An Bille um an bhFichiú Leasú ar an mBunreacht (Uimh. 2), 1999: Céim an Choiste. Twentieth Amendment of the Constitution (No. 2) Bill, 1999: Committee Stage.

As the substance of the debate on the Bill will relate to the wording of the proposed constitutional amendment contained in the Schedule to the Bill and since it would be appropriate to have that Schedule decided upon before deciding on section 1 of the Bill, which provides for its insertion into the Constitution, I suggest that the House postpones consideration of sections 1 and 2 of the Bill until after the Schedule shall have been agreed.

This is a procedure which has been adopted on Committee Stage in the Seanad in the case of previous Bills to amend the Constitution and which, I suggest, would lend itself to a more logically ordered debate. I ask the Leader of the House to move, in accordance with Standing Order 107, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.

I move:

That, in accordance with Standing Order 107, consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall be disposed of.

Question put and agreed to.
AN SCEIDEAL.
SCHEDULE.

An Leas-Chathaoirleach

Amendment No. 2 is related to amendment No. 1 and both may be discussed together by agreement.

Tairgim leasú a 1:

I gCuid I, leathanach 7, líne 5, "an ról atá ag rialtas áitiúil" a scriosadh agus "prionsabal an daonlathais áitiúil agus uime sin beidh an príomhról ag rialtas áitiúil" a chur ina ionad,

agus

i guid II, leathanach 7, líne 26, "role of local government" a scriosadh agus "principle of local democracy and therefore local government shall have the main role" a chur ina ionad.

I move amendment No. 1:

In Part I, page 6, line 5, to delete "an ról atá ag rialtas áitiúil" and substitute "prionsabal an daonlathais áitiúil agus uime sin beidh an príomhról ag rialtas áitiúil",

and

in Part II, page 6, line 26, to delete "role of local government" and substitute "principle of local democracy and therefore local government shall have the main role".

Amendment No. 1 relates to the criticism I made of section 1 of the proposed new article on Second Stage. I stated it would be far more desirable and effective to have a recognition of the principle of local government, rather than a recognition by one part of the State of another part of the State. I am seeking in this amendment to address that in two ways.

The first part of the amendment seeks to delete the term "role of local government" and substitute that the State recognises the "principle of local democracy". That meets more strongly the aspirations of the European charter on local self government because it recognises the principle of local democracy.

The second part of the amendment is intended to clarify the situation. There is an increasing number of local groups which speak on various issues and are receiving deserved attention and recognition from the State. An example of this is the current use of European Structural Funds to support local development in the Operational Programme for Local Urban and Rural Development. Many groups have been assisted in their establishment under that programme. Another example is the efforts being made by the Minister's Department and others to integrate the systems of local government and local development under the city and county development boards.

My concern is that, despite the welcome development of such groups and the desire to integrate local development and local government, we should state that the principal role in exercising local democracy is played by local government. I know, from attending meetings, that others rightly claim to be participating in local democracy and local government through their involvement in local development groups, partnership groups and many other groups. I want to make it clear that I am not against that. However, I want it enshrined in any recognition that we give of local government that the democratically elected local government, as we find in our urban and county councils, has the main role in the exercise of local democracy.

I do not think the Minister can have any objection to that in principle because he clearly stated on Second Stage that the city and county development boards would operate under the umbrella of the local government system and that they would be recognised in the local government legislation which is due to come before these Houses. We are recognising and promoting other forms of participation in local government but we should also state that the main role still lies with the elected members and councils, which is what the second part of the amendment seeks to do.

The purpose of amendment No. 2 is to include recognition of regional government. Since the last major local government Act, principles have been set out for the establishment of regional authorities, which is are type of regional government. Anyone familiar with them will see they have a role to play in promoting the development of our regions. However, it is unfortunate that their role to date, and their potential to develop that in the future, has, over the past year in particular, been obscured by the debate on the division of this country for the purposes of Objective One EU funding. The new article should state that regional government is also recognised.

Reports to Government have been produced on an almost weekly basis seeking greater co-ordination in planning, transport and infrastructure. There is a case for recognising regional government, which should itself be democratically accountable. If that were established, with the protection of the Constitution, our regional structures could be developed in an enhanced and more integrated fashion and would better survive the type of robust debate we have seen over the past year.

