On section 1, the Minister will be aware that during the course of the passage of this Bill through the Dáil there was a definition of the word "plant" included in subsection (2) of section 1. This has some relevance to the amendment which I put down later. The Minister might at this stage explain why it was necessary to include that definition and why that definition was chosen rather than the category which is subsequently used elsewhere in the Bill.
Valuation Bill, 1985: Committee and Final Stages.
SECTION 1.
Question proposed: "That Section 1 stand part of the Bill."
What the Senator is referring to is the substance of his amendment which we come to on section 8. He has included an amendment which basically includes the point he has just made now.
If the Minister of State prefers to postpone it until we consider the amendment, I would be quite happy to do that.
I can deal with it now, if the Senator prefers. It is basically the same issue.
It might be better to deal it on section 8.
Question put and agreed to.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
On section 2, there is no doubting the changes that have taken place from the period 1852 and 1860 to the present in terms of plant and industrial base. This is a section which will impose new rates. Is the Minister in a position to tell the House whether or not any estimate has been made of the growth in yield from rates which will accrue to the Exchequer by virtue of these extensions?
Could the Senator repeat the question?
Have you any idea of the growth in yield which will accrue in rates arising from these amendments?
As I explained yesterday, there is no intention, nor is it anywhere in the Bill, to extend the valuation base. It is merely to clarify and to ensure that the existing situation is maintained for local authorities. There have been difficulties in courts in recent cases. I have no details, therefore, of any growth in yield in relation to the matter.
Arising from court decisions which were taken where ratepayers appealed against the valuation being placed on their entire premises and where the court upheld those appeals, which had the effect of reducing the valuation base, surely the Minister's Department would have taken into account that in closing those loopholes, as we loosely would interpret the intent of the Bill some valuation has been placed on the value in money terms. Otherwise, it seems to be a rather wasteful exercise.
Without going individually through the different court cases concerned and itemising what exactly might otherwise have been, I could not give the Senator a figure now. However, the basic issue here, as you are probably well aware, has arisen because of the ambiguity in the definition between the words "plant" and "machinery". Some firms in certain local authorities have had their cases upheld in the courts. As such, the local authorities involved have lost considerable amounts of revenue. No additional revenue will accrue to local authorities as a result of this Bill except in the sense that the situation will be clarified now and that perhaps there will be less successful petitioning through the courts on behalf of firms. The actual basis for the valuation will be clarified. If you like, we are back to the status quo. I do not have detailed figures as to the difference, as of now, before this Bill was introduced.
Question put and agreed to.
SECTION 3.
Amendments Nos. 1 and 3 are similar and may be discussed together.
I move amendment No. 1:
In page 3, subsection (4), line 11, to add to the subsection: "Such order shall not remain in force for a period exceeding twelve months."
This is an amendment to section 3 of the Bill and amendment No. 3 is an amendment to section 8 of the Bill. Section 3 of the Bill amends section 48 of the Valuation (Ireland) Act, 1852, and provides for the insertion of a Schedule after the section of the 1852 Act for the purpose of giving greater clarity as to categories of fixed property. Section 8 of the Bill amends section 15 of the Annual Revision of Rateable Property (Ireland) Amendment Act of 1860 by providing for a like Schedule to be inserted after the section of the 1960 Act for the purpose of giving a greater certainty as to the definition of categories of fixed plant.
I am concerned with regard to both sections not with the effect of the charging subsections—subsection (1) in each case—which has the effect of extending the scope and giving greater clarity to the original sections which are thereby amended but rather to the effect of subsections (2), (3) and (4) of sections 3 and 8 of the Bill. What these sections in effect do is give the Minister, or any successor of the Minister, power to amend and further extend these Schedules by order. Subsection (2) of both sections of the Bill provides that the Minister may by order amend the Schedule to the Act inserted by this Bill and may by such an order add to that Schedule a category of fixed property or, in the case of section 8, a category of plant specified in the order, or vary the description of any such category; and subsection (3) in each case provides that the Minister may by order amend or revoke an order under this section.
