Tuesday, 2 December 1924
Dáil Éireann Debate
Mr. CONNOR HOGAN: I do not like to let this section pass by without at least some discussion on it. Is it proposed that a person who was formerly in the employment of a local body and afterwards transferred permanently to the Civil Service should have his pension paid by the local authority? I am afraid that it is hardly a fair principle and a fair proposition to put to the House. In the first place, this man has left the local authority presumably to better himself, and I think the ordinary rule of the commercial world is that a man who leaves like that forfeits all right to a pension, and he certainly forfeits it in this instance. In this case the Government, before they should withdraw any servant of a local authority, must surely see that he has some natural aptitude for the new role, and I do not think that it is a fair proposition to ask the local authority to pay part of his pension. If they need his services so urgently the least the Central Authority should do is to pay for them, and I am afraid that I, for one, cannot very well allow this part of the Bill to pass without making a vigorous protest against such a provision, for which I believe there is no precedent.
MINISTER for LOCAL GOVERNMENT and PUBLIC HEALTH (Mr. Burke): In another section, provision is made for the transference of an officer from one local authority to another, and for the payment of that proportion of the pension of the local officer for which he has given service to a particular local authority. This is a further extension of that principle. Where an officer has been found to be specially competent to serve the Central Government, it was considered wise that facilities should be given to transfer that officer to the Central Government.  As the law stands, if an officer has, say, fifteen years' service under a local authority, he can get no credit for that service in his pension; the Central Government can only pension him for the services that he has rendered to them, and the pension he will receive on that amount of service would not be at all adequate to compensate him for leaving the local authority. So that in practice you could not get the service of any competent official for the Central Government if some provision of this kind was not made, and in practice, the local authorities have raised no objection to this measure, which was discussed fully on the last day that the Bill was before the House. I consider that it is one of the best provisions in the Bill, and I am surprised at the Deputy's attitude on the matter.
Mr. JOHNSON: I think that the Minister has not remembered the circumstances exactly. I think this section was not discussed fully. We had begun to discuss it, and to raise questions in regard to it, but it is not quite clear, so far as I understand if—I admit I possibly misinterpret it—that it is not a section to enable the Government to get out of some of its liabilities and throw them upon the local authorities. A discussion took place before we adjourned and the question arose as to the possibility of including in the years of service an officer who had been serving a North of Ireland authority. It was argued then that the new authority in the Free State taking up that man's services did so because they knew of his capacity and, undoubtedly, would pay more accordingly, and therefore I think that the Minister——
Mr. JOHNSON: True, it was on a previous section, but on that section the Minister adopted a certain line of argument. He said that the new appointing authority had a duty imposed upon it of finding out the qualifications of the person it was employing, and paying him accordingly, and he had no right to look for a pensionable interest in the services he rendered to another  authority outside, the Saorstát. But now, on this section, when the Minister proposes to allow services rendered to a local authority, say for two years, the Government may come along and take that man's services. He resigns or is displaced for some reason. He may then claim certain rights under the Act as though he had served ten years. I am at a loss to understand the logic of that case. If there is anything in his contention, that the authority taking that man's services had a right to pay him according to his value —that was the argument in the previous case—so, surely, should that be the argument in this case.
The Government, in taking that man's services away from the local authority, should compensate him accordingly, and when he leaves the Government service the Government should be liable for anything accruing to him, and the new authority that takes him should be liable from the point of the beginning of his service with them. I would like to put a direct question: How many persons is this clause intended to affect? How many persons up to date? Is it a clause designed to benefit one, two, or three persons? Is any considerable number of persons affected up to date? I think the Minister, if there is any other interpretation than that which I have tried to place upon it, should tell us what is meant, in layman's language. There is a little difficulty in understanding all its implications.
Mr. SEARS: Deputy Johnson is right in stating that this point was raised before, but there is a difference. When an official is transferred to the State from another authority the State will pay the pension in proportion to the time that he was in the service of the State, and it will call upon the local authority to pay in respect of the time he was in their service. An amendment that was proposed here suggested a different thing. It suggested that not alone should the State pay the pension in respect of the time the man spent in the service of the State, but also in respect of the time he spent in another employment, which, in fact, in this particular case was the Northern Government. The attitude of the Minister  is not so inconsistant, because in both cases he proposes to pay the officer a pension in respect of the years during which that officer served the State, but in this case, in the section before us he has control over the local body and he asks the local body to pay the pension for the time only in respect of which this officer gave his services to the local body.
That is a very fair proposition. How could he do that in the case of the Northern Government? He could not; it is impossible, and there is that difference between the attitude of the Minister to-day and his attitude with regard to the amendment on the last day. The second point made by Deputy Johnson is that only a few men, possibly a small number, are affected. I am surprised at Deputy Johnson in particular taking up that attitude, because if it was only one officer, and if it was a fair and just thing to do, it should be done. Even if only one individual is concerned, we should see that no wrong is done.
Mr. T.J. O'CONNELL: I find it very difficult, I must confess, to understand all the implications that are in this section. In so far as I understand it to mean that credit is being given to a public servant for all his years of service, I am certainly in agreement with the principle. I think it is a sound principle, and I would like to see it extended in other directions, namely, that when a man comes to be pensioned he should get credit for all his years of service. The fact that a man does not, in some of the services, operates very detrimentally to the service. I will give a case in point. National teachers are usually appointed to the inspectorate, and it is agreed that national teachers, generally, are the most suitable persons to appoint as national school inspectors, but if a national teacher has 20 years' service as a teacher for pension purposes, and then he is appointed inspector and serves 20 years more, he will not get credit for the purposes of his pension for the number of years he has served as a teacher. He will only get credit for the time he serves as an inspector, and the net result is that experienced teachers do not and will not go on for the inspectorate. I just give  that to show how things work in other branches of the service.
As to who should pay this, I am not very particular. I think that a good deal can be said for the principle which seems to be embodied in this Bill, namely that the local authority should be responsible for the pension for the years that he served the local authority, and that the central authority should be responsible for the pension for the years he serves with it. That seems to be a sound principle, but there may be arguments put up against it. You might say that a man going over to the central service would be such a type of man, as Deputy Johnson argues, that the Government would think it worth while to take over the liabilities that are contracted in the matter of pension by his previous services. I would like the Minister to explain one or two things in connection with this. In the first place—and I raised this point the last day and I certainly was not satisfied with the answer the Minister gave—I ask if the principle is a good and sound one why should the date be fixed as the 6th December, 1922, if a servant was taken over by the Civil Service of the Central Government, say, in 1918, or 1919?
I do happen to know some officials, for instance, in the Department of Agriculture, who were taken over at that time and who were cut out by this fact that the date was made the 6th December, 1922. The reply the Minister gave me was that that was the date on which the Free State was set up, but that is not the explanation. It is only, perhaps, a coincidence, but unless he argues that he has no power and that it would be unconstitutional for him to make provisions in a measure of this kind, I would ask him to do for the servants who were taken over before 1922 what he proposes to do for those who were taken over afterwards. I cannot for a moment believe that he would contend any such thing or urge that it would be impossible or unconstitutional for him to make that provision. I say if it is equitable in the case of those who were taken over since 1922, it is also equitable in the case of those who were taken over before that. There is  another point, and this is why I would like the Minister to give an example of how the thing is going to work. Let him take the case of a servant, A.B., who has been transferred, and tell us exactly what is going to happen. I ask that specially in view of sub-section 2, which says:—
“The powers of a local body to grant an allowance by virtue of this section to an officer who resigned his office before the passing of this Act may be exercised at any time not more than three months from the passing of this Act.”
Mr. O'CONNELL: “May be exercised at any time not more than three months after the passing of this Act.” I have failed to grasp what exactly that means. I thought when I looked casually at the section first what was going to happen was that a man who had given 12 or 14 years' service in a local capacity and then who had come in and given 20 years' service in the Central Government, when his time came for pension, could claim a certain proportion from the local authority and a certain proportion from the central authority. Evidently it does not mean that, or if it does I cannot understand what is the force of sub-section (2). I would be glad if the Minister would make a little more clear what is the intention of the section and how it will actually work out in individual cases.
Mrs. COLLINS-O'DRISCOLL: Deputy O'Connell has, to some extent, anticipated what I was going to say. He mentioned the cases of officers appointed prior to the 6th December, 1922. I have been looking into this question, and I think that a few verbal changes would meet what Deputy O'Connell and I desire. If the Minister deleted from the words “6th December, 1922” in line 24, to the word “thereupon” in line 28, and immediately after the word “two” in line 34 inserted the words “having not less than 10 years' continuous service in the case of an officer of a local body”—I think that would meet the  point. I am sure it is not the intention of the Minister to penalise any officer appointed to a permanent position, say, in December, 1921, or any date prior to that. If the Minister would look into this matter before the Report Stage I would be very much obliged.
Mr. BAXTER: It is very difficult to understand what this section carries with it. I am in agreement with Deputy Connor Hogan in his remarks. I think that sub-section 2 is very vague from the point of view of an officer who may be entitled to, or who is claiming, a pension from a local body, because the sub-section says that the local body may exercise this power. There is no obligation on the local authority to grant this officer a pension, and there is no obligation on the central authority to grant him a pension for his period of service with the local body. Such officer would stand in a difficult position. The section as it stands must leave both the local authority and the officer affected by it in a difficult position.
I think that the section wants reviewing, and I am in agreement with Deputy O'Connell, and Deputy Mrs. Collins-O'Driscoll, who say that it would be manifestly unfair that an officer having service with a local body, and transferred to the National Government before 1922, should find himself in a position of being certain of a pension for the period served with the national authority, but when it comes to a question of securing a pension for his period with a local authority would find his position governed by Sub-section 2. Such an officer would find himself in the position of not being able to claim from anybody, either from the local body or the national authority for his period of service under the local authority. The Minister would do well to look into this section again. I would support the section as read by Deputy Mrs. Collins-O'Driscoll. The date should, if possible, be put back to December, 1918. Perhaps if the date were changed it would achieve the object which both Deputies want, but the section as it stands is not satisfactory.
Mr. JOHNSON: I would like to restate  the position about this matter. An officer of a local body who, after 6th December, 1922, is appointed to a permanent situation in the Civil Service, is entitled to be brought under the provisions of Section 37, Sub-section 1, but the powers of the local body to grant such allowance are to be exercised within three months of the passing of this Act. The term, “permanent situation,” is, I think, unusual. Persons are usually appointed permanent officers. But in the case of “a person appointed to a permanent situation in the Civil Service,” it seems to me that the local body which he has hitherto served, must decide within three months after the passing of the Act whether or not that persons is to receive a pension from them at the time of his retirement, whether that retirement is then or at some future date.
Mr. JOHNSON: That is the point. A person would have been taken from a local authority by the Executive Council, placed in a permanent situation in the Civil Service, and yet it is contemplated that this section can apply to certain persons who have already resigned or been removed for some reason or another from that permanent situation. Take the case of a man who served two years with a local authority at, say, £500 a year, and who at any time after the 6th December, 1922, was taken into the employment of the State in a permanent situation. Say that for some reason or another he resigned from that State employment under the provisions of this section, the local authority with which he served for two years could pay him a sum not greater than two-thirds of his yearly salary at the time of his retirement. If I am wrong in that statement I would like to be corrected, but if that is possible under this section it is clearly necessary to amend it, unless we are going to say that service of two years to a local authority is going to be made pensionable, provided the State robs the local authority of the services of that good man.
Deputy Mrs. Collins-O'Driscoll's suggestion  of ten years' service removes my chief objection to this, but, so far as I can see, it is going to place the obligation on a local authority to pension servants who served them for a very short period, possibly because of their political qualifications, and who were taken into the State service, also because of political qualifications, and possibly removed from the State service because of political disqualifications. The local authority is expected to pay a pension to such ex-servants for two years' service. I think that that is possible under this section. One may think it is almost designed to suit that kind of case. If it is not so, I hope that there will be some amendment made to prevent that occurring under the section.
Mr. T. O'CONNELL: Will the Minister explain Sub-section (2): “an officer who resigned his office”? Which office does that mean? Does it mean he resigned the local office and joined the central authority, or does it mean resigning from the central authority?
Mr. BURKE: With regard to the point raised by Deputy O'Connell and Deputy Mrs. Collins-O'Driscoll as to why we fixed the date on the 6th December, I have already mentioned that that was the date of the Constitution. Deputy O'Connell mentioned the case of people resigning previous to that from local bodies, but if they did so, it was under another regime, and they entered into contractual relationship with another Government, and it was for that Government to look after their interests, and it was for these  people also to look after their own interests in entering into that contract.
Mr. BURKE: An undertaking was given that some arrangement of this kind would be come to. That is the reason why it is provided for in this particular way. With regard to the other points, I think there is a weakness in the section. As to Deputy Mrs. Collins-O'Driscoll's point about officers being eligible for a pension after 10 years' services with local authorities, I will look into that. In the ordinary course an officer of a local authority, say, A. B., was taken over in 1923, after having, say, 20 years' service, and he had a salary of £300 per annum when he was taken over within three months of the passing of the Bill—this is dealing with retrospective cases, but, of course, it will deal with future cases as well—his pension is to be fixed, for it is only right that the members of the local authority who were in office at the time he gave service, and knew all about that official and what service he gave, should be in a position to state what his pension should be. For that reason there should be some limit put on the date at which the pension should be fixed. It would be very difficult for a council coming in in 10 or 15 years' time to decide what pension an officer should get; therefore, we thought it advisable to make the limit three months.
The pension will not become payable at that date; it will remain in abeyance, as it were, until the officer finally leaves the service of the Civil Service, and then the central authority will pay him a pension proportionate to the service he has given to them, and the pension that was previously fixed by the local authority will begin to flow from the date that he begins to leave the Civil Service. It is necessary to have that  check on the officer, in case he might not give proper service to the Civil Service. If he could go out on pension without authority, or without giving satisfaction to the Civil Service, it would be a weakness in our Civil Service. For that reason it is necessary to keep this check over him until he finally goes out on pension.
Mr. BURKE: I have agreed to it with regard to the 10 years. I do not think you can ask me to consider the case of officers appointed by the British Goverment, and taken on with their eyes open, and who entered into a contract as to what their position should be. There is no reason why we should put them in the same position as officers who entered into a contract with a different Government.
Mr. BURKE: As the section stands an officer who had, say, only two years' service under the local authority would be eligible for pension under this section, and would be in a different position to every other kind of officer under the Bill, and it is necessary to insist that this section will apply only to officers with ten years' service.
Mr. GOOD: I think the section goes further than that, and that the Minister is beginning to see there is more in the section than was intended. Not only is an officer entitled to a pension for the two years, but he is to be  treated as if such officer had resigned such office after attaining the age of 65, or at least 20 years' service. With regard to the reading of the section, an officer with two years' service is to be treated on resigning from the local authority as if he had reached the age of 65, or had given at least 20 years' service. There is an ambiguity about that that ought to be cleared up.
