanted in Ireland to-day it is public spirit and it is to be deplored that that public spirit is very often conspicuous by its absence from some of our public boards. In this instance, however, I think that nobody can question the sincerity of the activities of the Limerick County Council. Without going into the technicalities of the case, I think that the overwhelming evidence is that their attitude stands to their credit. With a view to encouraging private citizens who are not seeking jobs, judgeships or other preferential treatment, to come forward to act on behalf of the public on various public boards, I think that the views of such boards should receive sympathetic consideration. The position of the Government, enhanced as it is by the prospect of five years' further power, should induce them to be liberal in these matters.

Citizens sometimes see, as I have seen, an advertisement in the papers with the words: "There is the pain; where is the Sloans?" The pain in this instance is felt by Senator Madden and councillors like him who have no are to grind or anything to gain through Party advantage.Au contraire, we belong to a minority, possibly a dying minority, coming forward to a majority with our grievance. We place our entire cards on the table and we ask for justice. The future success of our agriculture depends on the Government. It is in the power of the Parliamentary Secretary to kick the ball through the goal, so to speak. Justice demands consideration of our grievances. In this case it strikes me that the remainder of the Twenty-Six Counties might be called upon to stand in as taxpayers rather than that the ratepayers of Limerick should be prejudiced, perhaps more seriously than any effort to gain popularity or Party advantage could bring about. The bigger cause is the cause of economic administration, and since I want this Bill to run on an even keel and want to be in a position to stand behind the Board of Works in whatever position I may be, either as a riparian owner or as an administrator, I think the very gravest consideration should be given to the claims made by the Limerick County Council, and I for one will support them.

I have heard so many and so much that I do not know where to begin, but there were two Senators whose contributions I enjoyed. They were Senator Kingsmill Moore and Senator Douglas. I have not met either of these gentlemen very often, but I will say this about Senator Douglas, that he can play the non-political Senator as well as any man, and in fact he did it so well to-night that——

You are going to withdraw the section?

——I was impressed by the display. I was inclined to look behind him at Senator Kingsmill Moore and to say: "Now, here is a layman who is in difficulty as to whether or not this section is in fact what is regarded as retrospective legislation. Is it not surprising that Senator Douglas does not seek the assistance of Senator Kingsmill Moore in order to be informed as to what the position is?" I assumed then that Senator Kingsmill Moore had made up his mind not to speak, but, to my surprise, he stood up shortly after Senator Douglas and did something which is described very aptly in this country as dodging the column. He dodged the column as neatly as any lawyer and in fact it was only a lawyer who could dodge the issue as neatly as Senator Kingsmill Moore.

Some politicians are pretty good at it.

I was impressed, first, by the non-political speech of a very political Senator, and, secondly, by the non-legal opinion of a very legal gentleman. I was rather pleased to find, in the course of the discussion, that there were some people who should know who do not regard us in the Board of Works as the villains, rascals and scoundrels we have been held up to be by Senator Madden, the Limerick County Council and all the non-political people who have made it clear so often that all this campaign down in Limerick had no significance other than to ensure that the citizens of this State would be protected and that the rights given them under the Constitution would be preserved. That is a grand appeal to make in the county council chamber, and when that appeal is made in the county council chamber to political county councillors, all of whom will benefit if the appeal should succeed, it is very easy to get the point of view of the ordinary man in the street accepted, as Senator Kingsmill Moore stated, in that particular way.

There is a neat way—there is no use telling those of us who have had experience of it that there is not—in which a situation such as this can be used by a very able and very experienced representative such as Senator Madden undoubtedly is, but when Senator Madden was using all the eloquence he used for an hour here, one simple question came to my mind. He drew our attention to the fact that this scheme originated in a scheme between two parties. He should have said three parties—the State, the local authority and the riparian owners in the district concerned. If the Senator had used half the eloquence on the Limerick County Council which he has used in this Seanad—for whatever purpose, I am not interested to say—the Limerick County Council would have continued to co-operate and to abide by the agreement on which activities were started in that district.