There is, of course, provision for the laying before the Houses of the Oireachtas in the usual form of these orders, Indeed, it gives the Houses the option and the opportunity of discussing these orders. However, we must ask ourselves is this a satisfactory way of dealing with the whole basis of our valuation system. I do not think it is. The Valuation Acts provide the basis for the rating system and that is the basis for a very particular and definite form of local taxation. This is a tax assessed annually and the end result of what is levied is based on the rate struck by a particular local authority. That rate relates to a fixed base which is the valuation existing in relation to a particular property. It introduces a further level of uncertainty if there is another factor that is a variable factor and a factor that can be changed by ministerial order rather than by an Act of the Oireachtas. When we are talking about the valuation system and the Valuation Acts and rates and property we are talking about a particular type of property tax which should be on a sound basis of legislation and not on the basis of a ministerial order.
I am extremely unhappy about that. It is for that reason that Senator O'Leary and I move that the amendments to each of the sections be accepted, that is, that such order shall not remain in force for a period exceeding 12 months. If that were to be acceptable to the Minister it would give the Government the opportunity to incorporate the contents of such order in, for instance, the next Finance Bill or in some other suitable legislation. This would at least give the Members of both Houses the opportunity of discussing in a realistic, rational and open way what in fact is being done in relation to a very important source of taxation.
The Minister reiterated here this morning what she said in her speech yesterday and I will quote from that speech:
I want to assure the Seanad that the Bill does not represent any change in valuation or rating policy. It does not seek to extend the type of properties to be valued and rated and it does not change current practice with regard to the method of valuation. On the contrary, it will merely help to preserve.
—and the words "to preserve" were underlined in the Minister's speech yesterday—
the traditional valuation base and remove doubts about the interpretation of some existing provisions.
In saying that yesterday the Minister was simply following through what was started in the explanatory memorandum of March of last year, where it was therein stated that:
The purpose of the Bill is not to extend the type of property to be valued and rated but rather to preserve the traditional valuation base.
On the face of the Bill one can accept that. But the Bill gives the potential to depart radically from that and to depart in a way that does not give the Members of the Seanad or the Members of the Dáil the opportunity of considering such potential change, because if such a change is to be produced it may be introduced by ministerial order. That is not a satisfactory way of expanding the Schedules to the two particular sections.
In support of the argument I put forward, it is the view of the sub-committee dealing with statutory instruments of the Joint Committee on Legislation that the Houses of the Oireachtas should not legislate in that way. It is also the view of the Joint Committee on Secondary Legislation of the European Community that, in so far as European Community legislation is concerned and where it is legislation implemented by ministerial order, it is a matter of importance that it should then be incorporated in the next succeeding suitable piece of legislation. In this regard, so far as the European Community's legislation is concerned, I will quote from the 22nd report of the Joint Committee appointed on 26 July 1973:
The Joint Committee accepts that Ministerial Regulations made under section 3 of the European Communities Act, 1972, may lawfully amend Acts of the Oireachtas or other Statutes in force if such is required by the Community secondary legislation, which the Regulations are to implement. However, the fact that the power exists ought not, in the Joint Committee's opinion, to mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be affected by a Statutory Instrument or amending statute.
The valuation code is of such importance as a taxation code that it is highly inappropriate that changes in the base of the valuation system can be effected by ministerial order. It is not a change that can ever be urgent. It is not a change that can ever be required instantly. It is always a change that has to wait the passage of time by virtue of the rating system. For that reason, if it has to be implemented initially by way of ministerial order—and I fail to understand why the amendment of these Schedules would have to be amended urgently—then the least one can expect is that the amendments thereby introduced will be incorporated properly into ordinary legislation at the earliest opportunity. It is for that reason that I move these amendments giving the lifespan of these orders a maximum period of 12 months and, in effect, seeking from the Minister for Finance of the day the assurance that such will be incorporated in the next suitable legislation to be enacted.
I would like to second the amendments which have been moved by Senator Durcan which were down in both our names. For precisely the same reasons as Senator Durcan elucidated, it is important that the Seanad should look at this subsection of the section which we are proposing to amend within the context of it not falling within the general intention of the Bill as outlined by the Minister in the Second Stage speech. It is more than just the preservation of the status quo, more than just the changing and reverting to the position which was thought to obtain prior to the recent Circuit, High and Supreme Court decisions which necessitated this amending legislation. As Senator Durcan pointed out, the power being sought by the Minister goes far beyond that. The power which the Minister has is to redefine the categories of fixed property.