Mr. JOHNSON: I think Deputy Good has fallen into an error, which I also fell into, but I am satisfied that it has been cleared up. There are two classifications. In the case of the local body, upon such a person resigning he may receive an annual allowances not greater than two-thirds of his yearly salary. In the other case the local body may make a grant, or an annual allowance, to certain other classes of persons who have had 10 years' service. I do not think that the section contemplates paying such an officer on the basis of his 20 years' service, but I think the Minister has met my chief objection to the section, and that is that the officer with a short service with a local authority is entitled to a pension for that service, even though he does not go back to any local authority.
I would approve of the years of service before going upon State service, and if he goes back to a local authority earlier service being added for the purposes of pension. But I was opposed to the suggestion that a person who was taken by the State from a local authority should then be pensionable at the charge of the local authority, whereas if he had been taken not for State service but by some private employer the local authority would have no responsibility for pension. That is the flaw I wished particularly to draw attention to, but the Minister has consented to make it clear that no person with less than 10 years' service on a local authority would be entitled to the privileges of this section. I think the other point Deputy Good has raised is not quite sound, though I raised it myself in the first instance.
Mr. CONNOR HOGAN: Notwithstanding the defence of the Minister, I am scarcely satisfied; in fact, I feel that this is an inadmissable principle.  The Minister bases his defence of the section on the usual hypothetical case, and that it marked merely the development of a principle formerly endorsed in this Bill, that is, the transference of an officer from one local authority to another, but surely he has not forgotten that that transfer of an officer from one local authority to another is necessitated largely by the passing of this Bill. As such I am not objecting to it, but in normal times I do not think it fair or right that an officer should be free to leave one local authority and pass on to another against the express wish of the body he was serving under, and still carry pension rights. I think it was going very far to carry it to that point, as embodied in that section. It is, in my opinion, utterly wrong. I explained when I first rose to speak that this officer was leaving the service of the local authority for his own benefit and advantage, and that the least he might do, that being the case, was to abandon his pension rights.
I put the converse of the case, that the State had gained an asset, that it had taken a man with some special qualifications, and that the least they might do is to pay for those qualifications in a befitting manner, because they were inflicting a wrong on the local authority in depriving it of the efficient services of a competent official. If one is to answer the Minister point by point, even when this man gets transferred to a post in the Civil Service, the fact remains that that man has got his training for the post during his time under the local authority. As a matter of fact, you can very justly say that his service with the local authority made him the man that the Ministry desired to take into the Civil Service. I think that neither in justice nor in equity ought this principle be admitted. It is unfair to the rate-payers, and I ask the Dáil to resist this as far as possible.
Mr. BURKE: I cannot see the force of Deputy Connor Hogan's argument in this case at all. He seems to be opposed to the whole general principle of the promotion of officers of local authorities. I think it is very good thing, in fact one of the best things in the  whole superannuation code that we have in the Bill; that it is possible to give promotion in the way suggested here, and in a previous section, from one local authority to the other. It is a very good thing for the officers themselves and a very good thing for the local authorities.
Mr. BURKE: One of the difficulties at the present time in the local services is that once a man gets a job, he lies there and takes no further interest in trying to improve or fit himself for a higher position. It applies to all the officers of a local authority and even to the medical officers. When they get into a dispensary district, there is no prospect of promotion, and they lie there, and take no further interest in developing their capabilities. This provision would be an incentive to such officers to improve themselves, and to attain a higher standard of proficiency in their particular departments. From another point of view, it is absolutely essential that we should have power to take over officers of conspicuous ability, such as medical officers, surveyors and people of that kind.
There is no better way in which men would acquire practical experience than under a local authority. If we have not the power to call upon such bodies for the assistance of experienced officers, it would be impossible to recruit our Civil Service in some Departments from more suitable men. Accordingly I urge Deputy Hogan to withdraw his objection to this section. I think Deputy Johnson has dealt fairly with Deputy Good's objection. With regard to Deputy Osmond Esmonde's suggestions, I will consider them now and on Report, and hope to meet his wishes in that respect. I am afraid I cannot accede to the desire of Deputy Mrs. Collins-O'Driscoll and Deputy O'Connell with regard to including officers who were absorbed into the Civil Service before the Free State was established. The effect of that would be that it would be an additional charge on the Central Fund, and I could not do that without getting the consent of the Minister for Finance.
Professor THRIFT: If the Minister approves of such changes as he has said from the local authorities to the Civil Service, I take it he is desirous of encouraging them. Is it not the case that this section would discourage them in the future? The Bill refers to cases where persons are, or have been, appointed, but it says nothing about the future. It says that if the allowance is not made within three months of the passing of this Act they cannot get this allowance. That is to say, if a person does not make a change within three months after the passing of the Act, he could not come within the provisions of the Act at all. Is that correct or is it not?
Mr. BURKE: This proviso about three months after the passing of this Act not only applies to officers who have been already appointed; but it is intended to apply also to officers in the future. Sub-section (1) is intended to do so.
Mr. GOOD: What is the position of the officer who resigned his position with the local authority and joined the Civil Service after the passing of this Act? As far as I understand it, the local authority will be then in a difficulty if he has less than twenty years' service.
Mr. GOOD: I think the Minister ought re-cast the whole of this section and put on the face of it what is his intention. It appears to me that every section of the Dáil is reading this clause differently, and the Minister is reading it differently to the whole lot.
Mr. BURKE: I think the word “thereupon” covers the point that was raised there some time ago. “Thereupon resigns,” or “resigns such office” covers the case of officers who resigned or will resign in the future.
Mr. BURKE: I do not think that legal sections as a general rule are clear from the layman's point of view. It is very hard to satisfy the legal draftsman, and, at the same time, satisfy the layman. As the section stand I am quite satisfied that it does what it sets out to do in that respect, and I do not think I could undertake to give it some literary form that would make it more palatable from the layman's point of view.
Mr. BURKE: On that particular point there is a weakness in the section, and Deputy Johnson has raised it already. I have agreed to amend it. It will only apply in the cases where an officer has ten years' service. That will get over the difficulty.
Mr. GOOD: As Deputy Thrift has pointed out, the Minister is placing a difficulty in the way of a man transferring from one service to another, except he has ten years' service with the local authority. The Minister is defeating his own object.
Professor THRIFT: Supposing a man is transferred in June, 1925, and he does not get a pension until 1936, will he come under this clause in any way? The argument may be put forward that in 1936 it can be said that it was after the 6th December, 1922. Does the word “was” refer to the time precedent to the passing of the Bill?
Mr. BURKE: If he is transferred in 1925, at the moment of his transfer his pension will be fixed by the local authority; but the pension will not run until he has passed out of the service of the Civil Service.
Mr. JOHNSON: Perhaps if Deputy Thrift would read Section 37, sub-section (1), he would see that “on his resigning or otherwise ceasing to hold his office, an annual allowance for his life not greater than two-thirds of his yearly salary and emoluments” may be paid.
Mr. JOHNSON: That is the sanction that Deputy Thrift is looking for. This part of the Act giving pensions is to apply to those persons who have been taken into the Civil Service from a local authority.
Professor THRIFT: I think I am trespassing on the patience of the House, and for doing so I apologise. I do not think we can consider this section is covered by a preceding section about the right to make pensionable allowances on resignation. This refers to the making of an allowance, the payment  of which is to date from some future date when the officer actually retires from employment. I do not think the two cases overlap. I think they are meant to cover different instances altogether. I would be quite satisfied if the Minister will say he will consider it.
(2) No allowance granted under this Part of this Act shall be capable of being taken in execution or otherwise alienated by process of law for the payment of any debts or liabilities of the person to whom such allowance was granted.
Mr. HEFFERNAN: I beg to move: “To delete Sub-section (2).” The idea is that I cannot understand why special provision should be made to protect the pensions of officers who are retired under this Bill. I know no reason why their pensions should be specially protected. I know of no other class of people who are protected. The only comparison which bears on this matter, that I can recollect, was in the old days when the Highland Regiment used to go into towns, and their pipe or drum-major used to notify inhabitants that if they gave credit exceeding 1/-, they would not be paid. It seems that under this Bill if traders give credit, even to the extent of 1/-, they cannot have any claim against the pensions of those officers.
Mr. BURKE: This is a sub-section in conformity with a long-standing principle which provides that the pensions of Civil Servants and officers of local authorities cannot be taken away from them or made liable for debts. It is in order to keep up the standard of the Service and prevent those persons from  being thrown on the charge of the public. It is not a very important point, and if the Deputy insists, I am willing to have the section deleted.
Mr. CONNOR HOGAN: I desire to support Deputy Heffernan on this amendment. The Minister's contention is that it is a rather long-established principle, but surely he has forgotten that principles even have changed very much in recent years, and even the tenure and conditions of employment have altered radically. I want to insist at first that I do not follow the analogy between the Civil Service and local authorities. I do not see anything whatever between them.
In the old days an officer in the Civil Service, after a certain number of years of good and faithful service, received a pension. The underlying principle behind that at the time was that it was only just the State should, in recognition of his services, give him some recompense in his declining years. There was no obligation really on the State; it was an act of grace; it arose through the benevolence of the State for its aged servants. This principle afterwards was radically altered. Civil Servants gave a contribution towards their pensions and, in other words, they got more or less a vested right to their pensions; it was part of their property. The position was radically changed in this manner. I am not so much quarrelling with the argument that the Government should not be held liable for the debts of its servants; I am not quarrelling with that.
Mr. CONNOR HOGAN: It does come in quite well. Take the case of a trader to whom a civil servant owes money. I am not questioning that it is rather a good thing that the trader should not have the right, by process of law, to distrain part of the pension. At the same time, it is hardly fair to have the State drawn so largely into the private concerns of people. But it is not a fair thing, though, to admit in regard to local authorities.
I am just wondering, with all the penal legislation of the last two years,  how the Minister or anyone can justify this. I am not very long in the Dáil, but I remember an Act going through early in Spring, called the Enforcement of Law (Occasional Powers) Act. The Minister, and the State, took drastic powers to enforce people to pay their debts, even to the extent of having them put in jail. In the Finance Act of 1923 the Minister took powers—or, rather, the Revenue Commissioners did, to compel employers of individuals who owed income-tax to pay up the arrears.
Mr. CONNOR HOGAN: I want to support the amendment. I do not think it is a right thing, seeing that pensions represent to-day only deferred salaries, that the local authorities should be allowed, or that the State should grant them permission, to protect those people and not let them be made amenable to the process of law.
Mr. JOHNSON: The Minister has told us this is a long-established principle, and it is on that account that I am inclined to oppose the amendment. I desire to see the position of Civil  Servants who served the State, and servants who serve local authorities, approximate one to the other. The idea of developing servants of local authorities in the direction of Civil Servants is one which most Deputies have given support to in the past—that there shall be a general Civil Service affecting local authorities as well as the national authority. I want the law relating to pensions, examinations and tests, to be the same in the one case as in the other. If it is correct, as the Minister says—and I am sure it is— that the provisions of this sub-section are identical with the provisions applying to State servants' pensions, then we should maintain the same position until they are all altered, if they are to be altered. It is on that account alone that I am prepared to support the proposals of the Minister in sub-section (2).
Major COOPER: I gather that the Minister stated that this provision applies to Civil Servants generally. Does it also apply to army pensions? I cannot remember any provisions in either of the Army Pension Acts we passed dealing with that.
Mr. HEFFERNAN: My idea is that this is simply a question of what is right or wrong. Why should one class of people be protected rather than another? On the matter of procedure, I do not know whether the Minister should withdraw the sub-section or I should press my amendment. Probably the best procedure is that the Minister should accept the amendment. Amendment put.
Pádraig F. Baxter.
Seoirse de Bhulbh.
Séamus de Búrca.
John J. Cole.
Bryan R. Cooper.
Sir James Craig.
Máighréad Ní Choileáin Bean Uí Dhrisceóil.
Osmond Grattan Esmonde.
Pádraig Mac Fadáin.
Eoin Mac Néill.
|Liam Mac Sioghaird.
Patrick J. Mulvany.
John T. Nolan.
Michael K. Noonan.
Seán O Bruadair.
Séamus N. O Dóláin.
Tadhg O Donnabháin.
Eamon O Dúgáin. Micheál O hIfearnáin.
Aindriú O Láimhín.
Séamus O Leadáin.
Fionán O Loingsigh.
Domhnall O Mócháin.
Séamus O Murchadha.
Seán O Súilleabháin.
Tomás Mac Eoin.
Risteard Mac Fheorais.
Tomás de Nógla.
Tomás O Conaill.
|Aodh O Cúlacháin.
Liam O Dáimhín.
Eamon O Dubhghaill.
Domhnall O Muirgheasa.
Tadhg O Murchadha.
Pádraig O hOgáin (An Clár).
Amendment declared carried.
Question—“That Section 45, as amended, stand part of the Bill”—put and agreed to.
Whenever, under the provisions of any public or local Act, a local body is empowered to grant to any of its employees, other than officers, an allowance in respect of the loss of his employment, Section 35, sub-sections (1) and (2) of Section 37, Sections 38, 41, 42, 43 and 45 of this Act shall be substituted for such provisions, and shall apply to the granting of such allowances, and to such allowances when granted with the following modifications, that is to say:—
(a) in such application the words “office” and “officer” shall include “employment” and “employee” respectively, and the word “salary” shall include “wages;”
(b) in calculating an employee's service only the continuous service of such employee under such local body at the date of the loss of such employment shall be reckoned;
(c) no allowance shall be granted to an employee under this section whose service is less than the period of service required by such public or local Act as a condition of his being granted an allowance thereunder.
Mr. MORRISSEY: I move: “To delete the section.” The section is a very objectionable one. It does not give a pension to anybody who is not entitled to it at present. As a matter of fact, it provides that no local authority can give a better pension than the Bill provides, even though the local authority has at present the power and the will to do so. The section does not even provide as good a pension as the Bill gives to officers, because paragraph (b) prohibits the reckoning of service under two local authorities. I would suggest to the Minister that, even if this Bill is not going to deal generally with the superannuation of employees, it ought not to go out of its way to penalise those who are already entitled to superannuation. What I would like to know from the Minister in regard to this section is, will it supersede the provisions of the Pauper Lunacy Act  of 1890, or the Asylum Officers' Superannuation Act of 1909? Both of these Acts deal with the pensions of such officers. The section is certainly an objectionable one, as it takes away some of the existing rights of certain employees with regard to pensions.
Mr. BURKE: I do not think Deputy Morrissey is quite accurate in his interpretation of this section. I expect that when I say I have got any good thing for Deputies on the opposing Benches, they will be very sceptical. They look upon it as Timeo Danaos dona ferentes. In this particular case I have considerably improved the position. The only Act dealing with employees of local authorities at the present time is the Dublin Corporation Act of 1905. Under that Act these employees can only get pensions in the case of old age or infirmity. If their offices are abolished or their services dispensed with for any reason, they cannot get any pensions. That is not a good position from the point of view of the employee or employer.
