Wednesday, 25 November 1936
Dáil Éireann Debate
“This sample of water was taken by me from the well situated on the farm of Mr. John (Brown) McElligott, Lacca, at 7.30 p.m. on 3rd July, 1929, in the presence of Mr. McElligott and of Mr. J. Crowley, T.D.
That sample had been sent on for bacteriological examination to Dublin, and the report is headed “Department of Pathology, University College, Earlsfort Terrace, Dublin.” The Minister challenged me about the report on the pumping scheme, and this is the report, in July, 1929, on a sample of the Lacca water by a bacteriologist here in Dublin who was sent a sample:—
“This water has a high bacterial content of organisms growing at blood heat and also at room temperature. Bacillus Coli, the presence of which is evidence of sewage contamination, is present in as little as 0.1 c.c. of the sample. From the bacteriological point of view this water is bad and quite unsuitable for human consumption.”
That is to say that, even in 0.1 cubic centimetres of the sample he found bacillus coli—a sure indication of sewage contamination. It is but fair to say, however, that there is a note here which says:—
“NOTE.—It must be observed that the water was collected on 3rd July. It did not arrive here and was not available for examination until the 6th July. This would tend to give a less good result than a water  examined immediately after collection.”
At any rate, that was portion of the argument put up by the people of Listowel at the time—that the Lacca scheme was an unfit scheme; that the water was unfit for human consumption, and that it would require heavy expenditure on filtration before it could be made of use. Well, the protest went in anyway and, as time went on and the scheme began to take shape, it became apparent that there was a great deal of truth in the protests that had been made. It soon became apparent that it was necessary to add filter beds, at a further expenditure of about £1,000. Then, as it was nearly completed, it was again discovered that the supply was entirely inadequate. So, the letter from the Minister was wrong on both points: wrong as to the suitability of the water without filtration, and wrong as to the supply.
The position is now that the town of Listowel is saddled with a payment of £12,400 for the completed Lacca water scheme. They have, indeed. been offered by the Minister a sum of £3,000 for the extension from Bunglasha to which I referred, where the water is wet—and that is all you can say about it—but they will get that £3,000 on condition that they pay £12,400 for the “dud” scheme that has been foisted on them. Now, the Lacca scheme, as I say, has been completed, and does the Minister's boast come true: that it is adequate? He said that once that scheme was completed, the town, for the future, would be saved the expenditure on pumping which was an annual charge for the old scheme. The position to-day is that, with the Lacca scheme completed, as it now is, Listowel gets water from that scheme when the weather is wet and, perhaps, for a few days afterwards. There is an adequate supply from that scheme in wet weather; but when the weather is fine, the much-despised old pumping scheme has to be resorted to. Accordingly, the Lacca scheme is a wet-weather scheme, but they have to resort back to the pumping scheme when they have fine weather in Listowel, and so the town is not relieved of further charges for pumping.
Now, the Board of Works lent that money to the council, or rather to the  three people who represented themselves as being the Urban Council of Listowel. Of course, the Board of Works acted, naturally, on the sanction that the Minister gave, first of all, to the triumvirate's application, but the main purpose of this Bill is to safeguard the Board of Works, to prevent the Board of Works from being fired out of court if this case went on to hearing before the Supreme Court. I put it to the members of the House that in a case of this kind, where this scheme has been inflicted on the people of Listowel through, if you like, mismanagement down below in Listowel, but chiefly because of the mismanagement and the blundering of two Government Departments—the Board of Works, the lenders, and the Department of Local Government, the persons whose duty it is to inspect and to sanction—where such a thing occurs, it is unfair to the people of the locality that they should be made pay for departmental blunders. Incidentally, if the Minister insists upon this, and if an adequate rate is put on the town of Listowel to enable the Board of Works to collect the shekels, well, then, it will be sufficient, I should say, to break the ratepayers of Listowel—or any of them that remain to be broken, because I can almost foresee them writing to the Minister and telling him: `Here you are; take our town.”