The categories of fixed property outlined in the Schedule contained within section 3 of this Bill are limited to five. There is absolutely no reason why the Minister could not introduce a sixth category if granted the power under this section and the power under section 8. I mentioned in my Second Stage speech yesterday that among the things that traditionally have not been rated are agricultural buildings. While land is valued, agricultural buildings have not been valued. It would be open to the Minister without reference to either House of Oireachtas to introduce agricultural buildings as one of the categories of fixed property to be taxed in future. For the Minister to do that without reference to the Dáil and Seanad is, in my opinion, wholly inappropriate. This would represent a major shift in Government policy and a major shift in the policy of successive Governments. I am not suggesting that the present Minister has that intention. I am looking beyond the present Minister. I am looking to the situation which might develop in years to come where maybe the agricultural lobby would not be as strong as it is now. No matter how strong or how weak it is, if a major change is being made in the valuation base, it is entitled to the consideration of both Houses of the Oireachtas. The amendments which have been put down by Senator Durcan and myself fall within the category of amendments that enable the Minister to take such emergency action as may be required from time to time with valuation lists being prepared on a time-scale basis. It enables the Minister to take those actions, but at the same time insists that if there is any change in the definition of what is to be included in the valuation list, the Minister would have to revert to both Houses of the Oireachtas.
This looks a very innocent section but as I explained to you it is not an innocent section at all. It is really saying that in this form of taxation the ground rules can be changed by the Minister — this Minister or future Ministers — without reference to the Houses of the Oireachtas. For example, if we take the situation with regard to VAT or PAYE and so on, if there was a proposal in the next Finance Bill that we should allow the Minister to vary the categories of VAT by ministerial order without reference to either House of the Oireachtas, it would be treated as a most extraordinary request. Suppose we decided that the Minister could change the standard rate of income tax from 35 to 30 or 60 to 50 without any reference to the Houses of the Oireachtas, it would also be considered a most extraordinary power. That is precisely what we are proposing to give the Minister here. We are proposing to give the Minister the authority to make any order under this section that, read in conjunction with section 2 that a Minister may revoke or amend the schedule of the Act or may, by such order, add to the schedule a category of fixed property specified in the order or vary the description of any such category. The Minister will have the opportunity of saying if it is possible to add agricultural buildings to that list. The answer, of course, is "yes, it is possible if we give the Minister that power". I would ask that the Minister would accept the sentiments and the amendments and make the necessary changes in the legislation.
I want to clarify my mind, because we have had two legal contributions from people whose views I respect very much indeed. On this Second Stage of this Bill, Senator Fitzsimons made the comment that it is difficult to amend old legislation like this, adding in a section without doing the job properly by preparing a new Bill. I went down that road with him because I felt it was a fair comment, but I also made the point that because of the time factor involved in preserving the valuation base for the incomes of local authorities in 1987, obviously time did not permit of this. When the original Bill of 1800 was written there was no doubt in anybody's mind what was plant or machinery but because of the technological advances that have taken place in the meantime it was important for the Minister to write in categories of fixed property and define them.
If I am to accept Senator O'Leary's arguments — and I want to follow them through further — and if we accept that everything the Senator says is the perfect legislation — and as a legislator I would accept that that is the right way to go — why does he defeat the whole purpose of his amendment by allowing the Minister to have the power over the next 12 months? Either we have the section or we do not have the section. Why give any Minister the power for 12 months? Is it because we are worried about who might be the Minister after 12 months and not about this Minister? We have the argument that either the Minister should have this power by ministerial order to bring in or add or take from this particular specified category, or he should not. The time factor should have nothing to do with it. I understand the reasons why the categories are specified, because they had not been specified heretofore. That left doubts in the minds of people. It left it open to people to take local authorities to court and to question the validity of a rating valuation. I am only a layman and I want to make sure that we are legislating correctly. Could Senator O'Leary advise me why he has put a time factor on it, if he disagrees totally with the principle?