It would be much better for both points of view that the men can be pensioned when it is found necessary to dispense with those services. This Section 37 will apply to those employees. If Deputies will read Sub-sections (a), (b) and (c) they will see it gives these employees a much better status than they have at the present time. Sub-section (2) gives three additional reasons for pensioning these officials and for that reason alone, I think Deputy Morrissey ought to be favourably disposed to this section.
It also improves the position of these officials in another respect. At the present time they have no claim to receive pensions. The local authorities may give them pensions or not, and they have no redress if the local authority refuses to give them pensions, but they can, under the provisions of this Bill, apply to the Minister if they are not treated fairly by the local authority and that gives them an additional safeguard, and for these reasons I think the Deputy ought to allow the section to go through. I think the whole Bill  effects a great improvement in the position of the employees.
Mr. MORRISSEY: Can the Minister explain as regards Sub-section (b); that the sub-section states that in calculating an employee's service, only the continuous service of such employee under such local body at the date of the loss of such employment shall be reckoned. What we are dealing with under the previous sub-section of the Bill was in regard to officers. I should like if the Minister would answer the question I put to him, whether this section would supersede the provisions of the Pauper Lunacy Act of 1890, or the Asylum Officers' Superannuation Act of 1909.
Mr. BURKE: No, these Acts are general and not local Acts at all.
Mr. MORRISSEY: I take it that the section will not supersede them.
Mr. BURKE: No.
Mr. JOHNSON: I think we may take it from the Minister's answer that it is intended under this section that the employees of the Dublin Corporation, which I understand from the Minister, is the only body that has a special Act, shall exchange for their present Act compulsorily certain possible rights on attaining old age, for lesser rates with a wider range of possible pensions. It may be good for the younger employees if the Minister's explanation is complete, but it is not going to be satisfactory to the older employees who have been serving that public body under a certain Act and arising out of that Act had certain expectations which are, in fact, contractual. If we pass this section it practically tells these older employees that the expectation which they have been entitled to look forward to under statute is no longer justified, and that we are reducing for the older servants their possible amount of superannuation, and in exchange for that we are offering to a larger number of younger servants the possibilities of pensions.
That may be very satisfactory to the younger servants, but we should not enlarge the range for the younger men at the price of reducing the pensions  of the older men, and that appears to be the intention of the Minister, judging by his explanation. Now, sub-section (b) speaks of “continuous service.” I do not know what the provisions of the existing local Act may be in that respect. “Continuous service” in the case of weekly wage earners may be broken by one week's absence. I think that is rather risky. I think it is not reasonable in the case of weekly wage earning employees to deprive them of pension rights by a break of a week's service. On these two grounds I think that the section should not be passed. I do not believe it is desirable to enlarge the range for the younger men at the cost of the older men's pensions, and I do not believe it is right to deprive old men of rights by virtue of a break of service which might only be a week's break.
Mr. BURKE: With regard to the point raised by Deputy Johnson, I think he is under some misapprehension. There is no change in the scale of pensions that can be paid to these officers under this Bill and the Dublin Corporation Act. They can be paid up to two-thirds under this as well as under the Corporation Act, and with regard to the point as to a break in service, that obtains at the present time. At the time of the Tailteann Games, when we had the Dublin Corporation strike, these officers forfeited their service, and it was one of the points of settlement that the Commissioners should waive their rights to this particular matter on the condition that the men went back to work. They will be in no worse position under this section than they are in the present time. Any break of service will deprive them of their right of pension both now and under this section.
Mr. JOHNSON: In view of the statement the Minister has made, will he be willing, if further opportunity offers. to allow the powers in this section to be extended to all local authorities?
Mr. BURKE: I am not prepared to concede that, but this section in the Act would make it easier at a future date.
Amendment put and negatived.
 Question—“That Section 46 stand part of the Bill”—put and agreed to.
Section 47 was agreed to and added to the Bill.
Every person who at the date of the abolition of a committee of a county infirmary or a county fever hospital (whether before or after the passing of this Act) under or in pursuance of Section 7 of the Local Government (Temporary Provisions) Act, 1923, was or shall have been an officer of that committee, and, except in the case of a medical officer, devoted the whole of his time to the service of the committee, if his period of service under such committee was, or shall have been, not less than ten years, shall have the same rights to receive an allowance from the county or county borough council or councils to which or to a committee of which the functions of the committee aforesaid have been transferred on its abolition as he would have under this Act if he were a pensionable officer of a committee or joint committee of the said council or councils and had held office thereunder for a period equal to his period of service under the committee aforesaid, and had been removed from such office for a cause other than misconduct or incapacity.
Amendments 77 and 77 (a) not moved.
Question proposed—“That Section 48 stand part of the Bill.”
Sir JAMES CRAIG: I raised a small matter when discussing a previous section in this Bill, namely, the position of medical officers who served under the old county infirmary committees and who have since been transferred to the new committees under the amalgamation schemes carried out in most counties. The officers in question are quite satisfied that this section does not deal sufficiently clearly with the question of their pensions. I would ask the Minister to look at line 32 in the section, where there is a reference to pensionable officers. I desire to ask him whether it is a fact that these men were pensionable officers under their old  positions as surgeons to the county infirmary?
Mr. BURKE: No.
Sir JAMES CRAIG: Then, they were not entitled to pensions?
Mr. BURKE: No.
Sir JAMES CRAIG: Therefore, on their transference to the new body there is nothing in this section that would make them pensionable officers. There is nothing definite in this section with regard to the giving of pensions to these very deserving men. There is one man in my mind at the moment who has served for 30 or 40 years in the county hospital of a very large county. I think it is only fair that the interests of these men should be looked after. The Minister has now stated that these officers are not pensionable in respect of their old service. I think they ought to be brought in under this Bill, and that it should be clearly stated that they will now receive pensions.
Mr. HEWAT: I presume that these officers were not whole-time officers. If Deputy Sir James Craig is getting at the principle that anybody but whole-time officers should get a pension, then that is a much bigger question than a local one of this sort.
Sir JAMES CRAIG: The question has been debated for a very long time that dispensary doctors are not whole-time officers. In one sense they are, because they are liable to service during the whole of the twenty-four hours. At the same time, of course, they are able to do work other than their dispensary work. Indeed, they would not be able to live if they were not entitled to do that other work. They are regarded as pensionable officers, as you will find from references in many parts of the Bill. There is a distinction, however, made in regard to the medical officers who served under the old county infirmary committees, and it is on that matter that I would like to hear from the Minister.
Mr. BAXTER: I am, perhaps, in a greater difficulty on this matter than  Deputy Sir James Craig, because of the situation that exists in my county, a situation that I think the Minister is cognizant of, as I have discussed it with him in company with my colleague, Deputy Cole. We had an infirmary in the county I represent. The officers in it ceased work, and were given a pension. There were three of them to be considered. They were all fairly old men, two of them, I imagine, being up to 70 years of age. When the county infirmary there ceased to exist as an institution, these men were without work and without means, and the result was that representations were made to myself and to Deputy Cole. Pensions were ordered to be paid to them, but, of course, sanction had to be obtained from the Ministry for the payment of the pensions. We made efforts to have these payments made legal. It was not possible at the time, legally, to pay the pensions, but in discussions that we had with the Ministry we were given to understand that legislation would be introduced which would make that possible. On assurances from Deputy Cole and myself, the Committee of the County Board of Health have paid the pensions to these men. As the pensions have been paid, if the right to pay is not covered by this section, I am afraid that the County Board of Health, as well as Deputy Cole and myself, will find ourselves in a more difficult position than we are at present.
I am afraid that this section does not cover two of the three officers that I have been referring to. One of them, the medical officer, might perhaps claim to be a real whole-time officer, inasmuch as he resided within the grounds of the infirmary, but he was in such a position that he was able to attend outside cases. I take it, however, that he was expected to attend all the cases that came into the infirmary, and in that sense might be regarded as a whole-time officer. It is not clear under this section what his position is. One person might take it that inasmuch as he had liberty to attend outside cases, he could hardly claim to be a whole-time officer, and, therefore, not entitled to a pension. The other officer was the egistrar. I might say that part of the pension has  been paid to these three officers on assurances given by Deputy Cole and myself, assurances which in turn were received by us from the Minister for Local Government and the Minister for Finance, who was then an ex-Minister for Local Government. I do not know whether it was the intention that officers such as these were to come within the scope of the Bill. If it was the intention that they were to come within the scope of this Bill, then I do not think that their position is covered by the section as it stands, and I think that from our point of view the section will require some amendment. I hope that the Minister will look on this section in the light of the representations that we made to him and that he will alter it in such a way as to make it meet the situation that he knows to exist in our constituency.
Mr. COLE: I desire to join with Deputy Baxter in this matter. It is a fact that both of us discussed these cases, to which Deputy Baxter referred, at great length and on several occasions with the Minister for Local Government and the Minister for Finance. They gave us a kind of an understanding—a promise, I might say — that there was a clause in some Bill under which they intended to pension these officers. The Minister for Finance gave us some reason as to why this clause was by accident thrown out. At the same time, they individually gave us promises, promises which we in turn gave to the local body, to the effect that a short Bill would be brought in to give to these officers the pensions they were entitled to. It is a fact which the Minister will admit, and which he would do well to consider, that if the old committee had remained in office, all those three officers would have been pensioned. I think it is a debatable point whether this register, of whom we are speaking at the present time, and the medical officers, are not whole-time officers.
The registrar was at the beck and call of the committee at any time they wanted him. It was not that he was there at certain hours after his working day was over but he was there when  he was wanted. As a rule, the committee held their meetings at mid-day and continued them late into the day. He was there at any time he was required and, consequently, I would say he was a whole-time officer. True, he had another appointment, owing to the meagre salary offered to him by the committee, and possibly he accepted that with the idea of getting a pension. If the old committee had remained in office, there is no doubt he would get a pension. Owing to a promise he got from the Minister, Deputy Baxter and I joined in giving a guarantee that those pensions would be granted, and I believe they were paid on that promise. I also rely on the Minister's statement of last week when he said that at present, discretion is left with the local authority if they decide that an officer gave adequate service at any time they required his services. In granting this pension, the Minister will not be setting up a precedent to another institution of a similar kind. There is only one other institution of a similar kind and, consequently, I would press this on the Minister.
Mr. BURKE: With regard to Deputy Sir James Craig's suggestion, it is really amply covered in Section 48, which says “every person who was or shall have been an officer of that committee, and except in the case of a medical officer who (medical officer includes surgeon) devoted the whole of his time to the service of the committee—” It is not necessary for a medical officer to be a whole-time officer, but it is for every other officer.
With regard to Deputy Baxter and Deputy Cole's suggestion, if those officers are whole-time officers, they will come under this section automatically and there is no necessity to introduce any new amendment to cover their cases. If they are not whole-time officers, I cannot agree to make any further changes in the Bill. Deputy Cole and Deputy Baxter are probably aware as to whether they are whole-time officers or not. If it is true that payments have been made in respect of a pension to those officers and if they turn out not to be whole-time, the furthest we can go is to remit the surcharge,  but we cannot undertake to include any other class of officer who is not whole-time for pensionable rights. If they are whole-time officers there is no necessity to include anything further in the section.
Sir JAMES CRAIG: The Minister has not quite cleared up the point made by me. Of course, it is quite clear that a medical officer would be entitled to a pension simply as a part-time officer if he had 10 years' service, but I think the whole point is whether he was a pensionable officer of a committee or of a joint committee. The question is whether he was a pensionable officer under the old committee of the county infirmary. If he were, then I am perfectly satisfied that the section is clear, but that is the point. The Minister said he was not a pensionable officer and, therefore, I am afraid there is no provision in this that would entitle the committee to give him a pension. Would the Minister be good enough to clear up that point?
Mr. BURKE: I do not think that point about whether he was a pensionable officer or not has anything to do with it. The section says:—
“Every person who at the date of the abolition of a committee of a county infirmary or a county fever hospital was or shall have been an officer of that committee.”
It does not say “pensionable officer.” The section continues:—
“Except in the case of a medical officer, devoted the whole of his time to the service of the committee.”
It does not say anything about pensionable officer. It continues:—
“Shall have the same rights to receive an allowance... as if he were a pensionable officer.”
In line 33, his case is clearly stated. Before you come to that, however, the section reads:—
“Every person who, at the date of the abolition of a committee of a county infirmary or a county fever hospital (whether before or after the passing of this Act) under or in pursuance of Section 7 of the Local Government (Temporary Provisions) Act, 1923, was, or shall have been an  officer of that committee, and, except in the case of a medical officer, devoted the whole of his time to the service of the Committee, if his period of service under such committee was, or shall have been, not less than ten years, shall have the same rights to receive an allowance from the county or county borough council or councils, to which, or to a committee of which, the functions of the committee aforesaid have been transferred on its abolition, as he would have under this Act if he were a pensionable officer of a committee.”
“Pensionable officer” has reference only to this Bill. It does not refer to his status previous to the passing of this Bill.
Sir JAMES CRAIG: The Minister has stated he is satisfied with regard to this. I am not quite sure on the matter. I would like him to insert, in line 35, the word “transferred”—“and had been transferred or removed from such office for a cause other than misconduct or incapacity.” That would provide for the transference of these men from the county infirmary boards to the health boards.
Mr. BURKE: It is difficult to insert a word of that kind because this section is governed by previous sections and, perhaps, by subsequent sections, and every word of that kind is construed and has a particular interpretation put upon it by legal men. I think it is better to leave the section as it stands.
Sir JAMES CRAIG: I recognise clearly that it is a terrible thing when you begin to cut up a sentence of sixteen lines. Whenever you get into these sentences, with one clause depending on another, with only a single predicate, you do not know where you are going to end. That is the trouble with the sixteen-line sentence. It is quite Gladstonian.
Mr. BAXTER: As we understand the section now, it means that two of those officials are eligible for pension and the third is not. As far as I understand, the third to whom I make reference can hardly be termed a whole-time official, but he was doing—in so far as the work entrusted to his  charge was concerned—his share of the work of the infirmary just as much as the other two officials were. That is a rather strange position for an individual to find himself in, and it is a rather strange position for a country board of health to find itself in—that it will be able to pension off two officials and that a third official, whose pension would come to something like £20, cannot be pensioned off. The position is rendered more peculiar when you consider that portion of that pension has been already paid. I would urge the Minister to reconsider this. I think it is unjust. I am not very enthusiastic about paying pensions, but it is the opinion of the county board of health that this man ought to receive a pension. They have already paid part of that pension, and we have given them a fairly definite assurance that legislation would cover that case. I would urge the Minister to consider if he could not make some alteration in the section which would enable the county board of health to pay this pension.