The members of regional authorities, or of any the bodies constituted under them, are not sure what the future holds for them. One member told me last week they were assured by the Department of Finance that they will remain for the moment. That is not good enough. Regional government has a role to play in the administration and government of this country. The form it takes should not be subjected to the vagaries of the type of debate we have seen in the past year. I would like to see it established on a more formal footing, with constitutional recognition similar to that of local government.

I agree with the point the Senator is making. However, substituting the "principle of local democracy" for the "role of local government" raises the worrying question of the definition of "local democracy". We are talking here about what we are going to put in the Constitution about local government. I would like clarification on the definition of local democracy; perhaps, the Senator himself might be able to clarify it for me. How is local democracy to be defined, as against the role of local government and elected members?

The second amendment refers to regional authorities, which I agree with in theory. However, I am a member of a regional authority and the definition of a regional authority, in comparison to that of a county council, proves the council has more authority. We do not want to take authority away from the councils; for far too long we were not able to handle our own affairs and I do not want to give up our constitutional rights. However, who undermined the regional authorities? If we are to discuss this for five minutes we should be realistic about it. The regional authorities were not helped by the councils, central Government or the administration staff. An impression was given at city and county council level that the regional authorities might end up with all the authority. There is a need for constructive regional authorities. However, there should be regional councils rather than authorities. If we are talking about a new structure of local government, the Minister should realise that some regions are not doing as well as others. Is the same percentage of money being pumped into other regions in comparison with the eastern region? It is not.

We must ensure that local government is represented constitutionally, for the first time ever. I would be reluctant to introduce the phrase "local democracy" because one local community could be seen to be stronger than another and it would have the sole right. The danger is that this would be provided for in the Constitution. I will argue in favour of other amendments. However, as Senator Dan Kiely said on Second Stage, a local representative, whether elected with 100, 1,000 or 1,500 votes, must deal with the hassle and should get constitutional recognition.

I do not like the phrase "local democracy" as a situation could easily arise where a local community could dominate and others would not have any rights because they would keep quiet about it. We must be careful.

I understand Senator Cregan's concerns. However, I take the point made by Senator Gallagher as regards his second amendment. When we debated Objective One status for part of the country in the past few months, one of the serious issues which arose was that it was not a defined region. The EU looks towards regional areas so there is logic in amendment No. 2. Perhaps Senator Gallagher may wish to expand on it further.

As regards local democracy we are all in favour of trying to get as many people as possible involved in the running of the country. I understand Senator Cregan's concerns but Senator Gal lagher's amendment states that local government shall have the main role. That surely deals with objections as regards local groups taking over from local government as it is clearly being given the main role in this area.

These amendments were considered but it has been decided not to accept them. As regards amendment No. 1, it was felt that reference to local government having the main role in providing a forum for democratic representation could be open to an interpretation at odds with the intention of the amendment. For example, the use of the word "main" implies that some other system or structure also has a role in providing such a local forum for democratic representation. This constitutional implication could be a recipe for possible tensions or conflict. Non-elected groups might legitimately argue they also have a role in providing such a forum and that this is implied by the constitutional provision, albeit by default. The reference to the principle of local democracy could also be problematic as to its actual meaning.

Article 28A is aimed at recognising the principle of local government. It specifically refers to a democratic forum, directly elected local authorities exercising a range of functions, promoting the local community by its initiatives with elections held at least every five years and now the suffrage for local elections. This very much reflects the role and ambit of local government and, with all respect, I do not think the amendment adds to the article.

Amendment No. 2 proposes the insertion of the word "regional" as regards communities and the exercise of functions. However, this constitutional provision clearly relates to local authorities, the members of which will be elected on 11 June by the direct vote of the people. Regional authorities are not elected in this manner. Regional authorities are in a different position to local authorities. The current regional authorities have been in existence for only about five years while local authorities have been in existence for 100 years.

Regional authorities, unlike local authorities, were not established by primary legislation but by an order of the Minister under the Local Government Act, 1991. Their members are appointed not by direct vote of the people but by the members of the constituent county or city councils from among themselves. Also, the reference to "regional" in the article at present could perhaps have unforeseen implications for other non-directly elected regional bodies, for example, health, tourism and fisheries bodies. The question of constitutional recognition for regional authorities would not, therefore, be appropriate at this stage.

I am appreciative of the contribution local development is making to the growth and development of our communities. However, Article 28A deals with local government only. Therefore, it is not necessary to say that local government has the main role. Democratic representation is referred to in section 1 and elections are provided for in section 3. There is reference to "directly elected local authorities" in section 2. If local government is to have the main role, as suggested, does this mean local government is devalued? Article 28A must be read as a whole and it deals directly with local government.

