I should like to thank the House for the very constructive manner in which the Bill has been received on all sides. From what I have heard, I look forward to most constructive amendments being put down. I feel that I will get them from all sides of the House. I invited them in the Dáil and I was disappointed with the number of amendments that were put down. However, I look forward to something else in this House from the very interesting contributions I have heard.
The first speaker from the opposite benches, my friend Senator O'Sullivan, tried to introduce a political note into the discussion when he said that he was glad to see Senators supporting the Government now in favour of the county management system. It is but right to remind him that the Opposition are the converts. I do not wish to go into a political argument, but it is just as well to have the facts. Away back in 1929 the old Cumann na nGaedheal Government decided to introduce a City Management Act for Cork City. If my recollection of reading the debates serves me right, it was bitterly opposed by the present Opposition. Again, a year or so later a further Bill was introduced, a Bill to appoint a city manager for the City of Dublin and, again, that Bill was opposed by the present Opposition. But as Senator Kissane, I think, pointed out, after eight years Fianna Fáil saw the wisdom of the action of the old Cumann na nGaedheal Government and they introduced the County Management Act in or about the year 1939 at the outbreak of the war; when they saw executive functions of local authorities mounting up; when they saw that local authorities could no longer deal with these executive functions which were then mounting up and would continue to mount as a result of the outbreak of war.
That Act was not perfect and, when the inter-Party Government took office in 1948, the first thing they did was to instruct their then Minister for Local Government, the late lamented Tim Murphy, to prepare an amending Bill. It was never suggested that that amending Bill should repeal the County Management Act, merely that it should amend it. Unfortunately, before the then Minister had time to put the Bill through, he died; his successor, Deputy Keyes, proceeded with the Bill but, before it reached this House, he went out of office. The present Opposition came into power and the first thing Deputy Smith did as Minister for Local Government was to introduce an amending Bill.
Now I have been very fortunate. I have had an opportunity of studying the working of the County Management Act since 1940 in my capacity as a lawyer, and more particularly still in my capacity as a lawyer to a local authority. I have also had the privilege of reading the Bill introduced by the inter-Party Minister for Local Government, Deputy Keyes. I have had an opportunity of reading the debates on that Bill. I have had an opportunity of reading the Bill introduced by the present Deputy Smith; and I have had the opportunity of reading the debates on that. But I was not satisfied and I set out to consult local authorities, the people who were actually working the County Management Act, all over the country to find out what they wanted.
I visited every local authority in the country and one of the first things that struck me was that the improvement in the management system was not so much a question of adding to reserved functions; what they wanted was more reserved functions and less executive functions. They never sought the abolition of county management, with one solitary exception which I shall not mention. I thereupon incorporated the request of the majority of the local authorities in the present Bill and when I came before the Dáil I invited, on the Committee Stage, amendments from both sides of the House. I accepted a number of amendments. The only amendments I refused to accept were amendments from the present Opposition, which I found Deputy Smith incorporated in his Bill, but which they now wished to propose for the purpose of obstruction. Those were the only amendments I refused and I will welcome any suggestions Senators may wish to make on this Bill.
A considerable amount of play has been made on Section 16 of the Bill. It has been said that Section 16 will nullify the powers given under Section 4. I think it is but right that I should now reiterate what I said when introducing the Second Reading of the Bill here. First of all, let me point out that the law governing surcharge is laid down in Section 61 of the Local Government Act, 1925. This is the law at the moment governing surcharge. The Section sets out that certain officers of local authorities must warn local authorities of the result of their actions provided their actions are unlawful actions. Unfortunately it goes further than that; it says who the person is who must warn the local authority and it describes him as the "responsible officer of a local authority" and the responsible officer is defined in the Act as meaning "the secretary, clerk. resident medical superintendent or other chief executive officer of such local authority".
That was a first-class definition and an excellent definition in the days of the old local government system; but when the county management system was introduced that section should have been amended to include county managers. That is what I am doing under Section 16—that and nothing else. I am merely bringing the law up to date and in line with the county management system. I have added Section 16 which sets out:—
"(1) Where a proposal is made at a meeting of a local authority to do or effect any act, matter or thing—
(a) which constitutes a reserved function or is mentioned in a resolution under Section 4 of this Act——"
——a reserved function, not an executive function——
"(b) in consequence of which an illegal payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in or to such funds."
Let me give the House an example. Suppose a local authority decides that they will accept a tender for houses which is not the lowest tender; suppose they accept a tender which is £100 per house higher than the lowest tender—that is quite a lawful act. They are entitled to accept if they have made provision. But sub-section (b) says: "in consequence of which an illegal payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in or to the funds." There is an onus there cast upon the prescribed or responsible officer as defined under the Local Government Act of 1925; but, in order to bring local government legislation up to date, we must now include the manager,
"(or, in his absence, such other officer as may be designated by the manager) and he shall object and state the grounds of the objection, and, if a decision is taken on the proposal, the names of the members present and voting for and against the decision and abstaining from voting on the decision shall be recorded in the minutes of the meeting."
That is the wording of the old section of the 1925 Act. I am merely bringing the law up to date and it does not contradict in any way the powers given under Section 4.
It is necessary that I should stress that the question of warning does not arise where the local authority are proposing lawful expenditure outside the provision made in the estimates, such as the repair of a road which was not included in the road works scheme. I think someone mentioned that particular point. Once the request is made by the members and the work can lawfully be carried out and the council authorises the expenditure, the manager must carry out the work. Once it is a lawful act he must do it and, so long as the money is provided, it is not illegal.
Most of the arguments advanced here are arguments which could more advantageously be made on the Committee Stage. I have taken a note of them. If I can meet them in any way by ministerial amendment I shall be glad to do so. On the other hand, I would like to see Senators themselves putting down amendments.
I want to emphasise one point with regard to the employment of temporary employees of a local authority. It has been suggested that the council should have some say in the appointment of temporary employees. Supposing some slates came off the council chamber, would it not be ridiculous to suggest that a meeting of the council should be held for the purpose of appointing John Brown to put three slates on the council chamber? Supposing, on the other hand, that a doctor drops dead or is taken seriously ill, a locum must be appointed. I understand that locums are appointed at the rate of two or three per month in local authority areas. Would it not be a drastic state of affairs if we had to leave a dispensary denuded of a medical officer while the council were coming together and arguing and deciding as to who should be the locum tenens appointed to fill the vacancy?