Mr. HEWAT: From what we have heard from Deputy Baxter and Deputy Cole, we regard with a considerable amount of sympathy the claim they make for a pension for this particular officer. I am sure that the Local Government Department will not put any obstacles in the way. On the other hand, a clause to make it obligatory to pay pensions to part-time officers would raise very serious controversy in this House. I would strenuously resist the introduction of any such clause. In effect, it would be very far-reaching and lead to very undesirable results in many ways. In this particular case, it might be a hardship not to give a pension to a man who has served the committee for many years and who, to all intents and purposes, was a whole-time officer, inasmuch as he discharged all the duties entrusted to him. But Deputy Baxter will see that the introduction of any alteration in this clause on these lines would certainly be very undesirable. I think the Minister has dealt with this case very sympathetically and the Deputy, I think, ought to leave it at that.
Mr. BAXTER: In reply to Deputy Hewat, neither Deputy Cole nor myself is very keen about throwing out the ratepayers' money in pensions. There is no necessity to assure the Minister or the House of that. But certain action was taken by us, and we took this step, not merely out of sympathy, but out of a sense of justice. We are not alone representing our own view, but we are representing the fairly general view of the ratepayers. There is hardly any body of opinion against the decision of the county board of health. I am not sure that under the old committee this official might not have been entitled to a pension, and when you consider that portion of the pension has already been paid, and that this man's two colleagues in that institution are getting pensions which are sanctioned under this Bill, his position is rather peculiar, and it is a position that can hardly be justified.
Mr. HEWAT: Does the Deputy understand that this clause does not put this man or any other man in a more detrimental position than he was in before. All the old committee could have done in his case, the new committee can do equally well.
Mr. BURKE: I realise that this may be a case of hardship, as Deputy Baxter has said, but you cannot legislate for particular cases. It is a well-known maxim that odd cases make bad law. Laws are drafted to meet general difficulties and not to deal with particular situations. If we tried to pass legislation to cover odd cases of hardship, it would mean that the Dáil would have a very busy, time and that, perhaps, legislation of much more importance would have to be neglected. I could not insert a proviso to cover this particular case without departing from the principle I laid down when entering on discussion of this part of the Bill— that I was not going to permit any new class of officers to be made pensionable. I think Deputy Baxter supported me in that attitude. Insistence on that principle is going to mean hardship for individuals in various counties. If we all come here and voice the grievances of the particular people whom this Act happens to affect  adversely in our counties, it will mean that the principle will not be put into force at all. Deputy Baxter stands up for the officials who are treated harshly under this Act in County Cavan. I might try to sneak something into the Bill to cover cases of hardship in Tipperary, and Deputy Hewat might have something to say about similar cases in County Dublin. We would never reach finality if we tried to legislate for particular cases in this way. If an officer is not a whole-time officer, there is no remedy for his case. If, through any misunderstanding, part of his pension has been paid, we may be able to deal with that matter in an administrative capacity, but we cannot agree to legislate for it.
Sir JAMES CRAIG: I am sorry to be persistent, but will the Minister say that, in his opinion, the medical officers transferred from the county infirmaries to the home hospitals are entitled to pension? If he says “yes,” I will support the clause. If he says “no,” I will have to vote against it.
Mr. BURKE: I say, most emphatically, “yes.”
Question put:—“That Section 48 stand part of the Bill.”
Motion declared carried.
(Compensation for loss of emoluments on transfer of duties.)
Amendment 78 not moved.
Mr. BURKE: This section is inserted to cover the cases of certain officers whose position was adversely affected as a result of irregularities in the coming into operation of county schemes. County schemes came into operation at different times, and the result is that you had two classes of cases of hardship to officers of local authorities. One class of case was, more or less, the converse of the other. In one class of case you had officers who were pensioned after the abolition of the unions. When their offices were abolished, they continued to perform certain subsidiary duties, and they were informed that if those subsidiary duties  were at a future date to be taken from them, their emoluments in connection with these offices would be taken into consideration in fixing their pensions. This section is designed to cover that class of case. Then you have the opposite case. In some counties the county schemes did not come into operation for a considerable time after they came into operation in other counties. Accordingly, you had officers of unions carrying out their main duties after the various subsidiary duties had been taken from them. The result was that they were pensioned for the main services they performed, and their emoluments in connection with services they had previously performed could not be taken into consideration. In equity, it is necessary that those men should be pensioned for the emoluments which they received for services which were taken from them before the actual date at which their offices were abolished. Those are the two classes of cases that this section is intended to cover.
Mr. HEWAT: Is that quite sound? I do not want to raise a contentious matter, but in a case of the kind a man is appointed to a certain office, and in connection with that office he is asked to perform certain services for which he gets emoluments. In considering the pension is it necessary or right that services subsidiary to the main services should be taken into consideration in connection with his pension? After all, I take it that during the time of his service, say, as a clerk, or in any particular capacity, it might be necessary to put him on a certain temporary service, or permanent service, as the case may be, and to pay him a certain sum for the performance of that work. But to take these emoluments and make them pensionable it seems to me might possibly lead to rather excessive amounts being paid in pensions. When the man was appointed to his position one recognises an obligation for the permanence of that appointment until such time as he arrives at a period when he can retire. But surely it is rather much to ask us to lay down as an accepted and definite principle that if at any time you get him to discharge duties other than those for which he was appointed, temporarily  or permanently, that anything you pay him for them shall be treated as if such payment were part of his income, for pension purposes? I rather take exception to the broadness of that. There are certain things, of course, that go with a permanent appointment and are really looked on as part and parcel of that employment, but I do think that there are other things which attach to the office that ought not peremptorily to be made pensionable, and I, at all events, would like to raise the question as to the whole operation of that provision.
Mr. BURKE: This section does not confer any additional pensionable rights on officers. Those emoluments in respect of which they will get these pensions have always been pensionable. The only reason why we could not grant them pensions was that they were taken from them on the date on which they were pensioned, as the result of the irregular coming into operation of the county schemes. If there had been an appointed date for the coming into operation of these schemes throughout Ireland, and if all their duties were taken from them at that particular time it would not be necessary to have this section at all, because automatically they would be getting pensions on their service. But owing to the different times at which the schemes came into operation in some cases the subsidiary services were taken from them before the main services, and in other cases the main services before the subsidiary services, and the result was that when they were pensioned on their main services their subsidiary services could not be taken into consideration. This is to enable us to get over that difficulty. But all these officers have an equitable claim for pensions on these services. They have a legal claim to-day except for the fact that they were not performing these services at the moment when their offices were abolished. That is the only reason why this section comes into operation. If their offices had never been abolished in the ordinary way these emoluments would have been pensionable emoluments.
Mr. HEWAT: I am quite satisfied, as far as it goes, with the explanation of the Minister, but it raised in my mind considerable doubt as to the extent to which that provision could be put into operation. For instance, supposing an officer were appointed a collector of rates with a remuneration based on poundage. Would that fortify him in a position in which he is entitled to get a pension, or anything of that kind that is of a temporary nature that may be attached to his office? I take it the Minister's reply is that this does not alter anything that is in existence, and all I ask him for is enlightenment on what is in operation and how far does the present obligation go.
Mr. CONNOR HOGAN: What are these duties provided for in the section that these men are performing? I would like the Minister to illustrate that and let us know something definite and concrete.
Mr. BURKE: Most of these duties were in connection with the compilation of registers and jurors' lists. I am afraid that to answer Deputy Hewat's question I would want to spend about two days in preparation, and it would take me about an hour to deliver it here.
Mr. HEWAT: Does the Minister mean that no regulations are laid down as to what is pensionable or otherwise?
Mr. BURKE: There are too many rules and regulations. I would want to read through three volumes of Vanston, comprising, I suppose, 2,000 pages, before I could get the substance to provide an answer.
Mr. HEWAT: I would not like to tax the Minister's time to do all that for my information.
Question:—“That Section 49 stand part of the Bill”—put and agreed to.
(1) Sub-section (1) of Section 3 of the Local Government (Ireland) Act, 1898, shall cease to have effect from and after the election of county  councillors held next after the passing of this Act.
(2) At any triennial election of members of a county council held after the passing of this Act, the number of members to be elected to the county council shall be increased by a number equal to twice the number of rural districts in existence in such county on the appointed day.
Professor THRIFT: I move:—
To insert before Section 50 a new section as follows:—
“The following provisions shall apply with respect to the superannuation of officers of district lunatic asylums:—
(a) Section 16 of the Asylum Officers' Superannuation Act, 1909, shall be amended by substituting three years for ten years as the period for calculating the average salary and emoluments of an established officer for the purposes of that Act;
(b) A superannuation allowance granted to an officer under the provisions of the Pauper Lunatic Asylums Superannuation Act, 1890, shall not exceed the amount of the superannuation allowance to which he would have become entitled on his retirement if he had not signified in writing to the Asylum Committee his intention under Section 20 of the Asylums Officers' Superannuation Act, 1909, not to take advantage of the provisions of that Act.”
I would like to ask the House to agree to take this amendment in two parts. The two parts are connected, but not closely connected, and might be dealt with separately. What is put forward as (a) may be really treated quite separately from what is put forward as (b). All of what the Minister has just said might be applied to this amendment (a), and I think that the officers to whom he has referred are open to the very same remark as officers of lunatic asylums; the very same thing might be said about them, perhaps with even greater force. The position of these officers with regard to pensions is principally ruled by two  Acts of Parliament of 1890 and 1909, and I think that when the Minister was dealing in Section 49 with certain cases he should also, for consistency sake, have dealt with the case of these district lunatic asylums; I think it certainly follows, for reasons of consistency, that the principle that he adopted in his own Bill ought to be applied to the case of these officers through the whole of this Bill. In Section 35 of this Bill you will see the expression “yearly salary and emoluments” is taken as meaning an average carried over a period of the preceding three years.
In Section 49 the very same principle, the average of three years, is applied. Section 16 of the Act of 1909 to which I have referred specifically includes all apartments, rations, and other allowances, and says that their money value is to be estimated by taking an average over ten years' service. That may have been very right and proper at that time, but I do not think that we could say that an estimate taken over the past ten years of the money value of these things would give us any real or just estimate of the money value that they would have at the present day or are likely to have for a considerable time to come. I suggest that an estimate formed over ten years would not be a fair estimate to take of the part of the salary which is really being derived in this way. The Minister himself, I think, has admitted the principle, and has said he would get a much juster estimate by taking three years. He has said that in at least two places.
He may say in reply to me that prices may go down, and I am sure we all earnestly hope that they will, and if, therefore, this estimate of three years is taken it may be that the people who are pensioned in this manner will, after a few years, be getting a much higher pension than that to which they would have been justly entitled. If he does say that—perhaps I had better wait until he does—I would say in reply that he has himself done it in other cases, and therefore he ought to do it in justice in this case. If he does not accept that I would put up as a general principle that it is quite easy to frame a pension scale in  such a way that it would make allowances, and the pension may be allotted in two parts, one fixed, depending on salaries, and the other movable, depending on the scale of prices, and in that way he could arrive at a fair and just way in which pensions ought to be given in accordance with the terms of these Acts.
Mr. BURKE: Asylum officers are placed on a very different footing from other officers. They are pensionable on a contributory basis. They are the only class of officers who are pensionable on a contributory basis in the country at the moment, and there are certain peculiar conditions in respect of the superannuation of these officers which do not apply to other officers. All these different factors will have to be taken into consideration in coming to any definite conclusion on their position. To begin with, this contribution consists of three per cent. of an officer's salary. Secondly, certain officers, those who are in direct charge of lunatics, are permitted to retire at the age of 55, instead of 60, as is the case of other officials, and their pensions are calculated on a basis of fiftieths instead of sixtieths, on a ten years' basis.
It seems to me that all these factors hang together and have to be taken into consideration when we are considering any alteration of the position of these officials in regard to superannuation. At the present time these officials are in a very much better position than they were some years ago. Their salaries have been considerably increased and their hours of service have been considerably reduced, I think to the amount of one-third, and Deputy Thrift will realise that if we were to reduce the average from 10 years to 3 years it would mean a considerable increase in the pensions of these officers. It is very doubtful if such an increase could be given without also considering the question as to whether there should not be an increase in the three per cent.—as to whether it should not be increased to four or five per cent. on their salaries.
There is another point that would have to be considered. That is, the  point in regard to what class of officers are placed in the first division as being in direct charge of lunatics. At the present time in some asylums you have the Clerk of the Asylum classified as in the first division merely because a lunacy patient happens to be placed in his office for occupational treatment. That is a very wide extension of the classification of an officer being in direct charge of lunatics. That whole position would have to be revised if I were to agree to Deputy Thrift's amendment. It is a very complicated matter, and it cannot be dealt with by any haphazard or unconsidered legislation, and it is for that reason I have submitted the whole matter, dealing with lunacy as well as with home help, to a Commission which will be able to give the matter the consideration which a question of such very great importance deserves. Accordingly I would ask Deputy Thrift not to press his amendment in this Bill, which was not intended to deal with such matters at all.
Professor THRIFT: Of course I quite accept what the Minister has said in reference to certain special provisions dealing with lunacy officers. It is well known that their work is exceedingly unpleasant—one might say it is unhealthy work—and for that reason they are divided into first class and second class, but the particular section to which I have referred is not confined to officers of the first class. It says generally officers or servants, so that distinction does not arise, but what the Minister has said about his intention to deal with the matter in a broad way really satisfies me, and I would not, in view of his intention to submit the matter to a Commission, press the amendment, because I think that is the wiser way of dealing with the difficulties and injustices which really do exist. I fancy from what the Minister has said that he appreciates that point and that he is prepared to give it broader consideration at the proper time when it arises. I was waiting, before saying anything about Clause B, to see if any other Deputy had anything to say on Clause A. Apparently I have got the innings all to myself. I fully expected I should have amongst Deputies in the  House a host of supporters on this matter. Clause B refers to superannuation allowances granted under the Act of 1890—and perhaps I should remind Deputies, on mentioning this point, what this is.
It is a clause which empowers the giving of a pension to officers or servants not less than 15 years in the service and being not less than fifty years of age, such annuity in the way of superannuation as is thought proportionate to the merits and time of service of such officer or servant. The pension, therefore, in accordance with that Act is made entirely at the will, wish, and pleasure of those who are allotting the pension. That particular class of pension was a pension which might be given and which might not be given. If the Minister should accuse me of tending towards extravagance in this matter on the previous amendment I think he will say that on this amendment I am certainly tending against it. That was only a possibility of a pension. When the other Act of 1909 came into operation it secured the pension on the lines which the Minister has already indicated, a contributory basis and within certain limits. I understand it might easily arise in the future—and it is with the future alone my amendment proposes to deal— that a case might arise in which you would have persons receiving pensions on a non-contributory basis which were quite in excess of what they would receive if they were on a contributory basis just because when the 1909 Act came into force they did not exercise the option which they were entitled to exercise of securing pensions for themselves by coming under the 1909 Act. That does not seem to me just and reasonable. I do not think I can be charged with acting unjustly towards people under the 1890 Act, because under that Act they have no absolute security that they will get a pension of any magnitude. Under the other Act they have the certainty that they will get a pension of a certain kind. I dare say the Minister will give the same reply with reference to this clause as he gave with reference to the last, and if he does I will be satisfied that it is probably better to deal with the whole  thing together, but I do not think it is a reasonable thing to expect that pensions based on a non-contributory basis should exceed those based on a contributory basis, and that is the reason I put down this amendment.