If this county is so wealthy—and I paid tribute to it in the other House and do not want to detract from anything I said in that regard—and I should say that it is the wealthiest in the State, is there any Senator— Senator Baxter, Senator Douglas or those who will give a non-political vote on this issue—who can put forward a reason as to why this wealthiest county in the State should be relieved of a burden which the poorest county has borne? I am a layman, and in the other House, as the records show, I have challenged the lawyers who were twitting me to give me their interpretation of the judge's decision in this case. Did they do it? Read the reports, and you will find that they did not do it.

Senator Kingsmill Moore to-night did not do it. I am not complaining, and I am not blaming Senator Kingsmill Moore. He is a very important man at the Bar. I have seen questions addressed in an assembly such as this to very important legal gentlemen and I always found that in most cases these legal gentlemen proceeded to give lengthy and involved opinions all woven into a mass of words, so as in fact to evade the issue. Senator Kingsmill Moore is not expected here to comment on, nor is he paid for commenting on or interpreting a legal judgment. I sympathise with his approach, with his point of view, but I challenged in the other House the people who were twitting us for introducing what they alleged was retrospective legislation to give us an interpretation of the judge's decision. I challenge these people here now. Senator Douglas sought advice. He sought an opinion from me, and I know that, no matter what opinion I gave, he would not accept it. If I had on my left here half a dozen of the best lawyers in the world and if they were likely to see things politically from my point of view, he would still not accept their opinion. I ask him now why he does not turn to his rear, to a Senator who has something in common politically with him, and get from him a clear expression of opinion if he is in doubt as to what is aimed at in this section.

For the very simple reason that the Senator said he had not got the facts.

There is a way of getting them. That is another dodging the column device. I discussed this case very fully in the other House and if I wanted to get down to starting at the beginning I could speak from memory on it for two hours. I do not want to do that. As a matter of fact, as I said during the Second Reading discussion, I hate having to repeat myself on a matter of this kind, but there are some few matters to which I should like to refer. Senator Madden referred to the receiving by me of a deputation from Limerick and his description of the arrival to the Office of Public Works is perfectly accurate. When the request that I should receive such a deputation came from the county manager, I said to the commissioners: "What is the use of my receiving this deputation"? I said, in effect: "What can I do for them? I am not prepared to make the only concessions with which they would be satisfied." Then, I thought it over in my mind, knowing how a public man, and especially a man holding a Ministerial position, can be misrepresented, as our engineers and experts have been misrepresented for years in connection with this scheme, and I felt that it would be better not to say to those gentlemen that I could not receive them, although I knew it was a waste of effort, of time, of money, and so on, to ask them to come up here and receive them.

Now, the county manager, in giving the people of Limerick a report of the proceedings that took place on that occasion and the points that were raised in that interview, proceeds to state that I used that opportunity to bring these people up merely for the purpose of giving them a lecture. I did not ask them up. It was they who sought the interview. I did not refuse them the interview, and if they are to regard what I said to the county manager—able and all as he is—as a lecture, then I say that it was the soundest lecture ever given to any man occupying a public position. It contained commonsense, and if it had been acted upon by the parties concerned, and if this matter of the Mulkear and Cappamore scheme had been honestly continued, things would have been different. Senator Madden, however, has failed to explain the predicament out of which his people in Limerick were taken in 1932. The riparian owners challenged you, and got damages from you.

On a point of order, Sir, should not the Parliamentary Secretary address the Chair?

An Leas-Chathaoirleach

Yes, that is the procedure.

Well, a Leas-Chathaoirhigh, I am glad, in a way, that I am only a young gossoon, but I have been in public life for a long time—over 20 years—and in all the Assemblies in which I have taken part I may not have adhered to the strict rules of procedure at all times. I hope, however, that I have always done my best to adhere to these rules, and if, in my enthusiasm, I have erred in connection with this matter, I can only say that I am sorry. There are some people in whose minds there would seem to be nothing but "points of order". It is a wonder, however, that Senator Madden did not tell us the interesting tale of the farmers who brought the Limerick County Council into the High Court in 1932 and got a decision in their favour. As I said in the other House, the Limerick County Council, which was responsible for this district, and that had engineers who, we were told, were towering above everything or anything that we could produce, were hauled into court by the farmers concerned, who got a decision there, with costs and expenses; and is it not an extraordinary thing that this wonderful local authority, and these wonderful men in their profession, could not succeed in maintaining this district, and that the riparian owners could take them into court in six or 12 months' time, as a result? As a matter of fact, there were other riparian owners waiting to see what would happen. It was in that setting that Senator Madden and others came up to this Government, and although the records of the Department over which, at the moment, I preside, show that the advice of our engineers was to the effect that this was a difficult and dangerous district in which to construct new works, our Minister, seeing the hopelessness of the council's legal position, and seeing the difficult financial position that was involved, overruled the technical advice given to him and said, in effect, that the State is bigger than a local authority and that, since the Limerick County Council is a good and advanced institution, we will come forward and relieve them from this difficult and almost impossible position.