I want to respond to something Senator Ferris said. What I am talking about is not so much the valuation system. We are talking about parliamentary democracy. Are we going to have a system in this country whereby Parliament can debate legislation, or are we going to have the type of system that they have in Northern Ireland at the moment where an assembly debates orders made in council by another group of people? That is what we are talking about. It relates very much to the valuation system. It is relevant to the valuation system but I put down the amendments on a point of principle. The principle relates to parliamentary democracy. Will Parliament have the opportunity to debate legislation in a proper fashion, or will Parliament merely be put into the subordinate role of debating orders made by a Minister? That is the issue that is at stake.
The rationale behind the provisions in the Bill to make orders is that the schedules of sections 3 and 8 are not exhaustive lists of property which are to be expressly liable to valuation. They are, to the best knowledge of the Commissioners of Valuation, lists of items whose liability for valuation were not expressly covered by the valuation law up to now and those whose liability for valuation has been put in doubt by certain court decisions. As I say, these are not exhaustive lists. There may be good reasons to add to these lists from time to time. During the Second Stage debate yesterday we heard mention of the rate of technological change in this century which has made many provisions of valuation law cumbersome and difficult to apply. It is more than 120 years since it was first enacted. It is to guard against this Bill becoming outdated in the future that the provisions to make orders is in the Bill. In this way, newly-invented items of plant and fixed property which, of course, cannot be described in advance can be valued and noted simply by making orders to add these items to the appropriate schedule. The provisions in the Bill with regard to the making of orders are, as one Senator remarked yesterday, very democratic. They provide for the passing of an affirmative resolution of each House of the Oireachtas. I repeat that: they provide for the passing of an affirmative resolution of each House of the Oireachtas. In other words, the making of the order will be contingent upon the approval of both Houses.
The fears expressed by Senators O'Leary and Durcan are totally unfounded. In fact, I am amazed that both these learned gentlemen appear not to know the meaning of the words "an affirmative order". This procedure will provide ample opportunity for discussing the pros and cons of the order in question and is democracy in action, I put it to the Senators. Any order made under this legislation would, of course, be subject to the other provisions of the Bill. For instance, it would not be possible to make an order to add machinery to the schedule of categories of plant in section 8 because the valuation of machinery is expressly excluded by section 7.
I cannot agree with Senators Durcan and O'Leary that their proposed amendments would improve the Bill. To have orders made which would be effective for only one year would leave the status of the items in question in a terrible state of uncertainty. The fears expressed by the Senator that the ground rules could be changed at the whim of any Minister, without proper parliamentary debate both here and in the Dáil, are totally unfounded. I reiterate it is an affirmative resolution. In fact, orders will be fully discussed in both Houses and the order must be passed by both Houses. Legislation by order — delegated legislation as it is called — is a common practice both in Britain and in this country for the greater part of this century. It is a more flexible method for dealing with details and with changing circumstances. What is important is to have the proper safeguards in the order and they must be in keeping with the terms of the parent Act.
There must be proper parliamentary control. The procedure being followed in this case, the affirmative order ensures this.
It is very early for the Minister to be displaying signs of ministerial arrogance. Apparently, it is a disease which takes hold very quickly. I cannot speak for Senator Durcan, but I think I would be doing him less than justice if I said both myself and himself know that there are affirmative subsections relating both to sections 4 and 8 of the Bill. From being four or nearly five years a Member of this House I also know that affirmative resolutions of that kind are not treated with the seriousness by the Houses of the Oireachtas which I think is proper. It is grand for the Minister to say they should be. The timetable for the consideration of these matters is decided by the Government. If the Government do not give us the time, we cannot take it. If the Government treat us in the same cavalier fashion as they are seeking to treat this House with regard to the Valuation Bill which has been held up in the other House for 12 months and then expect us to jump like monkeys through a hoop within 24 hours in respect of legislation, in respect of an Act of the Oireachtas, what courtesy and consideration can we expect in respect of an affirmative resolution? My experience is that we can expect none. These things are so arranged by the Government of the day that it is merely a matter of being nodded through.