Major COOPER: I think the reason Deputy Thrift has received such little support is obvious—that this is an extremely intricate and technical matter and that while I have been always opposed to legislation by reference, I think I must be equally opposed to amendment by reference. You could not understand that amendment without reading both of the Acts to which he refers. If I am right in my apprehension, the general principle is this— firstly that the provisions of Section 35 in this Bill, which we have already passed, saying that the salary and emoluments should be averaged over three years, should apply to asylum officers as well as to other officers, and when we are putting other people in the position of being able to count three years in the estimation of their salaries we should not continue asylum officers under the old Statute, to ten years. The second point is that asylum officers—if I am right in my apprehension of what the amendment means, and I may be wrong—have peculiarly onerous and unpleasant duties. There is some reason to think that insanity is—I do not say contagious is the right word—but that a man who lives in contact with lunatics is sometimes liable to be affected himself.
It is, I believe, an ascertained scientific fact that unless a man has a strong and well-balanced brain, if he spends all his days with lunatics, his brain is liable to become affected. These officials, therefore, should not be placed in a worse position than they are now in, and as they will remain in if the Bill stands as it is, while the position of other officials will be improved. If Deputy Thrift's desire is to advance their position, as well as that of the others, I think it is a very reasonable one, and I wish to support it.
Mr. JOHNSON: I am going to refer the Minister to his last reply, and ask that it shall be made applicable to the second part of Deputy Thrift's amendment.  If it is intended that there shall be a general inquiry into the administration of lunatic asylums, this question should be relegated to that inquiry. One added reason—and an important one—is that the effect of the acceptance of this amendment would be to reduce the prospective pensions of a number of officers in the Dublin County Asylums by as much as thirty-three per cent.—even greater than that—and if there is to be an inquiry, before one agrees to a section of this kind, which would bring such reduction about without inquiry, I ask the Dáil to agree with the Minister in this case and postpone consideration of the question to a later date.
Mr. GOREY: It strikes me that there is a slight irregularity with regard to this section. It begins by saying that we are to insert before Section 50 a new sub-section. That means that it would come in at the head of Part V., and not where it should be, at the end of Part IV. The intention of the Deputy is obvious, but I think that this is irregular.
Mr. HEWAT: It does not seem to me that you are to be called on to adjudicate whether it is regular or irregular, seeing that Deputy Thrift has accepted the assurance of the Minister that he is going to take the whole matter into the broader light of the Commission to inquire into the administration of asylums. I think that Deputy Thrift expressed himself as very satisfied with the attitude of the Minister in this regard. I think it would be quite useless at this stage, and under the circumstances, to go into this question of analysing the differences of conditions in connection with asylums which would warrant different treatment in connection with pensions as regards officers in other services. Obviously, this is a subject by itself, so that I think we can wait and get enlightenment from the work of the Commission. We will all then have a broader and general idea of what Deputy Thrift is aiming at.
Professor THRIFT: I am waiting for the Minister to say that this Inquiry will cover this point as well as the other.
Mr. BURKE: The whole question of lunacy will come up before the Commission. I am in full agreement with the principle of Deputy Thrift's amendment, which has, to a great extent. I think, been covered by Section 47, which makes pensions granted under the Act of 1890 subject to my sanction.
Professor THRIFT: I desire to withdraw the amendment.
Amendment, by leave, withdrawn.
Question—“That Section 50 stand part of the Bill”—put and agreed to.
The Public Health and Local Government Conferences Act, 1885, shall be construed and have effect as if the expression “local authority” in that Act had the same meaning as in this Act.
Mr. HEFFERNAN: In the absence of Deputy White, I desire to move the following amendment:—
To insert before Section 51 a new section as follows:—
“The Minister shall immediately after the passing of this Act exercise any powers that may be vested in him by law to divide the administrative County of Donegal into two parts and shall constitute each such part as an administrative county, and for the purposes of the next triennial election of county councillors to be held after the passing of the Act.”
I see that the Deputy asks the Minister to divide County Donegal into two parts. I do not suppose that he means a physical division, but it is clear that the intention of the Deputy is to have two administrative counties in Donegal. It is a very large county, and at present it is one administrative county, but it is almost impracticable to carry it out. I know that the Minister has power to divide counties for purposes of boards of health, but I think the intention of the amendment is to divide Donegal for the purposes of county council administration, as well as for the purposes of boards of health.
Mr. JOHNSON: I would suggest  that Deputy Heffernan should postpone the consideration of this amendment. There are nine Deputies nominally from Donegal, and seven or eight of them are supposed to attend here. But not one of them is here at present. I am sure that the Dáil would not be prepared to come to a decision on this important matter without having heard some of the witnesses from the county concerned.
Major COOPER: took the Chair.
Mr. BURKE: Had Deputy White been here, I would have been willing to promise him anything, even to the extent of setting up barbed wire fences to separate the people there from undesirable persons in the county. From a conversation I had with Deputy White I think he would be satisfied with the establishment of boards of health. I think he is anxious to have three or four boards of health instead of one, but that would be a matter of arrangement with the Deputy when he puts his case before us. I do not think that there is any disagreement between Deputy White and myself, and Deputy Heffernan can rest assured of that.
Mr. HEFFERNAN: Apparently the Minister knows more about Deputy White's mind in this regard than I do. I am, therefore, willing to withdraw the amendment.
Amendment, by leave, withdrawn.
ACTING-CHAIRMAN: The question is—“That Section 51 stand part of the Bill.”
Mr. BURKE: The Public Health Act of 1885 gave rural and sanitary authorities, subject to regulations, power to pay reasonable expenses in regard to attending conferences in connection with the transaction of their business. The rural sanitary authority has now gone, and it is proposed to apply the section to the local authority within the meaning of this Bill, which includes Boards of Health.
Question—“That Section 51 stand part of the Bill”—put and agreed to.
 SECTION 52.
(1) Where a member of a local authority becomes disqualified for holding office or vacates his seat for absence, the Minister may if he thinks fit, after fourteen days' notice to such member and such local authority, and after considering any representations made by such member or such local authority in that behalf, declare the office to be vacant, and the office shall thereupon become vacant.
(2) If any person knowingly acts as a member of a local authority when disqualified, or knowingly votes when prohibited by or under any enactment, he shall be guilty of an offence under this section, and shall be liable on summary conviction to a fine not exceeding twenty pounds for each such offence, without prejudice to any other disqualification or penalty therefor.
(3) In a prosecution for an offence under this Act where the fact of the defendant's acting as member of a local authority when disqualified or voting when prohibited is proved, before the defendant can rely on the fact that he did not so act or vote knowingly, it shall be necessary for him to prove the same to the satisfaction of the court.
Mr. BURKE: At present, under the schedule, by an order of 1898, when a member of a local authority is disqualified it devolves on the local authority to declare his office vacant. Until it does so the vacancy only takes place quoad member, and not quoad others, so that the actions of the disqualified person, or the person who should be disqualified, are valid although he is subject to a penalty for acting. This is a very awkward situation, and the section is intended to get over that difficulty. Sub-section 1 enables the Minister to declare the office vacant, because oftentimes the local authority is very slow in declaring such office vacant. Sub-section 2 provides penalties for acting when disqualified. Sub-section 3 throws the onus of proof as to ignorance, when an offence is committed, on the offender.
Mr. HEFFERNAN: I would like to  ask if the vote of a member who has been disqualified, say, at an election of an officer, will be valid or otherwise.
Mr. BURKE: This section is inserted to get over that difficulty. At present his vote is valid, and I think if the Chairman of the Party of which the Deputy is a distinguished member were present he would be able to enlighten him on this particular point, because I think he figured in a famous case before the late Lord Chief Baron Palles dealing with this point. It was he who first introduced this fine distinction with regard to the actions of the disqualified member being valid quoad others, and invalid quoad himself.
Mr. HEFFERNAN: I am not clear. I see that there is a penalty for acting, but that does not say that any act performed is illegal while so acting.
Mr. BURKE: His actions would still be valid though he was disqualified, but the fact that the Minister has power to declare his office vacant would be sufficient, in future, to see that such a situation does not arise, for when he becomes disqualified the Minister will have notice, and he will insist on his vacating office. Heretofore there was a kind of interregnum as regards the officer disqualified, but owing to the fact that his colleagues did not like to call attention to his disqualification, he remained on.
Mr. GOOD: Is it not the duty of the local authority to draw attention to the fact that a member has invalidated his position owing to absence or some other cause? If that is so, I doubt whether the section is going to set aside that position. As I read the section it is very ambiguous as to whether a person does invalidate his office. It says: “The Minister may if he thinks fit, after fourteen days' notice to such member and such local authority, and after considering any representations made by such member or such local authority in that behalf, declare the office to be vacant.” If there was some doubt in the past as to when this office was vacant I think there will be considerably greater doubt in future, because the word “may” is here, which  always, with regard to public departments means that there is some doubt about taking steps in connection with a matter where such an expression occurs. It appears to me that instead of making the procedure, if anything, a little looser, we ought really to tend in the other direction and tighten it up. I do not know that the Minister has achieved that in this particular clause. Possibly he will be able to attach an importance to it which the ordinary layman does not see when reading it.
Mr. HEFFERNAN: I am not very clear on this matter. Perhaps I may be talking around it a good deal, but my idea is that a man should become automatically disqualified when he performs some act which causes him to be so disqualified. It seems there is a period of 14 days or longer within which some very important things might happen in local bodies, and that by recording his vote that man might cause something to happen which would not otherwise have occurred. I want the section stronger, so that when a man is disqualified he has no right after that disqualification to take part in any further proceedings of the board.
Mr. BURKE: It would be a very desirable thing if we could bring about the situation Deputy Heffernan suggests, but in practice it would lead to all sorts of difficulties, and it was because of that reason that the Chief Baron, who was a very acute legal intellect, advised this idea of an act invalid quoad member and valid quoad others. You may have a situation where a pension is granted on the vote of a disqualified member, whom nobody realised was disqualified at the time the pension was granted, and that pension might have been paid for ten or fifteen years. A doctor might be appointed, or some other officer, and after he continued to fill the office for ten or fifteen years someone might investigate the position and find out that in reality this member, on the strength of whose vote the officer secured his position, was disqualified at the time, and that would invalidate the whole position. You could have no  real security in carrying on if you were to allow the actions of such a member to be invalid as regards other persons.
It is a very difficult position to legislate for, and I am aware that there is, perhaps, some vagueness about sub-section (1). I will undertake to look into the matter between now and the Report Stage, and see if I can make it a little stronger, so that it shall please Deputy Good better than it does at the present time.
Question—“That Section 52 stand part of the Bill”—put and agreed to.
(1) In this section the expression “responsible officer of a local authority” means in relation to any meeting of such local authority, the secretary, clerk, resident medical superintendent, or other chief executive officer of such local authority if he is present at such meeting, or in case such secretary, clerk, superintendent, or chief executive officer is not present at such meeting, any other officer of such local authority acting in his stead at such meeting.
(2) Whenever a proposal is made at a meeting of a local authority to do any act, matter, or thing in consequence of which either an illegal, extravagant, or unnecessary payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in or to such funds, it shall be the duty of the responsible officer of the local authority to make objection to the doing of such act, matter, or thing, and to state the grounds of such objection; which objection and the grounds thereof, and, if a decision is taken on such proposal, the names of the members present and voting for and against such decision and abstaining from voting on such decision, shall be recorded on the minutes of such meeting.
(3) Sub-section (1) of section 20 of the Local Government (Ireland) Act, 1902, shall be amended by the substitution therein of the words “any member or officer of such public body” for the words “any person accounting.”
Professor THRIFT: I beg to move:
To delete sub-section (1) and (2).
The main points at which I am aiming are also dealt with in the succeeding amendment, which suggests the exclusion of the words “extravagant or unnecessary,” contained in sub-section (2) of this clause. I put the amendment in this form, because I want to draw the Minister's attention to my belief that there is nothing gained by those sub-sections. The whole power that he is seeking to secure to himself is really given in sub-section (3) of Section 53. That sub-section refers to the Local Government (Ireland) Act of 1902. Deputy Cooper, a few moments ago, made some very wise remarks about legislation by reference, and I quite agree with him. A similar remark might, I think, be applied to amendment by reference. Sub-section (3) refers to the 1902 Act, and it is necessary to draw the attention of the Dáil to Section 20 of the 1902 Act.
As far as any changes proposed to be made by this section are concerned, I submit to the Dáil that the 1902 Act really gives all the power required in connection with the keeping of proper supervision over the responsible officer, as he is called. “Any member or officer of such public body ... the amount of any deficiency or loss incurred by his negligence or misconduct, or of any sum which ought to be brought in and was not brought in.” I think that secures what sub-sections (1) and (2) propose to secure. If the Minister thinks there is something else which should be secured and which is not there, I am prepared to withdraw my amendment. I would then leave it to Deputy Johnson to propose his amendment. I propose to support his amendment as well as I can in trying to get excluded from sub-section (2) the words “extravagant or unnecessary.”
Sir JAMES CRAIG: I should like to support this amendment. The sub-sections lead to nowhere. They would be taking away a great deal of responsibility that ought to rest on the people forming the Committee, and it is putting too much responsibility on  the responsible officer. If this responsible officer does not do all the things required in meeting the extravagant views of the members of the Committee and in keeping them from doing all sorts of actions, then, when it comes to the audit, he is going to be held responsible. It is rather a serious matter. I am supporting the amendment, because I think it puts too much upon the shoulders of the responsible officer, and it does not leave enough responsibility on those who are in charge.
We talk a great deal from time to time about educating the people to a sense of their duties. You are not going to educate those people to a sense of their duties by putting a responsible officer in the position of finding fault with a great many things that they may want done. It also puts a very serious responsibility on the officer to decide what may be extravagant or otherwise. For that reason I support this amendment.
Mr. JOHNSON: The arguments for the deletion of those two sub-sections is very largely an argument for the deletion of the words “extravagant or unnecessary” in the next amendment. I think it is right that the two sub-sections as a whole should be deleted, from the point of view of the practical working of a local authority, as much as for anything else. You are taking from the local authority some of their responsibility and you are placing it upon the officer; you are practically telling the officer that he must rule the local authority; he must be the master, because he is responsible. It may be claimed that he has the right in respect to illegalities, because he has special knowledge and was appointed because of special knowledge, and therefore he should point out when an illegal thing is about to be done by the local authorities.