I agree with Senator Cregan regarding the need for regional councils based on county councils and county boroughs. I have no difficulty with that whatsoever. If my amendment No. 2 was accepted, the Schedule would provide that the State recognises the principle of local democracy and therefore local government shall have the main role in providing a forum for the democratic representation of local and regional communities. It would firmly place any representation of the needs of regions within the ambit and function of local government. The councils, working upwards and together, would carry out that function. Senator Cregan and I concur on that.

As regards his concern about the possible interpretations of local democracy, the possibility for misinterpretation is not lessened by the Minister's proposal. It is proposed the State will recognise the role of local government in providing "a forum for the democratic representation of local communities. . . . ". A forum means one of many. This implies there may be other fora for the democratic representation of local communities.

Amendment No. 1 accepts we support the principle of local democracy. However, the main role in carrying that out will be exercised through the elected members and the elected council. I am afraid that other groups who may claim to be legitimately acting as other fora for democratic representation may claim a role for themselves, which I would not like to see them having because they are not directly accountable to the people in the same way as elected members of our councils.

As representatives, we are the first to undermine ourselves. We give the impression that we must answer to everybody, yet everybody does not have to knock on doors or canvass for votes. Can the wording be simplified? It has been mentioned that the language used in our legislation is complex. An amendment to the Constitution is before us and I wish that everybody could read a simplified version of it. Not everybody can read it because we want to think the same way as our English neighbours. However, I do not think that way and do not apologise for that.

When the argument is made about local democracy, I become afraid. I agree with Senator Gallagher with regard to a forum for the democratic representation of local communities. The forum must comprise elected members and my amendment consolidates that ideal. Under no circumstances should the words "local democracy" be written into the Constitution because the definition of "local democracy" is too open. It could to interpreted to include any hurling club or rugby which feels that it has strength in a particular village. I would appreciate it if agreement could be reached on a means to simplify this.

Senator Dino Cregan and I want to provide that the State recognises the role of local government in providing "the forum" for democratic representation rather than "a forum". The substitution of the words "the forum" for the words "a forum" might achieve our aim. I will come back to this matter on Report Stage.

The wording in Senator's Gallagher amendment is loose. What is the principle of local democracy and what is its main role? The amendments are a recipe for future difficulties and I am advised that the present wording is satisfactory. Deputy Dukes agreed with this in the Dáil earlier. It might be difficult to find a legal definition under these terms. Senator Dino Cregan used the word "simple". We have taken on board the recommendations of the all-party committee on the Constitution in its review. The office of President, the Dáil and local authorities are the only bodies which are elected by the people. We are reflecting that recognition of local government in the Constitution with this Bill and we seek to make it as simple as possible in the interests of the people.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 2.
Amendment No. 2 not moved.

Amendment No. 4 is related to amendment No. 3 and they may be discussed together. Is that agreed? Agreed.

Tairgim leasú a 3:

I gCuid I, leathanach 7, líne 7, "do na comhaltaí tofa" a chur isteach i ndiaidh "dlí",

agus

i gCuid II, leathanach 7, líne 29, "on the elected members" a chur isteach i ndiaidh "law".

I move amendment No. 3:

In Part I, page 6, line 7, after "dlí" to insert "do na comhaltaí tofa",

and

in Part II, page 6, line 29, after "law" to insert "on the elected members".

Article 28A.1 states:

The State recognises . . . a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.

Article 28A.3 states: "Elections for members of such local authorities shall be held . . . ". There is no recognition of the elected members of local authorities. I would appreciate it if local authorities were referred to as local councils or local government.

Article 28A.2 states:

There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.

We regulate the law. It is simple to state "conferred by law" on the elected members. Why should the Article read "in promoting by its initiatives the interests of such communities"? Elected members represent communities because they are elected by the people in them. If a regulation is passed by elected members what is wrong with stating in the Constitution that they make decisions on behalf of communities when they are elected by them? I do not understand why we must be so detailed when dealing with communities.

The Minister of State said correctly that local democracy could include everybody and they would have the right to question the Constitution. I do not say that they should not have that right, but they could be in the Supreme Court every day. Can relevant groups within a community question whether they are being represented properly or receiving proper recognition? Could they say in court that local government by its initiatives in the interests of such communities is not representing the interest of their communities? Does the responsibility lie with elected members to uphold Article 28A.1?