On a point of order, Sir, I think that the Parliamentary Secretary completely misrepresents my position.

An Leas-Chathaoirleach

That is not a point of order, Senator. It is a point of correction. The Senator will get an opportunity of replying.

Can I not deal with it now?

An Leas-Chathaoirleach

The Senator will get an opportunity later, of replying, if he desires to do so.

I take it that the Parliamentary Secretary will also get an opportunity of replying.

I do not like, Sir, to introduce a matter of this kind into a non-political Assembly such as this is supposed to be, but it seems extraordinary to me that a man with the eloquence and influence of Senator Madden, when the Act of 1925, affecting drainage and works of this kind, was introduced and passed, should have failed to influence the then Government, of which he was a very ardent supporter, to come to their help in Limerick. That was seven years before the actions of 1932. It is very easy for Senator Madden to occupy the position of the hurler on the fence, but I do not know what it was that hindered that Government, of which he was a very ardent supporter, from coming to the rescue of the Limerick County Council in 1925, as we came to their rescue in 1932, seven years later. I am disappointed. I really am disappointed. I hope I am as good a politician as anybody else.

Hear, hear! We hope you are.

Well, I hope I am; but in any case in which I had to make a decision on a matter of this kind in connection with a county council of which I was a member, there is every record there to show that, if and when I was a party to an agreement that was entered into, I saw to it that whatever political kudos might pertain to belonging to a Party or breaking away from it, I tried to keep that agreement to the end. The amount involved is only £5,000 odd. If the share of the riparian owners were to be taken into consideration, it would be £10,000 odd. A penny in the £ in County Limerick yields £2,000. Senator Baxter has been talking about a scheme in his and my county, the estimated cost of which was £66,000, to which the local authority there contributed its share. When the works were carried out the cost was £20,000 additional. In that county a penny in the £ yields about £1,000. Yet, the county council there not only paid their share as a county council but, in order to secure the economic benefits to the riparian owners as originally contemplated, took the responsibility of carrying their share of the burden and raising the amount as a county-at-large charge. Let those who are going to give a non-political vote on this issue consider that. Let them ask themselves if there is any good reason why the people of Limerick should be relieved of a burden which has been borne in 35 cases by people of other counties under the 1925 Act.

Are there any peculiar circumstances about the people of Limerick which entitle Senator Madden to come before this Assembly and ask for treatment which has not been meted out to poorer counties in which a greater amount of money was spent in this way than was spent in Limerick? If such a case can be made, I should like to hear it. I have not heard it up to the present. We are told that Parliament makes the law and that the law which Parliament makes should be observed by everybody, including Governments. Some of those who wish to use these questions for propaganda purposes talk about the undermining effects which this sort of section has on our constitutional position. I ask legal men and others to say, when Parliament sets out to do a certain thing and the actual instrument which results does not, in the opinion of the court, do the thing which was intended, is there anything wrong in adopting this course?

If Parliament obviously intends to give us certain powers in this Bill and if those powers are not, in fact, given, it is obvious that the right words have not been used by Parliament. In essential matters, it is commonsense that the law should be amended where it is obvious that Parliament desired to do a certain thing and failed to give effect to its desire.

Amended for the future.

That is the issue between us.

It is not.

An Leas-Chathaoirleach

The Parliamentary Secretary must be allowed to proceed.

Nobody is interrupting the Parliamentary Secretary.