I am not happy and I have expressed this view on other Bills — that a policy of making ministerial orders changing the law in fundamental ways is properly controlled and that the overseeing of that by Parliament is properly done by merely arranging that a draft of the order should be considered by the Houses of the Oireachtas. The more of these provisions made in a succession of Bills that come before this House, the more insignificant will be the consideration which is given to it in each House of the Oireachtas. It is a conspiracy by those who wish to diminish the responsibility and authority of this House of the Oireachtas and the other House and to make it subject to the direct whim of the Government of the day ostensibly, but really, of course, to those who on a day-to-day basis are advising the Government as to what should be done in these technical matters. As far as I am concerned, the Minister fails to deal with that matter.
I am not happy with a resolution of the type proposed by section 4, which I can assure the Minister I knew existed because I read the Bill. I read the Bill when it was first published. I am not happy with this. I would hope the Minister would recognise that unhappiness by making the amendment.
I would support the comments made by Senator O'Leary except in so far as he refers to the Minister's arrogance. Ministerial arrogance is a disease, perhaps, which Ministers may catch, but I do not think this Minister has caught the disease yet. But, perhaps, when she returns to the House on Report Stage, which I hope will not be taken today, we will have the opportunity of learning something about the speed with which one catches or avoids that particular disease.
What I am concerned about is the principle underlying the whole question of legislating by ministerial order. I have already put on the record of this House this morning portion of Report No. 23 of the Joint Committee on Secondary legislation of the European Communities dealing with the implementation of the European Community legislation by ministerial order. As far back as 1973 it was the view of the members of that committee that it was an unsatisfactory way of legislating in important matters.
As recently as a few weeks ago in this House we considered a further report of the present Committee of the Joint Committee on Secondary Legislation of the European Communities dealing with 11 statutory instruments. In that report the same sentiment is embodied. I would ask the Minister to bear in mind the views of that Joint Committee and its predecessor. I would also ask the Minister to bear in mind the views of the present subcommittee of the Joint Committee on Secondary Legislation chaired by Deputy Calleary which at present considers statutory instruments, the successor to the old Seanad subcommittee on statutory instruments, of which I am a member — that this is an unsatisfactory way of legislating.
Senator O'Leary made a very valid point in relation to that or, indeed, in relation to any other form of tax. If the Minister in his Finance Bill were to say that such could be dealt with by order — it may be an affirmative order or otherwise, but it is the whole principle underlying how we legislate. Are we to end legislating by way of considering orders? I do not think this is a satisfactory way of legislating.
If we proceed on that basis it ensures that the public are not made as aware of what is happening in these Houses as otherwise would be the case. In relation to this Bill, before the original Bill was published there were submissions made to the Minister's Department, that the Department were worried by the response of certain sectors of the committee. There was pressure put on by the CII and this has made the Minister's Department quite determined that they should not be subjected to that type of pressure in the future and that any further amendments to Schedules should be done by order and in a manner with as little publicity as possible. For that reason I am extremely unhappy with that provision. It is purely on the principle of how we legislate that worries me. I would ask that that principle be considered between now and Report Stage.
I think both Senators who have just spoken have made eloquent cases for Dáil reform and reform of parliamentary procedure generally. I honestly feel that their fears are still ungrounded in that, if the Seanad or indeed the Dáil were not to give ample time or due time to the discussion of an order that needed positive affirmation in either House, that is a matter for the Whips and the Ordering of Business. The safeguard is that the order cannot be approved unless it is put positively to both Houses. If the business is not ordered and if time is not given for discussion on the matter, the order cannot be proceeded with. There is no fear in the matter. The Senator's fears are based on objections to this type of procedure in legislation rather than the intrinsic issue in this Bill. Perhaps, that would need further and more ample debate on another occasion. As regards this Bill and the specifics, I cannot accept the amendments made even though I understand the basis for the fears expressed.
The Minister will have noted the references by Senator Durcan to the European Communities Act, 1972. I am not sure of the date. It is the one which enables the Minister to make whatever orders were necessary in order to bring our domestic legislation into conformity with the EC. During the course of consideration of a report of the Joint Committee recently on the nine statutory instruments to which Senator Durcan referred, I had occasion to look at that Act. The original position was that any orders made by the Minister which were necessary in order to bring the domestic legislation into conformity with our obligations under EC membership had to be incorporated in an Act of the Oireachtas within a period of time. A number of years later that was changed to this concept of just affirmative resolutions of one kind or another. It is this reduction of the democratic control to which I object. I cannot expect this Minister to accept the sole responsibility in respect of that trend, and I do not. But really, the only Bill we are considering today is this Bill. We can only consider things one at a time. There is no opportunity for us in this House to consider the legislation, the principles of parliamentary draftsmanship. The only opportunity that we have to look at the principles of parliamentary draftsmanship is section by section, item by item, subsection by subsection and Bill by Bill. In these circumstances the Minister would be well advised to reconsider the matter and to set a trend with regard to the re-establishment of greater parliamentary scrutiny over legislation.
