When this Bill was in Committee and I spoke on the matter at that time I had not access to the pleadings or the judgment of Mr. Justice Overend or the order made on foot of that judgment. The Parliamentary Secretary has kindly placed these documents at the disposal of Senators and I have taken advantage of them to glean for myself some of the facts of this litigation. I could not obtain from them any information as to the merits of the engineering scheme itself but I am satisfied that the order made by Mr. Justice Overend was that the draft award was premature, that the public inquiry on foot of the draft award was premature and was not a public inquiry for the purposes of the draft award, and that the final award made was a nullity because it was not made in accordance with the provision of the draft award. Mr. Justice Overend awarded costs of the action to Limerick County Council. I presume that they have been paid or are about to be paid when they have been taxed in the proper way and on the proper scale.
There is no question of taking from the Limerick County Council the costs that have been awarded in the action. The result is that at the present time everything is open. It is as if the draft award had never been made or the draft award inquiry had never been held. What is to be done in these circumstances? The 1925 Act is there and the Commissioners of Public Works would be entitled to make a new draft award and hold a new public inquiry on foot of that draft award and then make the final award. Of course, there may be slight legal difficulties in carrying out that scheme. It seems quite simple, but there may be difficulties which are not yet apparent. At all events that would be the normal position in a normal time, that is, if the law should take its course. In this case, however, the Commissioners of Public Works feel that the time has come when the final award must be made in respect of this drainage scheme, so that as a result of the final award the scheme may be handed over to Limerick County Council for maintenance.
Up to the present the drainage scheme has been in the air. It has been in the hands of the commissioners for a number of years, due probably to the long litigation extending over six years, almost as long as the drainage scheme itself. Commonsense would require that this matter should be brought to an end here and now. While the strict legal right of the county council would be to have this process all over again—the draft award, the inquiry and a final award, and perhaps another action to last seven or eight years—while that may be their legal right, it is I think contrary to commonsense and good business. After a war peace is made. Limerick County Council and the commissioners have, to my mind, waged a foolish war for the last eight years. There have been deputations at intervals from Limerick County Council to the Commissioners of Public Works. Personally, I am opposed to these unwieldy deputations from local bodies which come to see heads of Government Departments, because there is a certainty that among these deputations there is a number of tactless individuals who immediately upset the applecart of negotiation once they enter Government Buildings. I have the firm belief that we would not be discussing this section here to-day if there had been tact and commonsense on one side or both sides in this case.
I have here an Act which was passed in 1943, the District of Fergus Drainage Act. It was passed in pursuance of an agreement between the County Councils of Galway and Clare and the Commissioners of Public Works. If Limerick County Council and the Commissioners of Public Works had agreed that it was time to bring this Mulkear Drainage Scheme to an end it would have been ratified without question by legislation. In this case, however, a different course has been taken. We have heard a great deal about retrospective and retroactive legislation, but this is not, in my opinion, retrospective legislation. It isad hoc legislation, which is worse than retrospective legislation because we are legislating against an individual. It may be a county council but we can call a county council an individual and we can take the riparian owners to be an individual. The position then is that a Parliamentary majority can at any time pass legislation to oppress an individual. I think that is wrong and personally I would fight against it to the end.
Now, if we accept the principle thatad hoc legislation is wrong—it may be necessary in certain events, but it is unnecessary, I say, in this case—then, we must soften the hardship of ad hoc legislation as best we can. The Commissioners of Public Works rightly feel that they have had hard luck in this matter. They worked hard on that scheme; they did good work, and I, personally, am satisfied, that the engineers in charge of the drainage schemes under the Board of Works are thoroughly competent to do their work. Personally, I can say that I have always found them obliging and helpful; and I believe that if in this case they had been taken in the right way we would never have been troubled about this matter. However, all human beings are not built in the same way and, unfortunately, by reason of certain things which do not appear on the surface here, we have come to debate this very important matter.
The members of Limerick County Council are people of good standing. They have always honoured their commitments, and they have merits on their side—so, of course, have the Commissioners of Public Works. I think that the proper solution of this problem is this: that the time has come to make a final award. It would not be good policy—it would not be, as I say, a practical proposition—from the point of view of the drainage scheme itself, that we should return to these endless controversies that would inevitably arise from another public inquiry. I, myself, think that the members of the Limerick County Council are not adamant on the question of a public inquiry, and that although, no doubt, they may feel that the work is not fully completed, they may be advised that it is better to accept it as it is, but they certainly feel that they got a raw deal from the Government or the Parliamentary Secretary in regard to this matter.