I am not complaining. I came into this House yesterday and to-day with the intention of saying: "Here in the Official Report of Dáil Éireann, I have given a complete answer, so far as I am able from my study of the whole background of the case, in regard to this question". I may say that I went back to the beginning and read and re-read and weighed up every consideration that should in justice be weighed up before arriving at a definite decision. I concluded that, whatever the technical position might be, if we had called upon other county councils to meet additional charges imposed upon them as a result of work in excess of the original estimate, there was no reason in justice why we should relieve a county of the magnificence described so vividly by Senator Madden of the same burden. If any Senator thinks that he is voting on this matter because this represents retrospective legislation, I do not agree with him. I do not think that any man who examines the matter legally will agree that it means anything of the sort. This section will secure a result that could be secured otherwise but, if that were done, it would cost the ratepayers of Limerick a much larger sum than the method adopted in this section will cost them.

Will the Parliamentary Secretary accept my assurance that I am interested only in the principle of this matter? His legal advisers have had access to the pleadings, to the facts and to the judgment of the learned judge, to none of which have I access. Has he been assured by his legal adviser that this section is not retrospective legislation? On his answer to that question, my vote depends.

I should not dream of standing up in the other House and dealing with a technical matter of this kind without the advice of those competent to advise me. When I stood up in the other House and made the statement recorded in the report, I did it fortified by the advice of those competent to advise me.

Would the Parliamentary Secretary read his statement in the other House because some of us who ought to have read it have omitted to do so?

Here is what I said:

"What was the decision of Mr. Justice Overend? I have explained about the background and the basis of the Act of 1925 and, not only the background and the basis, but the actual procedure that we followed. The decision of Mr. Justice Overend on that procedure which I have explained was merely this—and I challenge any of the lawyers or budding lawyers either in the Labour Party or in Fine Gael Party or any other Party, to say the contrary—that we were not entitled to spend one penny of money on any scheme after we had held the draft award inquiry."

That finding not only upset the procedure in the Mulkear and Cappamore scheme but it also shook the very foundations of 35 of the other 50 odd schemes that we carried out under the 1925 Act. I went on to say:—

"Again I refer to the piffle which has been spoken in relation to this amendment, the references to constitutional rights and democracy and all the other nonsense. I did not mention the word ‘democracy' since we started. The position, as a result of the decision of Mr. Justice Overend, is that if amendment No. 158 was never inserted in this Bill we could proceed on the day following the giving of that decision to have a new draft award inquiry based upon the full and actual expenditure incurred and that we could put the further expense, the further cost, with all the unnecessary trouble, on the shoulders of the ratepayers of Limerick. We could follow that draft award inquiry by a final award and we could hand over the scheme as it is, costing £36,000 odd, the amount shown here, together with the cost of the second draft award inquiry, and pile all that on the shoulders of the ratepayers of Limerick. That is the effect of the decision of the High Court about which we have heard so much nonsense."

Am I to understand that without this section in the Bill the commissioners could, within the law, have in effect upset the effect of the High Court decision?

That is so.

That, to my mind, is perfectly clear. The Parliamentary Secretary does not seem to see the point of view which some of us hold. I think it is quite right to upset a court decision within the law if it is just, and probably there is a good case for it being done now. I am not taking the case for or against Senator Madden because I am not competent to do so. I can see two sides to it, and very often it is difficult to judge. On the assumption that the Limerick County Council has no case, and that what has been done is just, I still think it is wrong to upset a decision of the High Court by means of an Act of Parliament, and I think so because the principle involved is wrong. It would be wrong even if it was just. That is all that is between us.

I think the use of the word "upset" is unfortunate. There is no such thing in this case as upsetting a decision of the court. The decision of the court was, as I understand it, that the draft award made by the commissioners was premature, and, therefore, that the final award based on the draft award was a nullity. That was the declaration made by the court with costs against the Commissioners of Public Works. The Limerick County Council were awarded their costs against the Commissioners of Public Works and, I presume, have been paid them. If this section was introduced to make the Limerick County Council repay to the Commissioners of Public Works the costs that had been awarded to them and which, I presume, they have received, then it certainly would have been retrospective legislation. But the decision of the court was that the draft award was premature and, therefore, that it was a nullity. The court never decided that the commissioners could not make a further award. It simply set aside the award that had been made by the commissioners, and the commissioners were at liberty to make a further valid award.

But they did not do that.

They could do it under the Arterial Drainage Act of 1925. Instead of doing it under that Act they are doing it by means of this section in the Bill, because I presume this Bill provides that no further scheme should be commenced or executed under the Arterial Drainage Act of 1925. Section 59 of this Bill provides that:—

"From and after the passing of this Act no drainage scheme shall be prepared or carried into execution under any of the Acts specified in Part I of the First Schedule to this Act."