Members of this House know that the consideration which it is possible to give to an order which is made by the Minister and which requires the affirmative resolution of this House, and the consideration which is actually given to a green or yellow piece of paper which is produced for us are different. A greater degree of control exists where a Bill is put before the House. For that reason it is important, first of all, to recognise the reality of the situation and the reality of the situation is that our parliamentary democracy has got to such a stage that subsection 4 of section 3, which is the provision for the affirmitive resolution, is not a useful parliamentary control at present. Maybe in an ideal world it would be but it is not a useful parliamentary control. I do not see any possibility of it so becoming in the immediate future.
As an example, the House will recall the recent debate we had on the Nine Statutory Instruments. The committee said they were, tempted to report unfavourably to the Houses of the Oireachtas on the Nine Statutory Instruments and thereby fulfil one of the functions of their operation. They did not do so even though they clearly stated that they were in fundamental disagreement with some of the orders which they had considered. The practicality on the ground of doing it, the practicality of disagreeing with a ministerial order which may not actually come by your consideration until the last minute must be recognised. What formula is used by the Minister to achieve the objective which we have set out in our amendment is irrelevant. I would ask the Minister to consider introducing some amendment on Report Stage which would have this effect.
I note the request of Senator O'Leary but I must reiterate that most of the points he makes I feel would have a better place in a debate on parliamentary structural reform generally. The matter of giving due consideration to any item, whether it is a Bill at any stage or a ministerial order, is a matter to be discussed among the Whips in both Houses of the Oireachtas and for the matter to be attended to properly. I should like to reiterate that the ground rules of this Bill could not be changed at all by what is intended in this ministerial order.
Senator O'Leary in his first contribution spoke, for example about valuation of agricultural buildings being introduced without reference to the Dáil or Seanad. They were his own words. I have already explained how the mechanism of approving and of affirming an order would work. In fact, that matter would have to come before both Houses and be positively approved by the Members. At that point in time the matter can be discussed and debated and objected to, if necessary. Therefore there is no question of anything being done either in this Bill or in any other case where a ministerial order is involved without reference to the Dáil and Seanad when we are talking about affirmative resolution of the matter. That is most important and the democracy involved must be underlined. It was a point that was recognised yesterday on Second Stage debate by one of the other contributors here from the Seanad.
Is the amendment withdrawn?
I should not like the Minister to feel that there will not be a similar amendment on Report Stage but I would ask the Minister to consider the matter in a very firm way between now and Report Stage.
The Leader of the House said earlier today on the Order of Business that he was anxious to get all Stages of the Bill today.
This reminds me of the saying, "Our Lord, make me pure but not today". Either we are going to remove the Minister's right to make an order or we are not. Let us all get it into our minds what we are talking about. We have no intention of putting 12 months as the period in which any Minister and his advisers and the Department would have to make all the technological changes, advances, predictions and everything else that are ever going to happen again in the area of a valuation base. The only purpose of the clarification of these categories is that they are the ones that are known to us now which have been in doubt. It is impossible within a period of 12 months for us to predict what might or might not be added and if they are not added within 12 months, then they are gone. If we put in 12 months, it means we have to get all the things together and get all the affirmative orders in this House and in the Dáil before us. Otherwise, we are not legislating properly. I would go down the road with Senators O'Leary and Durcan that from a legislative point of view the fewer ministerial orders that are made the better. Let us address that problem on Report Stage or on other Stages of this Bill. But let us not be fiddling around with times. Nobody should legislate that a Minister can have only 12 months to do anything. A week is a long time in politics.
A day.
A day, exactly, and maybe an hour on this piece of legislation. So let us get our minds together. Either we are withdrawing the Minister's power to make an order or we are not. I just want to be clear in my mind what we are doing.