In December, 1932, a further additional expenditure was embarked on, and a scheme for the erection of 104 houses for the working classes, under the Housing of the Working Classes Act, was propounded, and a loan of £34,000 was sanctioned by the Minister. Now, a loan of that particular calibre, or under that designation, is not counted when you come to look at the limit of borrowing power of the council; and the attitude of the people of Listowel towards that particular loan has been always this: that even though they considered the scheme largely ill-advised—because the cost of the houses and the rents at which they would have to be set if they were to be in any sense economical  so that the capital could be repaid, would make it impossible to let the houses to the persons for whom such houses were primarily intended—even though the people of Listowel, as I say, considered the scheme ill-advised, at the same time they have always stated that they were prepared to shoulder the burden imposed on them by this scheme. It was said so publicly on their behalf at the inquiry that the Minister caused to be held last July 12 months in Listowel, prior to his dismissal of the then council; and it has been their attitude since, as it is their attitude to-day, that they are prepared to shoulder the burden of the housing scheme, for what it is worth—they do not consider that it is an extremely good scheme—but at any rate, because of the purposes for which it was undertaken, they would shoulder that burden, but they certainly jib at having to pay for a second “dud” water supply. Now, June, 1934, came along. I should say, in this connection, that that régime, of course, lasted from 1928 to 1934, because there were no local elections in 1931, as there was a special Act passed providing that no local elections would be held anywhere in that year. In 1934, however, a properly elected council took over the affairs of Listowel, and I remember the headlines at the same time in some of the Kerry papers, and some of the speeches that were made, when the council was elected.
The council of Listowel was heralded as 100 per cent. republican. What happened that republican council in Listowel? After 12 months' existence under the Fianna Fáil Government, they were sacked. The 100 per cent. republican council had, of course, to consider their position when they took over office and they found the “kitty” was empty. I should say this: that triumvirate during their term of office, even during the completion of this scheme, had not attempted to charge the necessary water rent. These water schemes have been paid for in Listowel, not by the rates but by a water rent. The triumvirate did not attempt to increase the water rents or to increase  the charges that would be necessary to pay for their loans and they were not forced to do it. From 1931 to 1934 they did not increase the rents and they therefore did not incur any odium over increased rents. There was no attempt to collect from anybody. When the new council came in they were told that there would be an objection to the rate on the ground that it would be invalid, for it would be invalid because of the invalidity of the loan, due to the invalidity of the council to whom the loan was made. The council put their case to the Minister on several occasions and they got peremptory orders to strike a rate which would provide for these repayments. Eventually they asked the Minister by resolution on, I think, the 4th December, 1934. That resolution reads:—
“That our clerk be instructed to inform the Department of Local Government and Public Health that while we, the Urban District Council of Listowel, are quite prepared to strike a rate adequate to meet all expenditure which is legally justifiable, we are entitled to know, for our own protection, as well as in the interests of the ratepayers, whether all the demands made on us are in strict accordance with the law, and accordingly to ask the Department of Local Government for replies to the following questions:— (1) to what amount is the borrowing power of the council limited by law; what is the principal sum due on foot of loans for which the council is now asked to make provision.”
“I am directed by the acting Minister for Local Government and Public Health to refer to your letter of the 5th instant and queries enclosed. It is noted that the council are prepared to strike rates adequate to expenditure which is legally justifiable. The rates already struck for the current year are not adequate to their expenditure, and having failed in a most deliberate manner and with full knowledge of their  liabilities to make provision for meeting all their expenses they must now consider in what manner the deficit which will arise owing to insufficient rates is to be met. I have to suggest that the council should address themselves to this question without delay. Until it is definitely settled there can be no further loans advanced for any purpose.
Under the Public Health Act of 1878 moneys borrowed for sanitary purposes shall not at any time exceed, with the balance of the outstanding loans contracted by the sanitary authority, twice the annual value of the premises assessable within the urban sanitary district.”