Now, the final award was set aside by Mr. Justice Overend and, in connection with Section 58 of this Bill —but it would appear that that final award is again set up for the amount which was set aside by Mr. Justice Overend. The members of the Limerick County Council are what I might call realists: they are not idealists, like Senator Sweetman, who is concerned with a principle which could be discussed in an objective way. The members of the Limerick County Council are very much subjective in regard to this matter. They are very much concerned with the question of pounds, shillings and pence, which they have to collect from the ratepayers and riparian owners in County Limerick, and their objection is that the Parliamentary Secretary, in effect, asks them to hand him over a blank cheque, that he may fill in the amount they are to pay, and in this case he has filled in the blank cheque to the amount of something over £13,000. They object to paying that amount over for these works. They say that the sub-sections which the Parliamentary Secretary has inserted here are not very accommodating to the Limerick County Council, since the only power given to them is the power to borrow money in order to pay him.
So far as the Limerick County Council are concerned, it is a matter of pounds, shillings and pence, and so far as the Parliamentary Secretary is concerned it is a matter of getting rid of this old scheme, which has been on the hands of the commissioners for a number of years. The Parliamentary Secretary wants to get rid of it for the purpose of winding up the 1925 Act, so as to get this new legislation put through. Why cannot there be a reconciliation between the Parliamentary Secretary and the Limerick County Council? It may be said that the Parliamentary Secretary is not a man who can compromise. I do not agree with that, because we had an example in this case where, on Section 10 of the Bill, he did compromise with the Minister for Agriculture. Whether that compromise was a surrender or not, I cannot say, but the Parliamentary Secretary called it a compromise section, and I see no reason why there should not be another compromise section in this Bill.
The Parliamentary Secretary has drafted this section with a cut-and-dried demand on the Limerick County Council for a sum of over £5,000 beyond that which the county council originally agreed to pay. The Limerick County Council say: "We are not getting value for our money"; and the Parliamentary Secretary says: "You are". In my submission, the Limerick County Council are entitled to get a reduction for cash from the Parliamentary Secretary, for the following reasons: first of all, in the amount of the total award of £36,000 odd, there is included the cost of the first inquiry. Mr. Justice Overend had held that it was not an inquiry for the purpose of the Act and that therefore the draft award was a nullity. Accordingly, the Parliamentary Secretary is not entitled to regard an inquiry, which was not actually an inquiry in that sense, as part of the scheme, and to saddle part of the cost of the inquiry on the Limerick County Council. Secondly, Mr. Justice Overend said:
"It is clear upon the evidence that the works which had been done have resulted in very substantial benefit, though not perhaps commensurate with their ultimate cost."
Now, I am not going into the merits of the case—I am only taking this extract from his judgment—but he held that the works were not commensurate with their ultimate cost, and, therefore, not worth what was spent on them. The money was spent by the Commissioners of Public Works, and the Limerick County Council had no jurisdiction in that matter, and if the commissioners spent more than they should have spent, then I think that the Limerick County Council should not be saddled with that extra expense. Accordingly, I say that there is scope here for a compromise. That is a matter for agreement between the Limerick County Council and the Commissioners of Public Works, supported by the Minister for Finance, and I hold that the contribution of the Limerick County Council should be £1,000, £2,000, £3,500, or whatever it may be, less than what is provided for actually in the Bill. However, that is a matter that we cannot deal with in this House.
Senator Madden made a bold effort to bring about a settlement along those lines. I think that he went a little bit too far, but in this case the Parliamentary Secretary does not require to have his Bill until 31st March, or some time in March, and it appears to me that there is ample time for the Parliamentary Secretary to go back to the other House and obtain the consent of that House to some modification of the financial provisions in this section, and then to come back here with such modification, if it is agreed to. If he were to do that, I think I can assure him that this Bill will go through without a blot on it. It is unfortunate—unfortunate, indeed —that this dispute between the Limerick County Council and the Commissioners of Public Works should have marred a great measure such as this Bill undoubtedly is. This unfortunate controversy has dominated this Bill from the first moment the Parliamentary Secretary introduced his amendment in the other House until the present time. The Parliamentary Secretary would be well advised, for the sake of the success of the Bill, to start off with the good-will and good wishes of every local authority, because the Commissioners of Public Works, as the drainage authority, and the county councils must work together to make this measure a success. It would be unfortunate if this Bill were to get a bad start because of this trifling dispute between Limerick County Council and the Commissioners of Public Works. Blood is thicker than water, and we know that a number of other county councils are in sympathy with Limerick County Council.