It should state that they "be given the authority". If one is elected, one should have the authority locally. I am thrilled that at long last we are prepared to include local government in the Constitution. I may not be a local authority member following next month's elections but if people are prepared to knock on doors, they should receive the same recognition as local government.

Regional authorities should not receive the same recognition because their members are not elected but are nominated by various interest groups. Local authorities should have more powers than regional authorities because their members are elected. However, I do not say that consideration should not be given when the local authority Bills come before us later this year for the election of regional authority members. Regional authorities should probably become regional councils whose members are elected. One should represents one's region at that level. Regional councils work in Wales, Scotland and parts of England.

Senator Kiely referred to the undermining of the infrastructure of Kerry and west Cork. There is no reason that a proper regional council should not be elected to make sure that the moneys and powers needed are provided to get those regions moving properly. The east fares much better in terms of money allocated because there are more public representatives in the Dublin area. There are 36 Deputies alone in the Dublin region who could dictate what goes on in the Dáil for the next 100 years whether we like it down the country. There is too much centralisation.

I agree with Senator Gallagher that there should be elected members on regional councils. There would be nothing to prevent them coming under the Constitution then. The Constitution should be broadened to include not only local councils or local government but also regional councils. I would not be afraid to consider that. If an amendment to the Constitution is required it should be considered. There is a need for regional councils because regional authorities do not have the mettle. They have been undermined in recent years and the Minister knows that as well as I. I am a member of a regional authority and, although I do not like saying so, it is a waste of time. It is a pity because the members mean so well. Structures should be put in place and money provided, for example, to improve roads in Cork and Kerry. We should not be afraid to provide in the Constitution for elected members. That is democracy at its best. We are trying to broaden local democracy by promoting the interests of local communities. Elected members have a duty to satisfy everyone.

The effect of amendment No. 3 would be to amend section 1 of Article 28A to recognise the role of local government "in exercising and performing at local level powers and functions conferred by law on the elected members. . . . ..". I will make a few points on this proposal and on amendment No. 4 which would make a similar amendment to section 2 of Article 28A.

All local authority functions are exercised on behalf of the local authority which is the corporate entity. The important policy functions – determination of estimates, land use development plan, water quality plan, scheme of letting priorities, etc. – are exercisable by the elected council. Day to day functions are vested in the executive with a range of powers available to the members to oversee the executive, for intervention in specified circumstances and to adapt policy as required. That has been the theory on which our current system is based and I will return to this matter in a moment.

Functions are performable by the policy arm and by the executive arm of the local authority in much the same way as by a board of directors and by the chief executive of a company. All functions are, however, functions of the local authority. Amendment No. 3 would have the effect that only the policy arm of local government would be encompassed in the Constitution when it is the totality of all local government operations which affect citizens, whether exercised by the policy or by the executive arm. To return to the theory on which our system is based, that of policy and executive, it is proper and widely accepted that some functions are not vested in the policy arm, such as the allocation of individual benefits, for example, matters such as staff appointments and house allocations. The system has developed in a way where by virtue of the fact that elected members have been part-time, poorly resourced and supported, they are as a consequence at a distinct disadvantage in exercising their policy role as compared with a full-time executive. By default, therefore, their role has often fallen to the executive. It is fair to say the overall balance within the system has tended to tilt towards the executive. The reform programme now under way aims to redress this balance in a variety of ways. These include better support and backup for members via the SPC system supported by directors of service and improved information/training for members for which an appropriate programme is currently being drawn up by a representative working group. For the first time a proper induction programme will be available to all new members this year. Ongoing training/information measures will also be put in place. The Local Government Bill being prepared will provide a key role for the corporate policy group in the work of the local authority, an extended term of office for the Cathaoirleach, the introduction of direct election at a future date and a new statutory framework enabling the elected council to oversee the executive.

I have no doubt that taken together these and other measures have the potential to redress the democratic deficit in the system. Practical measures such as those I have outlined will tilt the balance. I remain unconvinced that the Senator's amendment would effect any worthwhile change but on the contrary could have the effect of limiting the extent to which the role of the local government system as a whole comprising functions exercised by elected members and by staff, is reflected in the Constitution. While I agree with the Senator's apparent aim to increase the significance of the role of the members, the Minister is taking practical action to that end. The Constitution should recognise local government in the round in all its operations as it affects the people. Lest there is any doubt as to the acknowledgement of the elected members in Article 28A I draw specific attention to the wording in section 1 which refers to "a forum for the democratic representation of local communities", section 2 which refers to "directly elected local authorities", section 3 which provides for "elections for members . . . . . . . " and sections 4 and 5 which will be dealt with by later amendments.