In matters of extravagance or alleged extravagance, it is entirely a matter of opinion as to what is extravagant and what is not, and you are then placing upon the officer the responsibility of protesting on every point wherever there is a suggestion of expenditure,  so as to protect himself. He is going to make his protest, and he is going to make the conduct of business impossible; if not that, he is going to create an enmity between the authority and himself. The section, as a whole, I think, is not only unnecessary, but very, very undesirable, and would interfere very much with the working of local authorities. It would be better to do what is probably the intention, to make the official the master and the Committee merely an adviser to the official.
If that is the intention, let us say it in definite words; but do not go a roundabout way and say the officer is going to be responsible and to be liable for surcharge for any extravagance or unnecessary expenditure. Surely, the local authority, if it is going to have any duties at all, has the right to say what expenditure is unnecessary. If that is not the intention, if the intention behind this section is to make the local official the executive officer and the master of the Board, let us say so in so many words and let the Board be merely the adviser to the chief officer. I support the deletion of the whole section.
Mr. CORISH: I also desire to support the amendment. To my mind, this is another way of appointing a Commissioner. It is really the appointment of a Commissioner in another fashion, and I am wondering what sort of Boards the Minister contemplates he is going to have in the near future if he considers it necessary to appoint the Clerk of an Urban Council or the Secretary of a County Council, as the case may be, the manager of the whole system of local government. If a responsibility like this is placed on the shoulders of the Clerk of a Council, the Secretary of a County Council, or a Town Clerk, it will make that man naturally nervous; it will be a source of irritation, so to speak, to the Council, and it will not assist the deliberations of any Council. The Council's time, to my mind, will be taken up discussing the interpretation that the particular official will put upon the action the Council is about to take. I do not think it is at all desirable that  the Minister should retain this in the Bill. Talking about extravagance, there is no Council in the State can afford to be extravagant to any great extent. Any Council alive to the interests of the ratepayers—and let us hope that the new Councils, when elected, will be alive to the interests of the ratepayers—cannot afford to be extravagant.
They budget for themselves; they have to live inside certain estimates, and if they spend the money extravagantly, in a short time they will not have any money at their disposal for the remaining half of the year. Therefore, I say they cannot be extravagant. The Minister has other checks upon the extravagance of the Council. His auditors and his inspectors visit the localities regularly. I want to congratulate the Minister on that. I want to say that for the past year or so his inspectors have been paying very close attention to the affairs of the local bodies. I would ask him to withdraw this section. It is irritating, will prevent proper deliberation by Councils, will place the executive officers in an unenviable position, and will prevent the local bodies from doing the things that they would wish to do. These bodies cannot afford to be extravagant, and I do not think they will be extravagant to the extent that would warrant the Minister appointing what is tantamount to a Commissioner in every area.
Mr. CONNOR HOGAN: From this side of the Chamber I think we ought to make our position clear. I am asking the Dáil to oppose the amendment proposed by Deputy Thrift. In my opinion these two sub-sections involve a very useful purpose. What do they embody? Merely that the “responsible officer,” which means the secretary of a county council, the clerk of a council, the R.M.S. or some chief executive officer, should give the council the benefit of his advice and act, as it were, in an advisory capacity. You know, even with the best intentions in the world, councillors—and I am speaking now of normal conditions—would not be aware of every technically and would be  often in need of information as to whether a thing would be legal or illegal.
Mr. JOHNSON: This section is not dealing with illegalities. It is dealing with extravagance.
Mr. CONNOR HOGAN: Deputy Johnson might look at the sub-section.
Mr. JOHNSON: That provision is in the present law.
Mr. CONNOR HOGAN: It may be, but it is no harm to reiterate the principle, because latterly it has fallen very much out of sight. A thing can be extravagant without being necessarily illegal. I admit the executive officer might be more or less in a difficulty, but it would be on a rare occasion.
Mr. CORISH: It would be a nuisance.
Mr. CONNOR HOGAN: Now, schemes could be brought forward imposing heavy burdens on the ratepayers. They would be perfectly legal, but they would be utterly extravagant. The section will fulfil a useful purpose if the responsible executive officer comes and tells the council that in his opinion some action is illegal. He merely fulfils his duty. The mere statement of the case will suffice. But the deletion of sub-section (2) would be a serious matter. What will it lead to? The principle of surcharge will be gone by the board.
Mr. CORISH: No.
Mr. CONNOR HOGAN: Yes, the proposal is to delete sub-section (2), and if the Deputies look at it they will see the importance of this sub-section. That part of it touching on the protection of the ratepayers would be gone. I ask the Dáil, and I ask the Minister in particular, in view of the prevailing and general demoralisation of the past four or five years, to retain this sub-section; by so doing he will be merely fulfilling his duty to the Dáil and to the country.
Mr. HEFFERNAN: To a certain extent I am with my colleague, Deputy Connor Hogan, in this matter; but I also see that there would be a great difficulty in the actual working of a council if the sub-section is allowed to stand as at present. The definition of  the words “extravagant or unnecessary” will be left in the hands of the officer. It will be awfully difficult for him to say what is extravagant or what is unnecessary. At the same time, I think that some safeguard should be retained—that is to say, there should be some safeguard whereby any payment, which although not actually illegal, may still be extravagant or unnecessary, may be prevented.
I would suggest to the Minister that the drafting of the section is, perhaps, a little bit loose, and that something should be done in the nature of making it mandatory on the officer to take these precautions, on the application of one or two members or any number of members of the board. It is very unlikely in actual practice that a local board would be unanimous in doing any unnecessary or extravagant action. It would take the responsibility off the officer if my suggestion were embodied in the sub-section. It is not in actual fact a responsibility that ought to be thrown on the shoulders of an officer. With a certain type of over officious officer, it might be very hard to carry on the work of a council with this section standing as it is. At the same time, I think that some safeguard should be retained, without having it exactly as it is in the Bill at present.
Mr. BURKE: I have considered that this is probably one of the best and most valuable sections in the Bill. I never had the slightest doubt about it until Deputy Connor Hogan began to praise it. On the principle that Daniel O'Connell examined his conscience when the London “Times” praised him, I am now thinking there may be something the matter with the section. I think the Deputies have not put quite a fair construction on the section. It would not give the powers of a dictator to the officer at all; they are only monetary powers.
Let us take the position at the present time with regard to surcharge. A council may enter into contract with a firm at a grossly extravagant price for some commodity. In the ordinary way the goods are delivered. The contractor's bill is sent in, and payment is  included in the treasurer's advice note for authorisation at the finance meeting. Unless this amount is included in the treasurer's advice note, the contractor cannot be paid. Accordingly the contractor will be bound to sue the council, thereby imposing on them a liability for costs that in the ordinary course of events results in mulcting the ratepayers who may have to pay a considerable amount of money. In the ordinary course of events, had they a proper council, they would not be called upon to pay that amount. In that way the people lose. When it comes to a question of surcharge, the officials are not responsible, although they might be quite well aware at the time—and they may be laughing up their sleeves at the whole business— that it was extravagant and unnecessary. The members of the council who vote for this extravagant payment, or who entered into the contract that resulted in this extravagant payment, cannot be surcharged unless negligence of a very gross character—of such a character that it is extremely difficult to prove in law—can be proved against them. Accordingly in practice they are never surcharged. This is a point that has never yet been clearly settled in law, whether those who signed the treasurer's advice note can be legally surcharged or not. The highest legal opinions differ very much on that point. At all events, those who sign the treasurer's advice note are not really culpable. It is the individuals who enter into the contract who are really morally, and should be legally, responsible. But there is no way of fixing that responsibility on them.
It is to get over that situation and to give some protection to the ratepayers that this section has been devised. The responsibility is thrown, first of all, on the clerk or other responsible officer who is present. I consider that that is very just. He is an officer who is paid out of the rates by the council to look after their business, to see that the ratepayers' money is not squandered. He is supposed to be an expert official and he is paid a very high salary for knowing his business. He should know it far better than the council. No ordinary councillor could be expected to  know every point in the law. He cannot be expected to know as well as the permanent officer of the institution whether a payment is unnecessary or extravagant. So the onus is thrown, in the first case, on this official to state, when a question comes up at the council, whether or not the result is likely to lead to an extravagant, unnecessary or illegal payment. When the question comes up, all he has to say is: “Gentlemen, I consider, if you pursue this line any further, it is going to lead us into difficulties; it will be an illegal payment; that is my opinion of it.” When he says that, and that is recorded on the minutes, he is protected. There is no possibility of surcharging him. He has cleared himself absolutely by making that statement and recording it on the minutes. But there is a more important point. The fact of his having thus warned the councillors and having it recorded on the minutes will be evidence in a court of negligence of a sufficiently gross kind to support a surcharge.
Mr. CORISH: May I ask the Minister is the official's word absolute when he says whether it is right or wrong? The people who disobey him will be surcharged, according to the Minister's statement.
Mr. BURKE: No; that is not true. That is his opinion. That clears the officer anyway.
Mr. CORISH: It is the gag, so far as the council is concerned.
Mr. BURKE: The councillors can take their chances afterwards. It is for the auditor to decide whether a payment was illegal, unnecessary or extravagant, just as at present. It is for the Minister afterwards to uphold the surcharge or not. Their position, therefore, is no worse in that respect. After the officer has warned the councillors, they can proceed with their resolution or not. If they drop their resolution, there is no more about it, and there is no danger of a surcharge. If they go ahead, it has to be recorded on the minutes who are the councillors who voted for the resolution, against the resolution, or who abstained from  voting. Those who voted for it can be surcharged if, in fact, the payment was illegal, unnecessary or extravagant.
At present there is no possible way of getting at those individuals, and this will tighten up the procedure and prevent a great deal of abuse which is at present going on, irrespective of what Deputy Corish says about the efficiency of members of local bodies. There is no doubt that there are a good many extravagant and unnecessary payments being made. Of course, this will only apply to grossly unnecessary and grossly extravagant payments. They could not be surcharged on a matter that was a matter of opinion. Different people may differ as to whether such a contract was a better investment than another, or not. But, in the ordinary course of events, it is easy to decide whether a payment was extravagant or unnecessary. If the auditor make a surcharge after the councillors have been warned by the officer that the payment they were making was extravagant or unnecessary, then the surcharge can be upheld.
Professor THRIFT: The Minister is really agreeing with us in our forecast of what is likely to happen. He says that what is going to happen is that the responsible officer, in order to protect himself, is going to say to everything that is put forward that it is either extravagant, unnecessary, or illegal. He says that, and then he is safe. Really, this is preposterous legislation. The Minister proposes, in the hope that it is going to do some good, that there shall be some safeguard of this kind The responsible officer can safeguard himself from ever being subject to a surcharge, as is covered in Sub-section (3), simply by saying, automatically or formally: “I protest against this as being either illegal, extravagant, or unnecessary.”
Mr. CORISH: I asked the Minister a question as to whether, when a Town Clerk or Secretary of a council said that a certain action about to be taken by a council was illegal his word would be absolute. He said: “Yes, until the auditor comes.”
Mr. BURKE: I did not say, “Yes.”
Mr. CORISH: He did not exactly say yes, but I inferred from his answer that he meant yes. Take the case of certain work requiring to be done by a council. If a council is about to expend money that is not included in the estimates, and if it is absolutely necessary to spend that money in the interests of the ratepayers, out of another fund, the Town Clerk or Secretary will immediately say it is illegal. The council will then have to stop. It is all very well to say that the auditor is going to determine the matter afterwards. That would mean that that particular activity of the council would be held up for twelve months until the auditor comes, and it would obstruct the whole thing. That is going to make the work of local authorities absolutely impossible.
Take the position in this country for the last four or five years. I do not think the Minister would have liked to have had a section such as this in any Local Government Act operating during that period. I think it would have brought us up against a very difficult situation. We know the conservative mind we have prevailing in officialdom in the different councils. Any progressive move is bound to be in direct opposition to the views of the different clerks or secretaries. The interpretation that will be put on the section will put them in the position of dictators or obstructors, because any progressive action that a council feels disposed to take will be said by them to be illegal or extravagant if they set their minds against it. That is going to impede progress. “Unnecessary” is a very elastic word.
Mr. MORRISSEY: What Deputy Thrift has said will, to my mind, be the result. Every proposition that goes before a council the responsible officer will characterise as illegal, unnecessary, or extravagant, and put that on the minutes. The only thing that will have been gained will be that the clerk will put that on the minutes which go before the Ministry, and are read by the officials. As to the two words “unnecessary” and “extravagant,” it is a matter of opinion, even with the auditor who has to decide the question, what  they mean. I am surprised that a democrat like Deputy Connor Hogan should be satisfied to entrust the interests of the ratepayers to an official and not to the ratepayers who compose the councils. It is well known that members of the Deputy's organisation, the Farmers' Union, have a big majority on the councils in the 26 Counties—in Clare, for instance. I am sure the Deputy, when speaking on this question, was blinded by prejudice. I think with Deputy Corish and Deputy Thrift, from the little knowledge I have, that it would make the working of public bodies impossible.
It seems to me to make clear the mind of the Ministry with regard to local government. I think we can see the line which the Ministry intend to take. They have abolished the rural district councils; the next step, I think, will be the abolition of the urban councils, finally the county councils, and the setting up of paid officials. The Minister in reality is putting the executive officer of a public body, as Deputy Corish stated, in the position of obstructing every proposition that will come forward at a meeting of a local authority. I will support the amendment.
Mr. WOLFE: I hope the Minister will stick to this section and not give way in any manner to the proposed amendment. It is only reasonable to expect that the clerk of a local body, or the secretary of a county council, will be a man capable of giving expert opinion on any matter that might be illegal or extravagant. In the course of my dealings with public bodies, I have, over and over again, seen them saved a great deal of trouble and expense by the advice given by the responsible official, who, as a rule, understands the position in law as it affects the work that has to be done. I have also in the course of a long series of years, in a great many instances, seen the serious results due to the council not paying attention to the advice of the responsible officer. This amendment is put forward to save councillors themselves from any illegal action that they might take through pure ignorance, as they cannot be expected to know the law.  It is most important that this section should be allowed to stand for the sake of the working of the councils, and for the sake of economy.
Mr. GOOD: I was rather surprised at some of the statements made by Deputies who have considerable experience of the working of local bodies. It will be within the knowledge of many of these Deputies that all the duties they are complaining of, and that we are asking these chief officers to discharge in future, are now being discharged by them. Would any Deputy, who is experienced in local affairs, tell me of any responsibility that we are throwing on these officials under this particular section that they are not now discharging? I want any Deputy who has experience in matters of local government—and we have many of them here to tell us—what duties we are throwing upon these officials that they are not now discharging? Deputies who have not experience of local affairs, possibly, are not aware of the necessity for such a section as this, throwing responsibility on the officials. May I draw Deputies' attention to the fact that many of these bodies are only elected for a period of three years. A great many of the representatives elected for that period are absolutely new to the work of local government, and it is only at the end of the term that they begin to have any real knowledge at all of local government administration. If we had not officials who were skilled in local government matters, to advise public bodies when taking divisions on questions on which they should be advised, what would happen to local administration? We can quite understand that the position of the Ministry would be an exceedingly difficult one. These officials are discharging such duties now, and their position is one which specially enables them to do so.