Therefore I suggest that the commonsense way of dealing with this situation is to wind up the Limerick scheme on terms satisfactory to Limerick County Council and to the Commissioners of Public Works. I agree that the Minister for Finance has contributed, and is contributing, a large sum to the scheme, and it would be a question of only about £2,000 to settle this matter completely. Limerick County Council would, I think, accept that position and I am sure the other House would also agree.
It is significant that Deputies of all Parties from County Limerick were united in urging the Parliamentary Secretary not to proceed with this section. The residents of County Limerick feel very strongly about it.
Although I am a native of County Limerick, I am not a resident and, therefore, my temperature is lower than that of the representatives of County Limerick. Having considered the matter in as detached a manner as I could, I think that neither side should seek its pound of flesh. If we are to passad hoc legislation—legislation to deal with the case of an individual or a council—we should be most careful to do so only with the consent of the individual or council concerned. It would be the worst form of tyranny—tyranny in the name of democracy—that a Parliamentary majority should be used to impose an obligation upon an individual or upon one council. It would be the end of parliamentary government if that were to become a practice. Such legislation should never be invoked except for the benefit, or with the consent, of the individual or body. Everybody who has knowledge of the strength of the Executive as against the individual realises that the Executive has the advantage every time. The Executive found that the Gárda Síochána Compensation Act, 1941, did not carry out its intentions and to-day we had an amending Bill before us. If it should so happen that the individual failed to get what he expected out of the 1941 Act and if he succeeded in getting a Private Members' Bill introduced, it would be soon defeated if it were not acceptable to the Government. Therefore, where the Government has a Parliamentary majority, it has a great responsibility to the individual and it should use its power only for the public good and not to impose a penalty or liability upon an individual. In this case, it appears to me that the Commissioners of Public Works, having considered the judgment of Mr. Justice Overend, said to themselves in so many words: “We shall mark ‘paid’ to the account of Limerick County Council. We shall introduce this section and carry it through the Oireachtas and let those people see that they cannot trifle with a mighty Government Department.”
Whether retrospective legislation is good or bad is not in question here. Retrospective legislation may be good. The retrospective legislation contained in the Gárda Síochána Compensation (Amendment) Bill which this House passed to-day is good. Legislation is not good or bad because it is retrospective. So,ad hoc legislation may be either good or bad. It is good when it is for the benefit of the individual or council or with their consent, but it is thoroughly bad when it is introduced and passed by a Parliamentary majority in the teeth of the opposition of the parties concerned and in disregard of their rights under existing law. While Senator Sweetman has brought forward this amendment, to provoke discussion on this subject, I think that the better solution would be that which I have mentioned. If carried, Senator Sweetman's amendment would bring back the old trouble. I do not know whether the amendment would be effective or not, because the passing of a resolution by Limerick County Council does not appear to be a reserved function under the County Management Act, 1940. This amendment might require some revision to make that clear. After the heat and burden of the day, the Parliamentary Secretary and Limerick County Council should realise that there is an easy way out. The easy way out is for the Parliamentary Secretary to concede that he cannot get his full demand and for Limerick County Council to agree to accept less than they claim to be their rights.
I suggest that the amendment which has been proposed by Senator Sweetman would not get the parties anywhere and that the Parliamentary Secretary should at all events promise the House that he will consider this matter in conjunction with the Minister for Finance for the purpose of seeking an agreed solution. If, however, the Parliamentary Secretary should take what we shall call an intransigeant attitude, then I am sorry for him, I am sorry for the Limerick County Council, I am sorry for the Oireachtas with its Parliamentary majority which would impose such an injustice upon a county like Limerick, always ready to honour its commitments provided it gets fair play, and I am sorry for the country as a whole.