Amendment No. 4 is similar to amendment No. 3 and also seems to bring with it the implication that all functions are exercised and performed by the elected members albeit in accordance with the law. It is clearly an impractical proposition that all functions could be exercised by the members. All local authority functions, not only of the policy arm but also of the executive, should be required by the Constitution to be exercised and performed in accordance with the law. The amendment would let the executive off the hook. This again raises the fact that all functions are performed on behalf of and in the name of the local authority, whether they are of a policy or an executive nature.

In all the circumstances, I ask the Senator to withdraw these amendments as they may well have the effect of limiting the constitutional provision. Real action is under way to enhance the role of elected members and the elected nature of local government is already encompassed in Article 28A. Article 28A must be read as a whole, paragraphs 1 to 5 together. Paragraph 1 deals with democratic representation, paragraph 2 provides for directly elected local councillors, paragraph 3 provides for elections and paragraph 4 deals with voting. All in all, this is a clear indication that the elected member is to the forefront in this area.

In many ways the cart is before the horse in the explanation given to us by the officials, the Minister and the Government. The Minister has outlined in detail his thinking on the future structures of local government and I welcome that. I know what local government is about and what an executive council means. We have an executive right to dictate as we so wish on management functions.

I will withdraw my amendments because I understand the Minister's explanation on the five items. I strongly make the point that if something is to be inserted in the Constitution the relevance of ensuring the importance of local government should be highlighted and also that it is a serious matter in that there is responsibility from an executive point of view in spending money. I made that point earlier.

I congratulate the Minister on his broad mindedness in dealing with the Bill and on the way councils should be set up. Has consideration been given to whether there should be a defined period for a council or an executive council? Are we considering the American system? If we are we should say so. We should not be afraid to tell people what is happening. Senator Gallagher also referred to this point earlier. There would be merit in having a leaflet before election day explaining what this Bill means to the Constitution and what Article 28 means to us. We should be explaining what the future of local government will be like. We should not be saying it here and not telling anybody else. Everybody is not being informed. We should then not be afraid to ask if we should be considering the idea of having regional as well as local councils. Should we eliminate certain councils and broaden our minds a little? Should we also make the point that there is, whether we like it or not, an unfairness in the way in which the system operates against local councils? I will not refer to them as local authorities any more because they do not have enough power. That has been proven through the years. Our infrastructure is falling down around us because of a lack of authority. If we are now to be afforded that authority under the Constitution, then the people should be informed of that decision before 11 June. The Minister would do himself no harm in doing that. A leaflet explaining what this article means should be put in every door. It is very important. We should not be afraid to tell people that there is no reason that future local government should not be able to consider the idea of having four or five regional councils in the country. There is no reason we could not have a regional council covering Waterford, Kerry and Cork. We would really be moving then. As I see it, the elected Members of the Oireachtas would be the watchdogs. The Minister may correct me if I am wrong.

The local government Bill which will come before this House later this year will address many of the concerns the Senator has expressed. Many of the points raised today are not relevant to this Bill but nevertheless it is appropriate that Members be allowed to refer to them. I take Senator Cregan's points on board. We are here today to give recognition to local authorities and the people who have served the country for the last 100 years.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 4.
Amendment No. 4 not moved.

Tairgim leasú a 5:

I gCuid I, leathanach 7, idir línte 13 agus 14, an méid seo a leanas a chur isteach:

"3. Gach saoránach ag a bhfuil ceart vótála i dtoghchán comhaltaí do Dháil Éireann agus cibé daoine eile sa Stát a chinnfear le dlí, beidh ceart vótála acu i dtogchán do chomhaltas údaráis áitiúil.",

agus

i gCuid II, leathanach 7, idir línte 34 agus 35, an méid seo a leanas a chur isteach:

"3. All citizens who have the right to vote at an election for members of Dáil Éireann, and such other persons in the State as may be determined by law, shall have the right to vote at an election for membership of a local authority.".