That might be taken to be an error by omission because an extremely important word is omitted from the concluding sentence. The correct reading of the Act is “twice the net annual value of the premises assessable within the sanitary district.” It might have been an inadvertent omission but when we find the Minister coming along to-day in Section 9 of this Bill and providing for its interpretation here, for its reading into the Act, one has to be a little bit suspicious. One is inclined to think that there was a deliberate omission of the word “net”. This is the reading that the Minister now wants us to take of Section 238 (2) of the Public Health Act, 1878. He knows, in spite of all he has written to the council, that it is not the interpretation that has always been put on that section. It is not the interpretation that Vanston put on Section 238. That act was misquoted in that letter from the Department to the council to give them the impression that their predecessors had, in fact, the right to borrow up to the amount which they had borrowed, because it is perfectly clear that the triumvirate, again part of the infectious craziness, got the sanction of the Department. They were allowed by the Department to borrow sums considerably in excess of the borrowing powers the council was limited to by law. The Minister is now by Section 9 of this Bill giving retrospective sanction or—shall I say?—giving the force of law to the sanction there given  illegally by the Department of Local Government and Public Health allowing the triumvirate to exceed their limit of borrowing. A further resolution passed by the council on January 4th, 1935, was to this effect:—
There was no reply to that. The Department was beginning to think that the 100 per cent. republican council were not as nice boys as they should be; that they were beginning to ask awkward questions; and so the Minister began to look round to see how he could get rid of them. He did duly get rid of them. There was a letter of the 21st January, the effect of which was to invite the Minister to test the legality of the attitude of the then council and of these borrowings. I think that was a perfectly reasonable act. In spite of the fact that they were 100 per cent. republican, as they called themselves, to that extent I say that was a reasonable demand. It was reasonable to this extent, that there was no demand whatever that the Board of Works should not pursue the debt like any other lender if the loans were not being repaid. If they were satisfied they could recover—the courts were there for the Board of Works to go after their money. This was an invitation to them to do so. The invitation was not accepted. Instead, after a few months, during which there was correspondence with which I will not bother the House, an inquiry was ordered to be held. That meant that the Minister had made up his mind  that he was going to dissolve the Listowel Council. Therefore, he had to hold a statutory inquiry before doing so. You know how these inquiries are held by officers of the Department.
It was supposed to be held into the conduct of the Listowel Urban Council. I am not casting any reflection on the particular officer who held the inquiry, but any sensible member of the Dáil can imagine the position of a comparatively junior officer, or even of a fairly senior officer, of the Department holding an inquiry which is to a large extent to consider the acts of his own superiors, of his own Minister and of his own Department in connection with the affairs of the council. What result could such an inquiry have? Of course it had the result everyone expected and Listowel Council was duly dissolved.
I will not go into that further, as Deputy O'Sullivan dealt with it, and I touched upon it previously. Legal proceedings were instituted and should go to the courts. The Minister, fearing the decision of the Supreme Court, and indeed I might say from the face of the Bill knowing what the decision of the Supreme Court was bound to be, brings forward this Bill. He certainly takes no chances in it, because it makes provision for doing as thorough a job in the way of whitewashing as I have known. No matter what act might have been committed by anybody, that act is now to be considered valid, and black is deemed to be white for 14 years from the 6th December, 1922. I should like especially to know what the attitude of the Fianna Fáil Deputies for Kerry will be. There is only one of them in the House at the moment. They must feel themselves in a very peculiar position if they give their support to this Bill. There are limits to Party allegiance. My view of the matter is that a Deputy has a prior obligation to his constituency and to his constituents than to any Party Whip. Of course there are a few Deputies who can perhaps pat themselves on the back and thank God that Listowel will not be in the portion of Kerry for which they will be standing at the next election. Deputy Crowley, Deputy Flynn and Deputy D. Daly are in that position. They can  say to themselves: “Well, Listowel be hanged. I am not going to worry about Listowel. I will obey the Party Whip. Even if Listowel is in my constituency now I can afford to ignore that consideration because I am not going to look for its suffrages again.”
They may do that, but I think it would be a very contemptible thing for them to do, because until the next election they represent the people of Listowel in this House, just as they represent the people of Killarney or Castlemaine, and I put it to them that it is up to them, as Deputies representing the people of Listowel, to oppose by their voices and by their votes the carrying of this measure into law. If they do otherwise they are untrue to the trust put upon them by the people of Listowel, by whom they were sent here to look after their interests. Deputies McEllistrim and Kissane will be in the unfortunate position that they will be contesting North Kerry. I put it to them that they will be in a very awkward position if they are a party to saddling the people of Listowel with this burden of £12,400 for a dud water supply.