Amongst the Acts specified are "The Arterial Drainage Acts, 1925 and 1929", so that if this Bill had been enacted without the insertion of this section the whole matter would have been left in the air. The Commissioners of Public Works could not have made the final award, or even the draft award under the Act of 1925 because it could not execute the scheme. If the provision in this Bill had been that the Arterial Drainage Act of 1925 should remain in force or that it should continue to apply for the purposes of the Mulkear Drainage Scheme, then nobody would have any grievance, but it is only because of the manner in which it was done. The Parliamentary Secretary has said—and I presume his statement is based on legal opinion given to him—that if this Bill had not been introduced they could have made another award and saddled the ratepayers of Limerick with the costs of a second inquiry. He says he has saved the Limerick ratepayers that cost, and if that is so then this is not retrospective legislation at all. Retrospective legislation is the annulling of a decision of the Court. If this Bill had set aside the decision of Mr. Justice Overend that the draft award was premature or wrong, that would be retrospective legislation. What Mr. Justice Overend decided was that the draft award was premature, and that, therefore, the final award was a nullity. If this Bill had enacted that the draft award was not premature and that the final award was not a nullity, then it would be retrospective, but instead of that it allows Mr. Justice Overend's judgment to stand and them it makes provision for the position created by the setting aside of the award. That is what appears to me to be the case.

There is just one point that I want to make in regard to Senator Sweetman. I tried to trap him to-night. I thought I had him in the trap but he got out of it. I am going to try him again. Senator Sweetman introduced two amendments, one amendment No. 24 and the other amendment No. 25. He made a Second Reading speech on the amendments which struck a high tone—the public morality tone. He pointed to the danger of the powers given in Section 28, the powers of remission given to the county managers and to the bad precedent and the bad effect that that would have upon decent people down in the Barrow area and in other districts, upon the people who, he said, paid their lawful rates. He went on in this way:—

"Now, I am against this thing of giving a concession to the man who holds back, the man who will not pay, who says that he will agitate and get into an association and that if he gets after the local representatives something may happen and he may derive some benefit from that sort of thing: that anyway he will not have to pay any more than the other fellow who does not protest."

The Senator reasoned along that line in the course of his Second Reading speech. His line of reasoning impressed me so much that it brought home to my own mind the danger to which those good people that he spoke about were being exposed by Section 28. I said to myself that I would have to consider that. But we have Senator Sweetman to-night, and, although I do not gamble, I am prepared to bet that if there is a division on this he will go into the division lobby and vote in favour of giving a concession in the form of £10,000 to the Limerick ratepayers simply because they have refused to do what the ratepayers of every other county have done. Now, where is the consistency there? I want Senator Sweetman to reconcile his high public morals on Section 28 with the attitude which I know he is going to take up on Section 58 of this Bill.

I am extremely sorry if I have in any way tended to provoke the Parliamentary Secretary.

I have not tried to do so. I will be extremely short.

The Senator has already said three or four times that he would be short.

Give him a chance. I believe he is a sport and that he knows that I have made a devastating case and that he will succumb to it.

I was asked what I did in 1925, when there was another Government in power. I was not thinking what Government was in power. In 1925 we started, and in 1926 we succeeded; but from 1919 to 1926 I said there was choas. There were many things I could have said and here is one surprising thing. Here is a map open in my hand, made by a distinguished engineer, employed by the Department of Local Government in another capacity. This map has been prepared by him for the riparian owners and bears his signature, and in it the gradient inserted in an important scheme, supposed to be finished, is wrong. Instead of the water flowing into the river, it will flow against the hill, although it is supposed to be draining 1,300 acres. That engineer's gradient and map are being confirmed by the county surveyor and assistant county surveyor of Limerick. It is not only a question of a couple of thousand pounds. We are being asked to take over a scheme which is incomplete and which, if this engineer's report is correct, is defective.