I move amendment No. 5:

5. In Part I, page 6, between lines 13 and 14, to insert the following:

"3. Gach saoránach ag a bhfuil ceart vótála i dtoghchán comhaltaí do Dháil Éireann agus cibé daoine eile sa Stát a chinnfear le dlí, beidh ceart vótála acu i dtogchán do chomhaltas údaráis áitiúil.",

agus

in Part II, page 6, between lines 34 and 35, to insert the following:

"3. All citizens who have the right to vote at an election for members of Dáil Éireann, and such other persons in the State as may be determined by law, shall have the right to vote at an election for membership of a local authority.".

The Minister has addressed this point in the changes he made to the Bill between its initiation, passage through the Dáil and introduction to this House. My colleagues and I felt it was important to state, in providing any recognition of the role of local government under the Constitution, who is entitled to vote for local government. The Constitution contains reference to who can vote for national Government and it is logical that it also contain a reference to who can vote for local government. I welcome the changes made by the Minister and, accordingly, I withdraw my amendment.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Tairgim leasú a 6:

I gCuid I, leathanach 7, idir línte 13 agus 14, an méid seo a leanas a chur isteach:

"3. Ionas go nglacfar cinntí ar leibhéal chomh gar do na saoránaigh agus is féidir i gcomhréir le prionsabal na coimhdeachta, beidh inniúlacht ag údaráis áitiúla cibé nithe a dhéanamh de réir dlí a mheasann siad a bheith riachtanach nó inmhianaithe chun forbairt shóisialta, gheilleagair, chomhshaoil, áineasa, saíochta agus ghinearálta a bpobal chur chun cinn.",

agus

i gCuid II, leathanach 7, idir línte 34 agus 35, an méid seo a leanas a chur isteach:

"3. So that decisions are taken as closely as possible to the citizen, in accordance with the principle of subsidiarity, local authorities shall have competence to do such things in accordance with law as they consider necessary or desirable to promote the social, economic, environmental, recreational, cultural and general development of their communities.".

I move amendment No. 6:

6. In Part I, page 6, between lines 13 and 14, to insert the following:

"3. Ionas go nglacfar cinntí ar leibhéal chomh gar do no saoránaigh agus is féidir i gcomhréir le prionsabal na coimhdeachta, beidh inniúlacht ag údaráis áitiúla cibé nithe a dhéanamh de réir dlí a mheasann siad a bheith riachtanach nó inmhianaithe chun forbairt shóisialta, gheilleagair, chomhshaoil, áineasa, saíochta agus ghinearálta a bpobal a chur chun cinn.",

and

in Part II, page 6, between lines 34 and 35, to insert the following:

"3. So that decisions are taken as closely as possible to the citizen in accordance with the priniple of subsidiarity, local authorities shall have competence to do such things in accordance with law as they consider necessary or desirable to promote the social, economic, environmental, recreational, cultural and general development of their communities.".

This amendment refers to the point I made on Second Stage regarding a deficiency, in my view, in the constitutional amendment as proposed which relates to recognition of the principle of subsidiarity. I have tried to outline what that means in the latter part of my amendment. We are basically saying that everything that can be done at local level should be done at local level. Nothing should be taken to central Government which can properly be done at local government level. Local government should have the competence to do anything which the members of the council think should be done to promote their area be it social, economic, environmental, recreational or cultural development. We should clearly be saying that local government has the primary role in looking after the needs of the people in its area; everything which is within their practical competence to do should be done by them.

I am tabling this amendment because we, as a country, supported the incorporation of the same principle into the Amsterdam Treaty on the operation of the European Union. We said nothing should be taken to Brussels that can be done at home. Equally, we say nothing should be done at central Government level which can be done at local government level.

This amendment seeks, inter alia, to amend section 3 of Article 28A to set out the competences of local government. This matter is already dealt with by section 1 which recognises the different roles of local government as a democratic forum in exercising functions conferred by law and by its own initiatives in promoting the interests of local communities. Section 2 makes clear that local authorities shall exercise such functions as may be conferred by law. That must be seen against the background of the provisions of section 1 as to the role of local govern ment. The next step, therefore, is to look at the law. There is a whole series of separate legal codes which confer functions on local authorities – planning, housing, roads, road traffic, derelict sites, litter, environmental protection, water services, fire services etc. Local authorities also have, under section 6 of the Local Government Act, 1991, a power of general competence which states:

. . . . .to take such measures, engage in such activities or do such things in accordance with law (including the incurring of expenditure) as it considers necessary or desirable to promote the interests of the local community.

