Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 28 May 2003

Vol. 173 No. 5

Local Government Bill 2003 [ Seanad Bill amended by the Dáil ] : Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister may explain the purpose of the amendment made by the Dáil. This is looked upon as the report of the Dáil amendment to the Seanad. The only matter, therefore, that may be discussed is the amendment made by the Dáil. For the convenience of Senators, I have arranged for the printing and circulation of this amendment. I remind Members that they may only speak once on Report Stage.

Question proposed: "That the Bill be received for final consideration."

I apologise for the absence of the Minister, Deputy Cullen, who is meeting the British Minister for Energy this afternoon to discuss a matter of interest to everyone, namely, Sellafield. He is also obliged to appear before the Select Committee on the Environment and Local Government with regard to the Estimates today.

The Local Government Bill 2003 was initiated in the Seanad last February and was passed by it on 25 March. It was then sent to the Dáil for consideration and was passed with a single amendment. This was to cater for the fact that the Bill had been overtaken by the Local Government (No. 2) Bill 2003, which dealt with bridge orders. The latter, although published after the Bill with which we are dealing, was enacted on 10 April 2003 as the Local Government Act of 2003. Dáil Éireann, therefore, amended section 8 of the Local Government Bill so that, when enacted, it will be titled the Local Government (No. 2) Act 2003. A small, consequential, technical adjustment was also required to the collective citation as set out in section 8(2).

I appreciate that this may be somewhat confusing because of the technical nature of the matter. I understand that Members have received a copy of both the original section 8 and the new version, as contained in the Bill before us, set out on a single page for their information, which I hope will clarify the position.

As is normal practice, the Bill is being returned to the House to consider the amendment made by the Dáil. The sole issue is the Title and the collective citation. I ask the House to accept this necessary revision as made by Dáil Éireann.

I welcome the Minister of State. I did not think that he would be returning because the Bill was the subject of much previous discussion and examination in the House. As the Minister of State indicated, there has been much confusion with regard to it because there was no great demand, from the general public, from public representatives from all sides of this House or from members of local authorities, etc., for the abolition of the dual mandate.

One of the principal areas of concern among elected public representatives is the lack of real powers being vested in them and also the failure to deal with the important issue of time off to allow them to deal with council matters and attend meetings of local authorities. One of the major issues of concern is the devolvement of powers to local authorities, but that is not addressed in the Bill. There are several other anomalies that should have, but were not, addressed in the Bill which would have led to the real reform of local government.

I am disappointed with the Bill and I am delighted to get a second opportunity to highlight the fact that there is no substance to it in terms of real reform of local government. I hope the Minister of State will be able to tell us when we will see the real reform of local government. The electorate and public representatives were promised that there would be real reform before the next local elections, which are due to take place in May 2004.

A facility should be put in place to allow Members of the Oireachtas to link up with activities in their local authorities. That is something we were promised in the corridors of power, but there has been no hint of regulations being introduced to give us some powers in terms of gaining access to information, county development plans, annual reports, the minutes of local authority meetings, etc., all of which are very important. I call on the Minister of State to establish a members' service unit in each local authority so that Oireachtas Members and councillors will automatically receive information from any committee or sub-committee or reports directly affecting their counties or constituencies.

There is a great deal of controversy about the Bill and we opposed it on Second and Committee Stages. Under our Constitution, the President can refer Bills to the Supreme Court. I would like to ask that—

Acting Chairman

The Senator is straying into very sensitive territory.

—the Local Government Bill be referred to the Supreme Court for a decision.

Acting Chairman

With respect, I suggest that the Senator should not stray down that particular road. We are discussing a technical amendment and, in fairness, I have allowed the Senator extraordinary latitude in the context of what it seeks to achieve. I ask that, unless he has something further to add in respect of the technical aspect of the amendment, the Senator should conclude. I will not permit him to stray down any other route.

I am merely asking that the President consider referring the Local Government Bill to the Supreme Court.

Acting Chairman

It is not conventional in this House to refer to the President. We have separation of powers in this country and this House does not refer to or advise the President on what she may or may not do.

I am not advising her, I am requesting her to consider it.

Acting Chairman

I will not encourage the Senator to continue down the road on to which he has strayed. I ask him to conclude his remarks please.

I am a citizen of this State and I voted for our President under the Constitution—

The Senator did not do so. Talk about a hypocrite.

—and I am entitled to ask her—

Acting Chairman

Not on this particular Bill. As the Senator is aware, the President has a Council of State, established under the Constitution, to advise her on these matters. I ask the Senator to conclude.

The Senator has some neck.

I have every respect for our President and she is a very good—

Acting Chairman

I ask the Senator to conclude. We are not discussing the President.

I request that she refer the Bill to the Supreme Court.

I welcome the Minister of State, but I cannot say that I welcome the passage of the Bill. The Minister of State – as I did – resisted the move to abolish the dual mandate when he held office in 1991. We did not succeed, however, and I waited eight years to be re-elected to the county council. The Bill is now going through its final Stages and, when enacted, it will be the Local Government (No. 2) Act 2003.