May I remind Deputies that, if they take leading officials like the surveyor, or the clerk, the local authority has no power to dismiss them. It is only by way of recommendation that such officials can be dismissed. I mention that to show that these officials were put in a special position, outside the  jurisdiction of the local authority, in order that they may give independent advice to those important bodies. If you are going to alter the position of those officials, to my mind, you are going to weaken local government in the Saorstát. In view of what has happened I think that would be very inadvisable. It has been pointed out that an official will be constantly objecting to proposals that are put forward, in order to keep his own position clear. From my experience of local bodies I do not think that is the case. No official wants to place himself in what might be called an unpopular position.
Mr. MORRISSEY: The section does.
Mr. GOOD: The section compels him to give advice which is absolutely necessary for the guidance of the local authority, and if there was not compulsion to make him give that advice, in many cases he would withhold it, because it might be unpopular advice. In order to strengthen the hands of that official on the one hand, and to get for a local authority advice which is essential, so that it may discharge its duties and obligations, I say that such a section as this is essential. Notwithstanding what has been said by certain Deputies, I hope the Minister will adhere to the view he has already expressed about this section being one of the most essential in the Bill. In that I support him.
Mr. BURKE: After Deputy Good's speech I do not think it is necessary for me to say much. I think he answered all the objections of the previous speakers. The officer who is responsible at a meeting of the council is not only to object when a proposal is brought forward that is likely to lead to an extravagant, illegal or unnecessary payment, but he is also to state the grounds of his objection, and he is not likely to state the grounds of his objection unless there are something in them. After all, an officer holding a very important position such as that of a county secretary is a man of some weight and substance, and is likely to be a man of some capacity. If he were to jump up like a “Jack-in-the-box” every time a proposal is put  forward and were to say that it was going to be an extravagant, illegal and unnecessary payment, irrespective of what the payment was going to be, he would be unfit for his position, and it would devolve on me to see that he was dismissed.
I undertake, as long as I am the Minister responsible for my Department, to see that an officer who would carry on in such an irresponsible way would not be allowed to continue in office very long. There has been a lot said about the expressions “unnecessary and extravagant.” These are expressions which run through the whole law dealing with surcharges, and are taken out of Section 20 of the Act of 1902. If members of a local body can be surcharged on the grounds of a payment being illegal, unnecessary or extravagant, I think it is only right that I should take power under this Bill to protect them in so far as they can be protected on these three heads—protect them not only by warnings in cases of illegal payment, but also in cases of unnecessary and extravagant payments. The officer of the local authority is in a better position to advise them as to whether the payments are unnecessary or extravagant than they are in themselves.
Mr. MORRISSEY: Who is to decide what is unnecessary or what is extravagant?
Mr. BURKE: That will be for the auditor to decide finally.
Mr. CORISH: When it is too late.
Mr. BURKE: The members will not be surcharged until the auditor surcharges them.
Professor THRIFT: On a point of explanation, so far as I can read Section 20 of the Act of 1902, which the Minister quoted, there is a reference to negligence or misconduct, but the words “extravagant or unnecessary” do not occur in it.
Mr. BURKE: Deputy Good mentioned the fact that in the case of a young council, newly elected, and with very little experience in local government matters, it would not be fair to  throw on it the responsibility of deciding whether or not a payment was unnecessary or extravagant. Hence, there is a permanent official there who is familiar with the work of the council for perhaps ten or twenty years, and it is only natural that the council should be entitled to the benefit of his advice in such matters. I think I made a mistake in quoting Section 20 of the Act of 1902. As a matter of fact, the words occur in a decision of the late Lord Chief Baron Palles on Section 12 of that Act.
Mr. GOREY: I do not think any of us ought to take exception to the retention of the words “unnecessary and extravagant.”
ACTING CHAIRMAN: That is the next amendment. We are discussing now the deletion of Sub-sections (1) and (2).
Mr. GOREY: It is to these two words that objection is taken. In my opinion the word “unnecessary” is required at the moment, and in the peculiar times in which we are living. We have been made quite used to the system of surcharges, and, in my opinion, the retention of these two words is a guarantee and a protection to the members of a council that they will not be surcharged. I take it that it is not when unnecessary or extravagant proposals come to be audited that the local clerk will use his authority, but rather that he will do so when unnecessary and extravagant schemes involving the expenditure of money are brought forward. I suggest that it is too late to be looking for surcharges when the act has been done. The intention of these two sub-sections, as far as I can judge them, is to prevent surcharges and to keep councils in a proper frame of mind. We all know that certain councils in the past, and I suppose some of the same kind will be elected again, by one means or another involved the country in a great deal of extravagant and unnecessary expenditure. That, of course, was done for very obvious reasons, and I think it is as well that a check should be put on the same kind of thing happening again. I believe the Minister is expressing the views of the  ratepayers of the country when he says that these words ought to be retained. I think a very good principle will be established by the retention in the section of the two words to which exception has been taken.
Professor THRIFT: I desire to get some more information on this matter. Deputy Good spoke as if these two sub-sections were really necessary in order to secure the present practice of a responsible officer advising his council. I believe that is entirely based on a complete misapprehension of the meaning of these two sub-sections. I would like my opinion on that to be confirmed from some source or other. It seems to me that that power is in existence at the present time, and that it does not need these two sub-sections to give it to the responsible officer. Therefore, I think Deputy Good's argument falls to the ground. So far as I can understand the section, these three things in the Bill merely repeat what is true at present. The third part of the section does add something that is really valuable. It increases the powers and duties of the responsible officer and makes it possible for the auditor to come down upon him if he does not do his work properly. That, I say, is a real gain. So far as the sub-sections (1) and (2) are concerned they do either what is at present in force or they add something which is absolutely unworkable.
AN CEANN COMHAIRLE: took the Chair.
Mr. BURKE: I think Deputy Thrift missed the force of sub-section (2) in so far as it affects the members of the council. At the present time such members cannot be surcharged, no matter how extravagant.
Professor THRIFT: Under sub-section (3)?
Mr. BURKE: Sub-section (2) reads:
(2) If any person knowingly acts as a member of a local authority when disqualified, or knowingly votes when prohibited by or under any enactment, he shall be guilty of an offence under this section and shall  be liable on summary conviction to a fine not exceeding twenty pounds for each such offence, without prejudice to any other disqualification or penalty therefor.
Professor THRIFT: That does not refer to surcharge.
Mr. BURKE: It does, because the fact of their names being recorded on the minutes on a vote for an extravagant payment, or an illegal payment, will be sufficient evidence to go before a court to convict them of crass negligence, and that will be of sufficiently grave character to uphold the making of a surcharge. At the present time you cannot surcharge the members of a local authority because you cannot prove crass negligence. But this evidence in the minute book that the clerk warned them will amount to sufficient evidence to convict them.
Mr. CORISH: Does that mean that in surcharges made by the Minister he was acting illegally?
Mr. BURKE: I did not say so.
Mr. CORISH: The Minister said he had no power to surcharge.
Mr. BURKE: I never made any such statement.
Mr. CORISH: The Minister was careful not to make it so definite.
Mr. GOOD: The point is if there is not some definite instruction to the chief officer this very necessary work will not be done. The Minister has just pointed out that in order that certain persons may be properly surcharged for illegal acts the clerk is bound under the clause to enter in the minutes of the meeting the names of the persons who voted for the proposal. If you do not put that obligation on the clerk, then in order not to make himself an unpopular official this record will not be made. These people will not be known, and the difficulty of the surcharge will arise. All this looseness in local administration requires tightening up, and it ought to be tightened up.
Mr. CORISH: Deputy Good talked  about the independence of clerks and of officials, and all the rest, and pointed out that they were under the Local Government Department. Now he talks about popularity. If he is right in his first case, what do they care about popularity, so far as the councils are concerned. And, again, about recording the names of the members who voted for or against, or abstained, on the minutes, surely there is another way. An obligation could be put upon the official of the council to record the names on every proposal without acting in such a drastic manner as this.
Professor THRIFT: On a point of order, I would be quite prepared to withdraw my amendment to delete the two sub-sections. A division could then be taken on the words “extravagant and unnecessary,” if the Committee prefers that course.
Amendment, by leave, withdrawn.
Mr. JOHNSON: I move amendment 83. In Sub-section (2), line 13, to delete the words “either” and “extravagant or unnecessary.”
These are the essential words of Sub-section (2) which I object to, and I hope the Committee will object to them also. The Minister has said something about the judgment of Chief Baron Palles. I would like to have some little more enlightenment upon that. According to Sub-section (3) it is intended that Sub-section (1) of Section 20 of the Local Government Act of 1902 shall be amended so as to read: “The auditor shall charge against any member or officer of such public body, the amount of any deficiency or loss incurred by his negligence or misconduct.” I wonder whether the Minister would inform us whether the judgment of Chief Baron Palles is to the effect that extravagant or unnecessary payment is involved in the terms of negligence and misconduct. Deputy Good, in the first part of his argument, praises highly the efficiency of the officers of the local authorities. He pointed out that it was their duty which they fulfilled quite effectively, to point out to the local body whenever that local body was doing anything illegal and rash, or whenever it was doing anything  he thought very extravagant or unnecessary. I believe it is true, as a matter of practice, that the officials do advise the local authorities at the present time, under the present law, of anything extravagant or unnecessary.
But if the local authority has been granted any responsibility, it surely ought to be sufficient for the officer to express his views and leave the local authority to decide whether expenditure is necessary or whether expenditure is extravagant, and let them bear the responsibility themselves. The Minister proposes to throw an added obligation upon the officer; he is not only charged with keeping the body advised as to illegality, but he is charged as to expressing his view as to policy, as to whether such an expenditure of a local authority is necessary or not, whether such a policy is extravagant or not, practically imposing upon the official the duty of directing, as far as he can, the policy of the local authority.
If he has an objection to any proposed expenditure it will be his duty, not merely to advise them that it is unnecessary, but to advise them in a formal way and to state his views and have them recorded in such a way as to debar to the fullest extent in his power the local authority from carrying out their views as to policy and undertaking their responsibilities. If the official is made responsible, subject to surcharges, for his failure to record his opinion about extravagance, and he has any views upon Local Government policy, it is an inducement to him to obstruct the local board on every possible occasion, by pointing out, and having recorded his opinion and his warning that it is extravagant and unnecessary, and in that way will he attempt to frighten the local authority for fear of surcharges. I say it is putting upon him first an obligation that should not be placed upon him, and, secondly, it is giving him power that should not be given to him.
The question that is involved in this, as I have already said, is really a question of whether you intend to govern or to administer the law relating to local bodies by publicly elected representatives or not; whether you intend  really to devolve upon local authorities responsibilities. I say it is not fair to the local authorities to be put under that implied threat that the local officer may hold over the authority, and it is not fair to the local officer to have imposed upon him a duty of declaring his views upon policy or upon extravagance or upon what he considers unnecessary payments.
The powers of the auditor are very drastic. I believe the powers of the auditor have been frequently exercised in an entirely unfair way. But you are not only adding to the fear of the auditor by an elected body, but you are adding to that the fear of the local official, and you are practically telling the local official that he must use this power to protect himself. I say it is going to interfere with the proper working of the local government machinery unless we intend to transfer the power from elected bodies and hand it over to the official. This goes a very long way in that direction. I have already said that if that is the intention of the Minister and the Dáil, it would be far better to have the matter openly and frankly discussed on its merits and not introduced in this sideway in this section.
Mr. GOOD: I think Deputy Johnson would like Deputies to infer that extravagance is “policy.”
Mr. JOHNSON: No; but payment, necessary or unnecessary, is “policy.”
Mr. GOOD: Let us probe this a little bit further. The question of policy is not referred to in this clause at all.
Mr. JOHNSON: It is implied.
Mr. GOOD: The effect of the Deputy's speech is “policy,” and he connected the word, “policy” with extravagance in such a way that he left no doubt in my mind, at all events, that extravagance is “policy” in his mind. If that be so, I think it is the duty of the Dáil to tie up the local authority and its officials, so that extravagance will not be policy. There is no necessity to stress the point that in this country at the moment, if extravagance is to be the policy either of the Government or the local authority, it is going to be a short life and a  merry one with us. My experience of local authorities is that the policy is settled by the Board. The details of that policy are carried out by the officials. I am glad to think that the boards I have had experience of have not been prone to adopt extravagance as a policy.
Mr. JOHNSON: The sub-section reads:
“Whenever a proposal is made at a meeting of a local authority to do any act, matter, or thing, in consequence of which either an illegal, extravagant, or unnecessary payment is to be made....”
The question of doing any act, matter or thing is for the board to decide, and that is a matter of policy. The objection I have is that an official may say that the policy of doing such a matter or thing is “extravagant.”
Mr. GOOD: If Deputy Johnson had only read the clause a little further, he would have made clear to himself and to everybody else what the object of it is. The section continues:
“out of the funds of the local authority or a deficiency or loss is likely to result in or to such funds.”
Then come the important words:
“it shall be the duty of the responsible officer of the local authority to make objection to the doing of such act, matter or thing.”
As I pointed out before, a great many of the members of those local authorities are unskilled persons. They would be quite unable to say as to whether a particular matter was illegal, whether it was extravagant, or whether it was unnecessary, of their own knowledge. It is absolutely essential that they should have the views of a person more experienced than they are, so that they will arrive at wise decisions. That is all this clause does. If you strike out those words, you will have those people called upon to perform duties which they are really unable to perform because you withhold the guidance necessary to enable them to perform those duties. That is what is embodied in this clause.
As I said before, if you do not make it incumbent on those officials to give  those authorities that advice—advice which may be unpopular—naturally, they will be unwilling to give it. It is essential for the wise government of those local authorities that they should have that advice and the right to call for that advice when occasion requires it.
Mr. MORRISSEY: I support this amendment, and I would point out to Deputy Good that on all occasions the official would not be the wisest judge as to the proper expenditure. Supposing at a county council meeting a question comes up with regard to the making or repairing of a road. There may be three or four members of the county council living in that district and they know the needs of the neighbourhood. Would the Deputy suggest that the county surveyor would be in a better position to say whether the expenditure those members were advocating would be necessary or unnecessary? To my mind, the whole drift of this section is to make an official the dictator of the policy of the local authority, because what will actually happen is that the official, when any proposal is made, will be asking himself whether the auditor will consider this extravagant or unnecessary. He will be afraid that the auditor will say this expenditure was unnecessary or extravagant. The result is that he will put on the minutes his objection to the proposition, and when he puts forward his opposition the council will naturally be nervous about going ahead with the project themselves.