Under that section a measure, activity or thing shall be deemed to promote the interests of the local community if it promotes directly or indirectly, the social, economic, environmental, recreational, cultural, community or general development of the functional area, or any part thereof, of the local authority concerned or of the local community, or any group consisting of members thereof.

Senators will note that section 1 of Article 28A reflects the wording of the general competence provision of the 1991 Act by recognising the role of local government ". . . . .in promoting by its initiatives the interests of such communities".

Therefore, I consider the amendment to be unnecessary apart altogether from the difficulties which it raises. It is unclear as to what competencies would arise from such a constitutional provision giving rise to possible disputes in the future as to the role of local authorities as regards other sectors with separate arrangements like social welfare and health or education. This is not to deny a possible role in such areas but we should avoid further complexity by bringing constitutional arguments as to competencies into the picture. These are matters for regulation by law without an overlap of constitutional complexities.

There is every reason such an amendment might have the most unforeseen effects. For example, arguments were set out in the Report of the Commission on Town Local Government, published in April 1996, that the principle of subsidiarity in effect requires that local authority functions should be allocated to a single level of local authority, not simultaneously to different levels as in our current town and county system. There is surely a major potential for dispute and conflict here which should be avoided both between local authorities and between local authorities and other bodies and between central and local government.

I consider, therefore, that the matters in the proposed amendment are not appropriate to the Constitution but to law, that the amendment has the potential to give rise to unforeseen effects and that the law already confers a wide range of functions on local authorities. The role of local government is adequately addressed in sections 1 and 2 and I must therefore, reject the amendment as unsafe and unnecessary.

The report I refer to states:

An arrangement whereby the same degree of responsibility for a particular function is allocated to different levels of authority does not accord fully with a logical application of the principle of subsidiarity whereby public services should be devolved to the lowest practicable level at which they can be discharged efficiently and effectively. This principle implies that, as far as possible, responsibility for a particular function should rest at a single level of authority.

Mr. Cregan

The Minister will understand the line I am taking here. He used the words "in accordance with the law". Who makes the law? We make the law. The local authority would not have a say anyway because we make the law at national level. I see nothing wrong with that. They will have to do it in accordance with the law.

In Cork we are between two local authorities. Cork Corporation is an urban authority and there is a county council on the boundary. Limerick and Waterford are the same, as was Dublin city before it had to be divided. There is conflict between two authorities in Cork. The city suffers because it has to service another 150,000 people living in the county. The county receives the benefit and the city must provide the services. Does the Minister believe that is correct? That is exactly the situation. It is difficult to believe that when one passes under a bridge one is in the county of Cork while still being in the middle of a massive urban area. Douglas, Bishopstown and Ballyvolane are examples. The city must provide services in these areas.

There have been situations where the county has availed of facilities and has received the benefits of retail outlets and rateable valuations of which the city cannot avail. We cannot allow that to continue as it stifles cities. Limerick is a perfect example of that, as the Cathaoirleach knows. It cannot extend its boundaries. Cork is in the same situation. Dublin is very lucky because it has very high rateable valuations. When the Minister is drawing up the regulations relevant to the new local authority structures he should remember we do not want constant conflict between two councils because of benefits which one council can gain. Why should one council provide the services? Why is central Government not prepared to recognise that infrastructure in urban areas is being undermined by people making money in rural areas. I am not trying to undermine rural areas. We should work towards making rural areas better. They are doing that in Clare and I welcome it.

Total authority cannot be given to a council to do things its way, whether the rest like it or not. They must do things in accordance with the law. The amendment is a contradiction because it states "in accordance with the law", whereas we decide the law.

Senator Cregan raised some very important points, many of which will be dealt with in the forthcoming local election legislation.

Rightly so.

We are here to talk about a constitutional amendment. The Senator had some valid points which we are interested in hearing but they can be addressed at a later stage.

It is very disappointing to hear it said that the principle of subsidiarity is too difficult in practice for us to put into operation. We fought for it in Europe. We said everything should be left to the lowest possible level as regards national governments and Europe, and the same principle should apply to the relationship between local and national government. I was disappointed to hear the Minister's response on this today. Rather than face up to it and deal with it, we are ignoring it and not addressing it. I suppose we will have to wait for the local government legislation to tackle it again. I am disappointed that in effect we have been told it is too difficult to put into practice at local government level at a time when we are performing an important function in assisting the recognition of local government under the Constitution.