We had considered the amendment and I thought you were asking was the amendment being withdrawn. I want to make my position quite clear. I am certainly withdrawing the amendment but I trust that the Minister has taken on board the points that have been made on Committee Stage, and that he will consider a further amendment on Report Stage along similar lines.
Amendment by leave, withdrawn.
Question proposed: "That Section 3 stand part of the Bill."
Would the Minister be able to tell me because I have been unable to find it—but that does not necessarily mean it is not there because it is such a jungle—in what piece of legislation is the word "plant" used previously? Section 3 of the Bill includes a category of fixed property as being rateable. They are deemed to be rateable hereditaments for the purpose of the Act and that includes the Schedule. Number 5 includes plant falling withing the category of plant. I am not talking about the definition which we will talk about when we come to my other amendment. In what other section of the 1852 Act, the 1860 Act or any amendment thereto is the word "plant" previously used? Would the Minister bring that to my attention? I know that the Minister has to get advice on it.
I am advised that it has never been used in legislation before. It is referred to here in Schedule No. 5, which, in fact, is a cross reference to the Schedule in section 8.
I understand that. One of the strange things about this is that if you look at section 12, which is the one we are proposing to amend by the insertion of sections 2 and 3 which effectively is an addition to section 12 of the 1852 Act, nowhere does it refer to plant. When the Minister comes in and says that there was a court decision saying that certain types of plant were not rateable, it has always struck me that section 12 just does not cover plant. I just want to confirm that the Minister has confirmed that that is the position. Under what section of section 12 was plant ever valued? The Minister might like to take some advice on that. I appreciate what has happened is that the courts held that certain plant is not included. Would the Minister like to tell us under what heading it could possibly be argued that it was ever included? I do not know. I do not expect the Minister to know off the top of her head either.
I have been advised that, following court rulings, items in factories which are not machinery are liable to valuation and these are the items that are being referred to as plant. This is the definition that is being used. Does that satisfy the Senator's question?
Yes. I understand what the Minister is saying. What she is saying is that really there does not appear to be any statutory base for plant ever having been valued but a series of judicial decisions had brought it within the category of the definition of section 12. It is beyond my understanding how it was so done, because I could not interpret section 12 in that way. But that is what happened. As a further series of decisions, a certain sub-category of that plant which had already been admitted was excluded. This is what we are seeking to redress here now in this Schedule. Is that correct?
Yes. Subsequent confusion in relation to what was plant and what was machinery and the definition got blurred. That is what we are trying to redress.
Question put and agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill".
Section 7, as the Minister has said, is the kernel of the Bill in some ways. It is seeking to change section 7 of the 1860 Act. Section 7 of the 1860 Act, which I should like to bring to the attention of the House, says:
In making the valuation of any mill or manufactory, or building erected or used for any such purpose, the Commissioner of Valuation shall in each case value the water or other motive power thereof, but shall not take into account the value of any machinery therein, save only such as shall be erected and used for the production of motive power.
In respect of the first section of the new section 7, would the Minister like to confirm that, save in so far as there is a change by a specific reference to electrical power connections, there does not seem to be much change in that section, but that the kernel of the change is in subsection (2), which states:
The Commissioner of Valuation shall value plant falling within any of the categories of plant specified in the Schedule to the Act...
Is that, in fact, the new statutory basis for the valuation of plant in the future which was missing from the original Act? If it is, I support it.
Yes, that is correct.
The first part of it makes no substantial change except in so far as it includes electrical power?
That is correct.
Question put and agreed to.
SECTION 8.
I move amendment No. 2:
In page 4, subsection (1), in the Schedule, to delete all words in column (2) opposite reference number 1 and substitute the following:
"Any fixture or structure so attached or secured to, or integrated with, premises comprising any mill or manufactory, or building erected or used for any such purpose, as to be of a permanent or semi-permanent nature and any fixture or structure associated with such premises that, although free-standing, is of such size, weight and construction as to be of a permanent or semi-permanent nature, including any such constructions which are designed or used primarily for storage or containment (whether or not the purpose of such containment is to allow a natural or a chemical process to take place), but excluding any such constructions which are designed or used primarily to induce a process of change in the substance contained or transmitted."