I think the Minister ought to look into what this section is going to bring about. To my mind, it is going to cause a lot of difficulty in local administration, and it is really making the official the dictator of the policy. Deputy Good speaks about young councils and old experienced officials. I suggest to the Deputy that it often occurs that you have old, experienced councillors and young, inexperienced officials. I think this section will be unworkable, will lead to chaos and to a lot of necessary work not being done at all, because the council and the official are afraid of being surcharged.  Expenditure being incurred by public bodies at the moment owing to abnormal unemployment, would be dubbed by some people “extravagant” or “unnecessary.” With some little experience of the working of public bodies, I think this provision will make local administration practically impossible, and will lead to chaos. Many necessary works will be left over because the council and the official will be afraid these measures will be characterised by the auditor as being unnecessary and extravagant.
Mr. CONNOR HOGAN: I desire to emphasise and reiterate the arguments in opposition to this amendment that I used in respect of the previous amendment. This section is really asking nothing unreasonable, and I fail to see why the words “extravagant or unnecessary” should be deleted. When an officer protests against a proposal as being either “extravagant” or “unnecessary,” he has to fortify his opposition with some cogent arguments and the council must be the judges of the matter. If it is not a reasonable case, he can very well be laughed down. Remember that he has to enter his protest, and the grounds of his protest, on the minute book. If it is not a reasonable case and if he cannot give weighty reasons for his opposition, there is no harm done. But if he can produce weighty considerations, is it just or right that councils should have the power to disregard the advice given them and carry on a policy which an experienced officer considers will involve them in extravagant or unnecessary expenditure? I say it is not right that they should have that power or that they should escape the consequences of the exercise of it.
There is no undue hardship on officers. After all, everything must be judged in a rational light and in the light of reason and fact. We are told that this means the setting up of a sort of dictatorship by an official. I refuse to accept such a view. The officer only comes forward in an advisory capacity, giving honest advice, which he must have some sensible reason for giving. He offers that advice  to the council and it is up to it to accept it or disregard it. He has merely done his duty. There is nothing wrong in asking an officer, when a proposal is put up, to give his honest and considered opinion on it, and to inform the council where their action may lead them. I admit that those words, “extravagant or unnecessary,” are very necessary in view of the present circumstances of the country. A time may come when it will be possible to revise and review the situation, but I insist that, for the present and for many years to come, when, owing to shortness of funds, councils must, of necessity, carry on at low pressure, those words should be retained.
Mr. T.J. O'CONNELL: I do not profess to have a very wide experience of the actual working of local authorities, but it seems to me that this proposal strikes at the very root of responsible administration by local authorities. It seems to me that no man with any sense of responsibility will accept a position as county councillor or local administrator with a proposal like this hanging over his head. He will be a nonentity so far as local administration is concerned, and I can foresee that the greater part of the time of a local council will be devoted to wrangling with the officer as to whether a certain proposal is, or is not, an extravagant or unnecessary one.
Deputy Good tried to read into Deputy Johnson's speech an expression in favour of a policy of extravagance. I can quite understand that a man who holds the views which, I am sure Deputy Good holds, would consider things to be extravagant, which an ordinarily progressive individual or Deputy, like Deputy Johnson, would not regard as extravagant. I am sure that there can be two interpretations of “extravagance.” I know people who would say that a proposal to establish a drainage or sewerage system in a town or village would be the height of extravagance. After all, this question of extravagance is a matter of opinion, in the first place with the officer, in the second place with the auditor, and in the next place with the  Minister. If county councils with some sense of responsibility are to be elected, surely you ought not put them into this humiliating position. County councils will, undoubtedly, seek the advice of their responsible officials.
What surprises me more than anything else is the attitude adopted by some of the farmers' representatives here. They tell us that no matter what happened in the past, they will see in the future that the local councils will be manned by representatives of the ratepayers, with a full sense of their responsibilities. Yet they are doing everything possible under this Bill to tie these representatives, hand and foot, and leave them without any sense of responsibility.
I think this is a most unprogressive proposal. It would be far better if the Government would come out honestly and say: “We believe that local administration can best be done by paid officials.” That would certainly be better than to have sham democratic local government which in reality, is exercised by an official.
Professor THRIFT: We really debated this amendment when we were considering the last one. I do not propose to add more than a few words to what I have already said on that matter. I would like to ask members of the Dáil if they have knowledge of any scheme for public improvement which was ever put forward and which somebody did not object to as being either extravagant or unnecessary. If they can recall a single instance of that kind, then, perhaps, they would go further and ascertain just how many schemes of that kind they can recall. The point is that the responsible officer will not alone have to say whether a scheme is extravagant or unnecessary, but that he will have to take account of how somebody else is going to view it and what that somebody's view is going to be. He will not be able to go on his own judgment at all, but will have to take stock of what other people are likely to think, and he must have regard particularly to the auditor and to the question whether there is any possibility of the cost coming out of his own pocket.
Mr. BAXTER: Deputy Thrift has just made a point that I saw. I do see a real difficulty in this. It would be a question entirely of interpretation of what was extravagant or what was unnecessary, and unless the Ministry could, according to some well-defined regulation, give every local authority to understand what their point of view would be as regards payments either unnecessary or extravagant, councils would unquestionably at some time find themselves in a difficulty. Unless the Minister can say that along with this section he will be able to frame regulations that will enable local authorities to know what would be the mind of the Ministry, and the auditors of the Ministry when they go to the country, I agree that difficulties will arise under this section for local administrators. I think the Minister must of necessity revise the section and these words. I want to say this: I do not agree that there is not a necessity for the insertion of these words, but the difficulty will arise on the interpretation.
Mr. JOHNSON: That is the whole case.
Mr. BAXTER: And if the Minister could only make it known from his point of view, from the point of view of his administration, what would be extravagant and unnecessary, and make that understood by the local authorities, there ought to be no difficulty in leaving in these words.
Mr. BURKE: I think there is some misunderstanding about the effect of this section. It does not lay down any new rules as to what would be extravagant or unnecessary, and what payments can be surcharged and what cannot. The only effect would be to transfer responsibility to the shoulders of those who voted for the resolution instead of to the person who signs the advice note, which is the case at present. The man who signs the advice note is liable to surcharge, and in many cases he is a man who has voted against the original proposal. It comes to him and he is not aware of what the original proposal was, and he signs it as a matter of form. That particular thing happened to President Cosgrave when he  was Chairman of the Finance Committee of the Dublin Corporation.
Mr. BAXTER: Might I ask the Minister is it for extravagant and unnecessary payments there is a surcharge, or is it for illegal payments?
Mr. BURKE: For both. As a matter of fact, “illegal” will probably include extravagant and unnecessary.
Mr. CORISH: Then, why the necessity for the other thing?
Mr. BURKE: In order to make it more specific.
Mr. JOHNSON: Does the Minister say that that is the only change in the present practice that is proposed in this section, to make the persons responsible who vote for a procedure, instead of the signatories to the cheque?
Mr. BURKE: That is one of the particular changes, but it also throws responsibility on the clerk in the first instance. There has been a discussion here as though the general policy of the local authorities was to be affected by this section, and Deputy O'Connell quoted the instance of a drainage scheme, perhaps, coming up before a meeting, and the clerk ruling it out on the grounds of its being unnecessary or extravagant. Everybody knows that big matters of policy of that kind have to come before the Minister, and I would have the power of sanctioning or not in the case of a drainage scheme or a housing scheme.
Mr. T.J. O'CONNELL: It might never get as far as the Minister.
Mr. CORISH: Does the Minister suggest that every drainage scheme that is undertaken by local authorities comes before the Minister for sanction?
Mr. BURKE: If there is a loan for it, it does.
Mr. CORISH: If there is a loan for it! What is the use of leading the House astray?
Mr. GOOD: Drainage schemes are not undertaken out of ordinary revenue. If there are schemes of any magnitude they are the subject of a  loan, and if there is a loan, permission has to be obtained from the Minister.
Mr. CORISH: Does Deputy Good seriously suggest that no drainage scheme was ever undertaken out of ordinary revenue? I thought he knew a little more than that.
Mr. BURKE: It would not be much of a scheme if no loan was provided for it.
Mr. CORISH: It would be a scheme. I think the Minister ought to face the arguments and go into the matter.
AN CEANN COMHAIRLE: If Deputy Corish would allow him, perhaps he will do so.
Mr. BURKE: Deputy Corish evidently does not want to hear. That is quite evident. It is only as a general rule that this section will come into operation. Not so long ago there was a council that entered into a contract for eggs, for a period of some months, at the rate of 6d. an egg, when they were selling in the market at 3d. an egg. That is a particular case in point of an extravagant and unnecessary payment, and it is in matters of that kind that this section will prove very valuable. Deputy O'Connell has also objected to the section on the ground that it will prevent a great many people from going forward as representatives on local bodies. I think it will have the exact opposite effect. If I were going forward as a member of a local authority I would be very glad to have an officer placed in this position who would have to warn me if I were making an illegal payment.
Mr. JOHNSON: Who would take all responsibility off your hands.
Mr. BURKE: He would not, but he would be able to guide me in matters on which I would have very little information, or very little knowledge, and I think most representatives of local authorities will welcome this. We have some prominent members of local authorities here who have in fact supported me in this contention.
Mr. CORISH: How many?
Mr. JOHNSON: The Minister quotes some case of a council having paid 6d. for eggs which they could have bought for 3d., and he said that only in such cases will this have any effect. I wonder at him making such a statement here——
Mr. BURKE: I would like to take exception to Deputy Johnson's statement that I said only in such cases. I said as a general rule. It is not easy to lay down a hard and fast line like that.
Mr. JOHNSON: I want to put forward another instance where this is likely to have effect; it is only one, and it is quite apart from the question of general expenditure or schemes of drainage. Some little time ago, I raised a question here regarding the action of the auditor in a town in Monaghan. The auditor had been in consultation with the chairman of the urban council, who was a local employer, and he and other members of the council were very anxious to reduce wages in the town, and very anxious to reduce the wages under the council. The town wages were at a certain rate, and the council wages were slightly higher. The local councillors desired to get down the town wages, more particularly, and incidentally desired to get down the council wages, and they persuaded the auditor that if he would bring in some recommendation regarding the rate of wages paid by the council it might have a good effect upon the rate of wages paid in the town. That is what happened. He warned the council that the rate of wages paid by the council was higher than the rate of wages paid in the town and that there should be a reduction. If no reduction was made, he was going to declare it unnecessary or extravagant, or words to that effect. They proposed a reduction, and having got the reduction on the instruction, or the assistance, shall I say, of the Minister for Local Government, it became very much easier to reduce the rate of wages in the town.
Let us assume that you have a clerk to the local authority who is also interested in the rates of wages in the town and who collaborates with the auditor, and there comes to be an expression  of opinion from the auditor that certain rates of wages are extravagant or unnecessary. The local officer will warn the council when any question arises as to the payment of such wages. You will have it recorded, and if the council takes any steps against that advice, he is relived of responsibility and he ensures that the council will be surcharged.
That is one case that is not at all beyond the bounds of possibility, based upon actual experience. In that way an officer would be able, as I have already said, to hold the whip over the council. I want to put the case from the point of view of the officer who has no such desire to reduce wages or has no ulterior motive of any kind, but is timid, or, alternatively, has a definite objection to a certain course of municipal policy. He knows the views of the auditor in regard to what is unnecessary or what is extravagant, whether it be expenditure, say, for a wash-house, expenditure for a public library, expenditure for making a better road, or whether a particular kind of road should be made rather than another kind. That officer simply puts down his word that such a thing is extravagant or unnecessary. Then you have the lead already given to the auditor, and the council, fearing that, will refrain from undertaking expenditure which they believe is necessary. The fear of the combination of the officer and the auditor will restrain them from doing what they believe is necessary and a public duty.
The Minister has rather suggested that the term “illegality” includes extravagance on the one hand and unnecessary payments on the other. Deputy Good has tried to make out, and I think the Minister has also tried to make out, that these two words apply only to payments of accounts that have been already entered upon— extravagant or unnecessary payment for work that has been already entered upon by contract or by formal arrangement. But these two words in the place they occupy in this section deal with the policy of the board, not merely the payment of extravagant amounts for a policy already entered into. They  deal with payments in respect of policy. “Whenever a proposal is made at a meeting of a local authority to do any act, matter, or thing, in consequence of which either an illegal”—and I have no objection to that whatsoever—“extravagant or unnecessary payment is to be made out of the funds of the local authority.” I shall, in order to satisfy Deputy Good, read further—“or a deficiency or loss is likely to result in or to such funds.” It is not “and a deficiency.” So we have three possibilities—a proposal which is extravagant or unnecessary, where a payment is to be made out of the funds of the local authority, or a proposal which would lead to a deficiency or loss upon the funds.
There are three possibilities there, and I am dealing with No. 1, which does not affect the question of a loss or deficiency out of the funds. We are dealing with extravagant and unnecessary payments, and I say that you are going to place in the hands of officials power over the policy of the board. You are depriving the boards of some of their responsibility. You are placing that added responsibility on the official, and you are limiting the development of local government in the way that we had hoped it would develop. You are removing it from the responsibility of elected persons, and you are placing the power in the hands of the official, not because the official desires, not because it is going to add to the influence or the usefulness of the official, but the contrary. Deputy Good has testified, and I think most other persons who have had experience will testify, to the fact that the officials do already warm and advise authorities when they are proposing to do any extravagant thing or to undertake any unnecessary expenditure. When, in spite of that advice, the board decides to undertake that responsibility, then let it be their responsibility, and if it is illegal, or if it has any grossness about it, then let them be made to pay, but do not attempt to place upon the official the obligation of warning at the price of a surcharge.
That is the point I am making. You are imposing upon the official the obligation  of warning against extravagant or unnecessary payments. You are doing that at the price of a surcharge, because if he does not warn he is likely to be surcharged. I say this proposal is double edged, it is going to make the official either act in timidity by way of protecting himself, to warn on every possible occasion the council from doing an unnecessary or an extravagant act, and on the other hand, it is going to place to his hands power over the council to prevent expenditure which the council might view as necessary and desirable, but for fear of his warning and his possible collaboration with the auditor, it is going to deprive the council of any valuable or useful expenditure and any development of the sense of responsibility amongst local authorities.
Mr. CORISH: I would like to say, so far as we are concerned, we do not want any inference to be drawn that we are in favour of illegal and extravagant expenditure. What we do object to is, the interpretation that might be placed by a clerk on this particular phrase. In connection with the statement made by the Minister about eggs, I would like to know from the Minister —who is not here, by the way—whether  it is not obligatory on councils to advertise for eggs and things of that kind, and whether or not they were tendered for in this case, and whether that council accepted the lowest tender. I do protest that when a Deputy rises to ask a question, both the Minister and his officials should walk out of the House. I do not think that is fair.
Mr. McGILLIGAN: The Bill is still in the House if the Deputy likes to continue.
Mr. CORISH: I quite understand. But at the same time I think when a Deputy rises to ask a question, it is not fair that the Minister and his assitants should leave the House.
Mr. McGILLIGAN: I do not know whether it is material, but the Deputy should know that the Minister's assistant cannot reply. However, in order to facilitate the Deputy, I will move to report progress until to-morrow.
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