Senator Gallagher has made a very good point regarding the way the EU wants us to go. However when we tried to get as many places as possible included under Objective One status, they did not allow it.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Tairgim leasú a 7:

I gCuid I, leathanach 7, líne 15, "nach luaithe ná cúig bliana agus" a chur isteach i ndiaidh "tráth",

agus

i gCuid II, leathanach 7, líne 35, "no earlier than five years and" a chur isteach i ndiaidh "held".

I move amendment No. 7:

In Part I, page 6, line 15, after "tráth" to insert "nach luaithe ná cúig bliana agus",

and

in Part II, page 6, line 35, after "held" to insert "no earlier than five years and".

I listened to the Minister speak on Second Stage regarding the five years and I understand. There could be a change at EU level and there could be elections in May. Perhaps we could have elections after five and a half years. It does not have to be five years, it could four years if we decided that. Is it possible we could specify it in months rather than years? I understand the Minister's dilemma. If the European elections are held in May, we will not get a full five years at local election level. I will not press this amendment, but perhaps the Minister might consider this for the Schedule.

Some flexibility on this is very important for the Government. If a European election is called for May and local elections are fixed for June as they have been, we are out before the public within two or three months and that is wrong. I am delighted that the European elections are being held on the same day as the local elections this year. It is good for democracy and everybody involved in the system. It is good for the European elections.

The effect of this amendment would be to require local elections to be held within five years after the year in which local elections were last held. This would have the effect, for example, that it would never be possible for the Oireachtas to decide in future that local elections should be held on a four year rather than a five year cycle. Currently there are no proposals to do so. The current law, the Local Government Act, 1994, stipulates that local elections are to be held every five years. The Constitution will now provide that it will be impossible to extend this period. However it would not be wise to limit constitutionally the option of a shorter electoral cycle. Many European countries have local elections every four years. There seems to be general agreement in this country to have them on a five year cycle and some European countries follow this pattern. This issue can be discussed further when the local government legislation comes before the House later this year.

I ask the Senator to withdraw his amendment. The essential point is that it will no longer be possible to extend the five year cycle.

I understand what the Minister is saying. He is not saying they will take place after five years. Under the new local government structure coming before us in the autumn there could be executive councils on a four year cycle. It would be like the American system and councils would be elected for four years. There could also be local elections every two years but only half the council would contest the election which is also like the American system. I do not want to suggest it is a bad structure, but it is not a great structure. Local government in Ireland has performed exceptionally.

The problem with local government in Ireland is that it did not have punch or money. If it had its own money or funding, it would have performed much better. Dublin is the proof of that. Dublin does exceptionally well because there is a good income from rates. That is not the case in other parts of the country.

I will withdraw the amendment because I understand what the Minister is saying. However, if the Minister proposes a four year council, there should be a four year executive council.

I support the thrust of Senator Cregan's point. I served on an urban council for the past five years. When I was elected to it in 1994, it was initially to have a four year term because the urban elections had been postponed for so long. They were to take place in 1994. Last year the urban and county council elections were to be brought into harmony again. I believe that five years is a reasonable period. In terms of the programme of work my colleagues in Tullamore Urban Council and I set out for ourselves in 1994, had we been called to account for that last year we would have had a lot of work in the pipeline, almost done, nearly done or in the process of being done. It has taken almost the full five year term to deliver what we set out to do. Five years is a reasonable term and I would advise against shortening it.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Aontaíodh an Sceideal.
Schedule agreed to.

On a point of procedure, on foot of the debate on my amendment to section 1, I indicated that I wished to table a further amendment on Report Stage.

I understand that. We will have a short suspension of the sitting between Committee Stage and Report Stage.

I am not familiar with the procedure for dealing with this type of legislation. If the Schedule is already agreed, will it be in order for me to introduce an amendment on Report Stage?

Not at this stage. When Committee Stage is concluded, there will be a short interval before Report Stage. This will give the Senator an opportunity to table his amendment for Report Stage.

I fear that if the Schedule is agreed it cannot be changed.

The Senator can table an amendment on Report Stage.

Aontaíodh ailt 1 agus 2.

Sections 1 and 2 agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.

When is it agreed to take Report Stage?

At 5.05 p.m today.

Sitting suspended at 4.55 p.m. and resumed at 5.05 p.m.