I wish to answer Senator Ryan, this eminent lawyer who has pointed out that the result of Mr. Justice Overend's decision was that the Parliamentary Secretary and the Department could proceed the next day to hold a proper inquiry. Now, at this late hour of 11 o'clock, there is sympathy for the ratepayers of Limerick. We want a proper inquiry and would like to have it now, as it is only at that inquiry that the question of the abnormal expenditure could be raised by the county council. It could not be questioned in the High Court, as there was before the High Court a specific action. I will say no more. I am sorry if I have provoked the Parliamentary Secretary. I wish him every luck and may God protect him. We called on the Holy Ghost at 3 o'clock for aid and I hope the Holy Spirit will come to the rescue of my friends opposite and that they will do the right thing and pass in on this side of the lobby.

I wish to make a suggestion to the Parliamentary Secretary. If this amendment is withdrawn at the moment, would he put in the Library, as soon as possible, a copy of the pleadings, a copy of the judgment of Mr. Justice Overend and any other documents in the possession of his legal advisers? In that way, he would provide us with an opportunity to consider, between now and the Report Stage, whether this is what we believe it to be at the moment, that is, retrospective legislation, or whether the Parliamentary Secretary is correct in saying that it is not retrospective legislation. In that way, we will have an opportunity to get the full facts before us.

I support what Senator Sweetman has said. It is very difficult for people, anxious to take an impartial view of this controversy, to work in blinkers and to speak on matters about which they have no definite information. I read the discussions in the Dáil in order to get a grasp of this subject. I refused to approach either Party before this debate. I could have gone to the Limerick County Council's solicitors or to the commissioners, but I was not going to go to either, as if we were to take a detached view of this, I think we should not be bound to either Party. At all events, in order to ascertain whether or not this is retrospective legislation, it would be necessary to have the pleadings in the action, namely, the issues which were to be tried by Mr. Justice Overend, a copy of his judgment and a copy of the Order on foot, of it, as the Order sets out what the actual effect of his judgment is to be, that is, whatever the declarations he made were and whatever order he made as to costs. I would suggest that these be made available to Senators, between this and the Report Stage.

I also support that.

We all have our own business to do and it must be done in the ordinary fashion. I am not prepared to accede to that request at all. The Seanad is in no way bound to accept the opinions I have given as a result of my consultations. Even if you have consultations between lawyers, you find disagreement and it does not follow that, if you place everything before them, you will get unanimity of opinion on things like that. We are a State Department, with our own machinery and our own ways and means; we have done something which we are satisfied was entirely correct and proper in every regard, and I must call on the Seanad to make a decision, having heard the arguments on both sides.

The last statement of the Parliamentary Secretary was most unhelpful and showed a dog-in-the-manger policy. I have endeavoured to take an impartial view of this case, but if one of the parties to the dispute refuses to put his cards on the table, then I have finished with him.

If public business is to be done——

There is no trouble whatsoever in putting the pleadings before us. They can be bespoken in the courts for a few pounds but they cannot be bespoken except by a person who is a party to the action. If the Parliamentary Secretary refuses to make these documents available, than I consider that this discussion has been a pure waste of time; and I am sorry I spoke at all.

The Parliamentary Secretary does not like points of order, but this might help him. We do not want to go into the history of the Limerick case again, and we should agree that, if this matter is to be discussed on the Report Stage, we should not discuss the history of it. There is a net point of principle running through this and certain information is necessary about it. Nobody is endeavouring to defeat the Parliamentary Secretary, but he has been charged—apart from the merits of the Limerick case—with doing a very grave thing. If I made a mistake regret it and if I got information and thought I had made a mistake I would be quite prepared to stand up and say I was wrong.

I think that, in the heat of this debate, he has been rather misguided in refusing this request. I know he will win the division and win it on the Fourth Stage, too, if it occurs; but it would be very suitable and sound, and very much in accordance with the attitude taken up by Ministers here as a general rule, if the Parliamentary Secretary would agree to consider this matter before the Report Stage and to put the documents in the Library. Then he might find, on the Report Stage— when there may be only one speech by a Senator—that it might go through quickly and without obstruction. I think we should stop talking about Limerick, in particular, and deal with the net point. The Parliamentary Secretary will find that his Ministerial colleagues take a different line.

I am not prepared to consider it at all. I say that this is the responsibility of a State Department. A judgment has been given in the court and the judge's findings are on record.

They are not. That is the trouble.

They are not.

If you get a copy of theLimerick Leader, you will find as full a report of the judgment as you wish.

That is only a newspaper report. We want a certified copy of the judgment by the court reporter.