The points raised by Senator Bannon are covered in the Bill. However, to put my mind at ease, I request that the President refer the Bill to the Supreme Court after discussion—

Is Senator Leyden seconding my proposal?

Acting Chairman

I have already explained, in painstaking detail, that Senators cannot make reference to the President in the context of the debate. We are not discussing the President.

I appreciate that, but I would prefer it if the President, not Deputy Ring, referred the Bill to the Supreme Court. I do not want any Front Bench or backbench Fine Gael Member referring it to the Supreme Court.

Acting Chairman

That is not relevant.

It is relevant to me because I want to know what my position will be before I am obliged to give up my seat on the local authority.

Acting Chairman

As a former Minister, the Senator should be aware that, first, there is a separation of powers in this Republic—

I know but I feel very strongly about this issue.

Acting Chairman

—and, second, in terms of the procedure of the House, it is not conventional that Members make references or give advice to the President. As he is also aware, the latter is the purpose of the Council of State. Perhaps he has served on that body or may wish to do so—

Not yet. However, if I was a member of the Council of State, I would advise the President to refer the Bill to the Supreme Court.

Acting Chairman

—but that is not at issue now. I call Senator Tuffy.

Whatever about the separation of powers, power under the Constitution ultimately rests with the people. The Houses have a duty to protect that power and to ensure the constitutionality of legislation. I have argued that the legislation is unconstitutional and we should not pass such legislation. Whatever about the President referring the Bill to the Supreme Court, the issue has been raised and I hope she does do so because it relates to the fundamental power of the people. Our mandate comes from the people and it is for them to decide who they elect. When they elect a councillor who is subsequently elected to the Dáil, it is wrong to take away that mandate through legislation of this nature.

The Bill is about entrenching the Government's position in terms of its power. The Government received a derogation in respect of the dual mandate at European Parliament level so that its Deputies can run for the European elections next year. As a result, they will be able to retain their European Parliament and Dáil seats until the next general election. It will be sickening if people from the Seanad and the Dáil are allowed to run for the next European elections while we, at local government level, are being deprived of holding a much lesser dual mandate.

Acting Chairman

I advise the Senator that her remarks are being recorded and that she cannot make a Second Stage speech on what is a technical amendment. The Chair is totally neutral in this regard.

Yes, but we are passing the Bill. We should not be passing the Bill because it is unconstitutional.

Acting Chairman

All I am attempting to do is interpret what is before the House, which is a technical amendment. I cannot allow continuous political dialogue on this issue because it is just reopening the entire debate.

I will conclude.

Acting Chairman

I am only advising the Senator.

This is unconstitutional legislation and it should not be passed. I hope that the President will consider referring the Bill to the Supreme Court because that will resolve the question, once and for all.

This is a technical Bill which has been discussed at all Stages – ad nauseam, in some cases. Unfortunately, the Opposition has repeated a mistake it has made on previous occasions, namely, it confused discussion and debate with dissension. Regardless of the feelings expressed within the Fianna Fáil Party, we have concluded that the Bill will enhance local and national government. I congratulate the Minister for the Environment and Local Government, Deputy Cullen, and the Minister of State on producing it.

Like Senator Bannon, I have a difficulty with regard to the service Members of the Oireachtas, who were former members of local authorities, will receive once the dual mandate has been abolished. I have raised this issue, which could present problems in future, on every Stage of the Bill.

I support the call for the abolition of the dual mandate to be applied in a broader context rather than confining it to Members of the Oireachtas serving on local authorities. Members who stand in European elections should also resign their Oireachtas seats if elected.

Proinsias De Rossa was a Member of the Dáil and the European Parliament.

I wish Senator Leyden well in his challenge to the Supreme Court.

I have tried several times to make a contribution.

Acting Chairman

I am terribly sorry. I am trying to balance the number of contributions from each side of the House.

I am the Fianna Fáil Party spokesman on the environment and local government. I am delighted to be able to make a contribution on this Stage and I welcome the Minister of State.

I understood this to be a simple matter. The Local Government Bill 2003, which abolishes the dual mandate, was superseded by another local government Bill dealing with bridge orders. For this reason, we must now return to the issue in order to put the Bills in the correct order.

I was delighted for the people of the south-east for whom technical legislation in the Dáil resolved the matter of a bridge. We now have to sort out the Titles of the two Bills. As we have already had a lengthy discussion on the dual mandate, there is no point revisiting the issue, except to note that the question of its constitutionality is not a matter for the House, but for the President, the Council of State or the court dealing with the case taken by Deputy Ring. Our role is to deal with the technical amendment before us and to place the two Bills which deal, respectively, with the bridge orders and the dual mandate in the correct order. Once the Bill is passed, I hope we will get clarification on its constitutional position.

Acting Chairman

I apologise to the Senator for not calling him earlier. I failed to see him indicating.

I welcome the Minister of State. I share the concerns about the failure to abolish the dual mandate for Oireachtas Members who run for European elections. While I have no difficulty with the fact that a member of Údarás na Gaeltachta is currently a member of the European Parliament – more power to him – this is also a dual mandate of sorts. If we decide to abolish dual mandates, we should consider abolishing them across the board rather than solely for councillors who are also Members of the Oireachtas.