That is a very long, complicated way of asking the Minister a question. If you look at section 8, which we are now considering, you will see that that sets out categories of plant to be actually rated. Those categories of plant are divided into three sections, reference 1, 2 and 3, but ignoring for the moment references 2 and 3. It seeks to define the categories of plant which are going to be rateable.
The Minister might like to explain why that is a different definition. If it is a different definition than it appears to me that the purpose may be that the definition of plant in subsection (1) is a wider definition than the definition in section 8. If my amendment is passed, all items of plant, with the exception of the specific exclusions contained in my amendment, would now fall within the category of plant to be valued. That is if my interpretation of the amendment and the present proposal is correct. Would the Minister like to identify the difference between her definition and my definition? What examples of plant will be excluded by her definition that would be included by mine? I seek to get that information so that I can clarify in my own mind as to what is the objective we are seeking to attain. That is the purpose of my amendment.
Senator O'Leary's proposed amendment to Schedule No. 1 of section 8 would involve the deletion of the first three and a half lines of the paragraph and its substitution with the definition of plant in section 1, to which he has referred. I cannot accept this amendment. Schedule No. 1, as it stands, was drawn up in conjunction with the parliamentary draftsman over many months. The purpose of this item of the Schedule is to make absolutely clear the liability for valuation of specific categories of plant which had been put in doubt by certain court decisions. The deletion of the first part of this paragraph could well negative this purpose and put the items back into a state of uncertainty as to their valuation. The definition which Senator O'Leary proposes to have inserted in its place is a generic description setting out the broad parameters of what would be included in the term "plant". It does not fit into a Schedule which attempts to tie down specific items of plant. Senator O'Leary asked yesterday whether I was satisfied that section 8, as it stands, would minimise the exemptions from valuation being granted by the courts. I am confident that it will, but I feel strongly that the proposed amendment could be used as another loophole to gain exemptions in the courts.
I certainly have no intention of pursuing an amendment with that effect, the Minister can be sure of that. I want to expand rather than contract the base. I understand what the Minister says and that it is a very technical definition. I am certainly not going to enter into a discussion with the parliamentary draftsman as to whether his or my definition is the better. I am certainly not going to do it through the auspices of the Minister. Acting as if the Minister was a conduit in that regard would be most unfair. Would the Minister indicate — if I could make the question simple — under the Schedule we are now considering if it is intended that all plant would be rateable or only some plant?
As I stated yesterday at some length, it is not intended that what we refer to as process plant shall be rated.
I understand that is covered by the exception.
The proposed amendment would bring in items of plant not traditionally valued.
Like?
The static part of looms in the textile industry, the static part of a sawmill machine and the static part of steel rolling mills — I trust the Senator knows what they are.
They are almost exclusively confined to the Cork area. I am quite happy with that explanation if the Minister is happy and can assure me that the restricted definition which she proposes to put in will catch all the items of plant other than the kind she mentioned. Is she sure of that, or will further judicial interpretation of this section give rise to substantial categories of plant falling outside the definition contained in this Schedule? I am not now talking about the process problem, which is also dealt with in my amendment. The Minister's proposal and my amendment both allow the exception for process. Is the Minister happy that the first four and a half lines of her definition will catch all the plant she wants to catch, or is there any improvement she can bring about which will expand and redefine that category better than in those four and a half lines?
There is nothing at all which is not beyond improvement of some sort or another, but I am assured — the best advice available to me assures me — that after many months of detailed consideration by those involved and by the parliamentary draftsman this is the best situation we have before us in relation to this matter.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 8 agreed to.
Section 9 agreed to.
Title agreed to.
Bill reported without amendment.
Could I ask the Leader of the House is it intended to have a separate Report Stage on this Bill?
In view of the debate that has gone on about the amendments, which Sentors O'Leary and Durcan have withdrawn subject to consultation with the Minister, I want to try to facilitate that process but I am anxious to put a time factor on it. If Senator O'Leary would agree, perhaps we could take Report Stage at 2.30 p.m.
In all the circumstances, having taken into account the later responses of the Minister to our questions, I have no objection to going ahead with Report Stage immediately.
I thank the Senators for that. I propose Report Stage now.
Bill received for final consideration and passed.