I think it is unreasonable that I should be asked to go to the trouble of supplying Senator Moore, Senator Ryan and other Senators with all these documents to enable them to sift them for the next three or four weeks, as in the end in all probability I would have to do what every litigant has to do in the end, take someone's opinion and take my chance on it. I am taking my chance in supporting the legal advisers of this Department. They have given me legal advice. It is good enough for me and it is on that legal advice I ask for a decision.

Might I suggest to Senator Madden that he should withdraw the amendment until the Report Stage? We cannot make the Parliamentary Secretary believe that we are only interested in one issue. He believes that the vote will be just the same. A number of Senators believed, as I did until I came in here, that the effect of this is as I said—I do not call it retrospective legislation; I prefer to put it in the other form, that it has the effect of legalising an award that had been declared illegal. I want to consider that. I am not convinced by the arguments put up by the Parliamentary Secretary. but I do not want to give a vote if I am wrong. I ask Senator Madden to facilitate us by bringing this up again on the Report Stage. It will be quite in order as it can be discussed on an amendment and the Parliamentary Secretary, after consideration, may see fit to give us the opinion which will help us.

On a point of order. Does it not require the consent of the House to withdraw an amendment?

An Leas-Chathaoirleach


It is not entirely a matter for Senator Madden?

An Leas-Chathaoirleach

No. The House must give leave to withdraw.

I should like it to be put to the House to see whether the House consents, because in view of some statements made to-night——

What is the amendment?

The matter has been fully debated and I think Senator Madden should divide the House on it, if he wants it decided. He has kept everyone here to this late hour.

There is no amendment except to delete this section and the section will be put in any case. There is no leave required. If you do not have a division on the section, there will be no division.

An Leas-Chathaoirleach

I am putting the question on Section 58.

Question—"That Section 58 stand part of the Bill"—put and agreed to.

Then the amendment is defeated.

The amendment was ruled out of order.

If the amendment was ruled out of order, I do not know what we have been doing here for the last three and a half hours.

The amendment was not ruled out of order.

The amendment was to delete the section. That amendment could only be withdrawn by the agreement of all Parties in the House.

We have already passed the section. It has been put from the Chair.

An Leas-Chathaoirleach

An amendment to delete a section is simply informative. According to the Standing Orders, the question on such an amendment is always put in the affirmative form; that the section stand part of the Bill.

As a further point of order, is it quite clear that we are not to have a rehash of this on the Report Stage?

Not at all.

We can have an amendment to the section.

That is what I want to avoid. I insist on any rights I have.

That is only a pious hope.

There are certain rules of order in this House and, so far as I can, I will insist that they be maintained. The amendment was proposed to-night and it has kept us here for a long time. The consent of the House is necessary to the withdrawal of that amendment. According to the Standing Orders, a similar amendment cannot be moved on the Report Stage.

On a point of order. May I suggest that Senator Hearne cannot raise that point until the next sitting?

And then I will raise it.

An Leas-Chathaoirleach

The question has been put.

I suggest that a meeting of the Fine Gael be held to-morrow to go into this matter.

With Senator Hearne to advise us.

An Leas-Chathaoirleach

I have already stated the procedure. An amendment to delete a section is only put down as information that the section is being opposed. The question is always put in the affirmative.

Section 59 put and agreed to.
First Schedule agreed to.
Question proposed: "That this be the Second Schedule to the Bill."

Is there any Point in asking the Parliamentary Secretary to consider the paragraph in sub-section (3) which states:—

"twice the annual remuneration (exclusive of any allowance for expenses)..."

There would be no point. I was reluctant to go as far as I want.

Question put and agreed to.
Third Schedule and Title agreed to.
Bill, as amended, reported.

An Leas-Chathaoirleach

When will the next stage be taken?

The next day the Seanad meets.

I want to ensure that we shall have the Bill before the 31st March.

There will be no trouble about that.

An Leas-Chathaoirleach

The next sitting will be on the 31st January. Will the Parliamentary Secretary be ready then.

I think the Parliamentary Secretary wants longer than that. I propose the 7th February.

Ordered: That the Report Stage be taken on Wednesday, 7th February.
The Seanad adjourned at 11.30 p.m. until 3 p.m. on Wednesday, 7th February, 1945.