Senator Bannon raised the important issue of the level of access to local authorities for Oireachtas Members who have to give up their seats on local authorities. This issue has not yet been clarified. While I do not wish to address it in detail because it has already been discussed, I hope it will be resolved satisfactorily if the Local Government Bill 2003 becomes law.

I join Senators Bannon, Tuffy and Leyden in requesting that the President consider referring the abolition of the dual mandate to the Supreme Court. While I do not wish to get involved in a debate on specifics, there is merit in the proposal that the President ask the Supreme Court to rule on whether the legislation is constitutional. I agree with Senator Tuffy that we should not pass unconstitutional legislation. Certain members of the Government who voted in favour of the Bill also believe it to be unconstitutional, which is a highly hypocritical and unsatisfactory position to hold. However, I respect their right to—

Acting Chairman

I remind the Senator that he is making a speech more appropriate to Second Stage. While I do not wish to enter the debate, it was made perfectly clear by the Minister of State that the Bill is not unconstitutional as far as the Government is concerned. I ask the Senator to confine his remarks to the matter at hand.

That is fair enough.

The Senator has made a good contribution.

I will not prolong the debate. However, I wish to make the point that much more significant reform of local government will be required in the future. The decision to ban Oireachtas Members from being councillors is nothing more than a superficial act. If we want to have thriving local democracy, we need to do more than ban Senators and Deputies from being councillors.

I welcome the Bill and thank Members of both Houses for their contributions to improving it. The Bill passed through both Houses with majority support. With regard to its constitutionality, the Minister for the Environment and Local Government has drafted it in accordance with the legal opinion available to him. Everyone agrees that the Bill is necessary and that it has been improved on previous Stages. Nevertheless, I share the concerns expressed by other speakers concerning the basic right of a person to hold a seat on a local authority. I am sure many people, including members of the Council of State and the President, will have listened to the contributions of Members of the Houses. Doubts concerning the constitutionality of the Bill should be tested through the various options available at national level as opposed to individuals bringing cases to court to uphold the basic rights of the people.

I welcome the Minister of State and the Bill. As one who has served on a local authority for 27 years, I accept that times change and that we must move on. I draw the attention of the Minister of State to the proposed new section 237A which provides that the Minister shall make regulations which will include provisions in relation to the "supply, without charge, of notice, agenda and minutes of local authority meetings" to Members of either House. While the provision is fine, it is does not specify when Members will be supplied with such information. Will they, for example, receive it at the end of the year? The regulations should prescribe when Members receive information, particularly as standing orders would prescribe when local authority members would receive it. Oireachtas Members must receive the same notice as local authority members. Will the Minister of State ensure that this occurs?

Having listened carefully to the Acting Chairman's ruling, I do not wish to stray into Second Stage debate. Given the opportunity, however, I would be delighted to debate the issue and respond to a number of the questions asked by Senators. When I used the word "confusion", I was referring to the difficulties that might arise from having the Local Government (No. 2) Bill 2003 become the Local Government Act 2003 and the Bill before us become the Local Government (No. 2) Act 2003. I did not mean that there is any confusion about the contents of the Bill with which we are dealing.

The Bill abolishing the dual mandate, which was originally the Local Government Bill 2003, was published prior to the Local Government (No. 2) Bill 2003, which deals with bridge orders. As already stated, the latter was passed prior to the Bill before the House. Through this simple amendment, the Bill before us, when passed, will become the Local Government (No. 2) Act 2003, while the legislation dealing with bridge orders is entitled the Local Government Act 2003.

I was asked when certain facilities will be made available to Members of the Oireachtas. This will occur around the time the Minister signs the regulations, which will possibly be in the third quarter. The information made available to councillors will be made available to Oireachtas Members at the same time. The Minister gave that important assurance. I served in local government for many years. A lot of our work as Oireachtas Members involves local authorities. It is important, therefore, that information is made available to us. Members can be assured that the Minister intends to ensure this.

The amendment dealing with section 8(2) is consequential on the original amendment and one on which there is no need to go into detail. I am committed to the Bill. What is important is that Members, who represent the people and electoral areas at all levels, receive the information relevant to them to ensure that, as Members of the Oireachtas, they can provide a service for constituents. The Minister was always committed to this and never needed convincing on the matter.

I thank Senators for their contributions to the debate on the Bill and facilitating its quick passage through the House. Everyone must agree when I say local government can only benefit from such debates. The diverse range of views aired during the passage of the Bill through this House can only be beneficial. Local government is a subject close to our hearts and informed lively debate reflects our commitment in this regard. This commitment will, no doubt, endure long after the ending of the dual mandate. It is difficult to imagine the disappearance of parliamentary questions on local issues.

I thank the Acting Chairman, Seanad staff, my officials and Senators for their appreciation of the urgency of the amendment. The Bill cannot go further without being amended by this House. It will go to the President for her signature shortly and will, I hope, be enacted shortly afterwards.

Question put and agreed to.
Bill passed.
Sitting suspended at 1.45 p.m. and resumed at 3 p.m.