Mr. Lynch: I am a very sympathetic person occasionally. I could adopt the attitude of Deputy Crowley and of Deputy Flynn, and I could also wash my hands of the people of Listowel if I wished. I am not doing so. I will not stand for that portion of Kerry, but I say that while this legislation is directed at Listowel to-day, any other town in Ireland may be in the same position to-morrow. Killarney may be in that position to-morrow. I put it to members of the Fianna Fáil Party, who now represent Listowel, that the people of Killarney, or Cahirciveen or Kenmare, or maybe Ballydehob, will say those who support a measure of this kind, which is against the interests of the constituency, would do the same thing to-morrow. If Deputy Flynn and Deputy Crowley support this measure, the people of Killarney or Castlemaine can feel with regard to them that they would do the same thing with these towns. I think that  is a fair proposition. This legislation is retrospective. Retrospective legislation is obnoxious in many ways. There are certain occasions in which retrospective legislation can be justified, or at least an argument can be made for it. We had such an argument put forward in this House nearly 12 months ago by Mr. Justice Maguire, who was then Attorney - General. He was speaking then on the Land Purchase (Guarantee Fund) Bill, 1935, and was replying to a speech by Deputy Fitzgerald-Kenney. As reported in the Official Debates, Volume 59, column 2234, he said:—
“Retrospective legislation, or legislation to clear up a doubt in past legislation, is, however, a step to be taken on the rarest of rare occasions. It is only justified in exceptional circumstances.”
“There have been several instances of legislation dealing with very minor matters. There have been in several finance measures sections introduced having retrospective effect, sections validating what had been the practice, sections introduced while cases were pending in the courts, dealing with the precise points at issue in the courts. I accept whole-heartedly the principle that if by any chance individuals discover that they have certain rights under legislation and seek to have these rights vindicated in the courts, the Legislature should hesitate very much before it should interfere with these particular rights.”
Then he quotes from Mr. Blythe when speaking on the Committee Stage of the Finance Bill in 1930, as reported in Volume 39, column 1376. He quotes with approval what Mr. Blythe then said with regard to a retrospective  section, and the quotation is as follows:—
“We act really before there is a final determination as to what the law is on the matter... As a matter of fact, both here and in England legislation has had to be introduced with retrospective effect.
“In the present year's Finance Bill in Great Britain, pending a decision of the final court, a section was introduced because they feared that a decision might be given which would have upset the practice as it had existed for 40 or 50 years. Before the court had announced its decision at all, a section was introduced to continue the existing practice, if it proved to be necessary. You can get the most extraordinary results if the whole meaning of legislation is going to be revealed by some court decision, to be entirely contrary to what was intended and to what it was always believed to be.”
The then Attorney-General quoted that speech with approval as showing that retrospective legislation is justifiable when it is brought in to validate what had been the practice; when as Mr. Blythe had put it, a decision of the court may upset the practice as it existed for 40 or 50 years. What is the Minister doing in this Bill? In Section 9 he is changing the practice and the interpretation as it has existed since the passing of the Act of 1878.
Mr. Lynch: Yes. The Minister quoted the decision of Mr. Justice Johnston against me with regard to the validity of the council; he told me that Mr. Justice Johnston had upheld the validity of the council. I put it to him then—why was he afraid to allow the Supreme Court to give a final decision on the matter? I put it to him that Mr. Justice Johnston in his decision upheld my contention here, that this was the interpretation of Section 238, paragraph 2, of the Public Health Act, 1878, during all the years, and that he followed Vanston's opinion in that. So that what the Minister is doing by Section 9 is not to remove any doubts which may exist about the  interpretation, or to put right an interpretation of the courts which upset the interpretation that had always been held to be the correct one. He is by Section 9 putting a new interpretation on Section 238 of the Public Health Act, 1878, and he is thereby very considerably extending the limit of borrowing of local authorities.
“It is only in exceptional circumstances such as those that a Government would, I think, come to the House and ask for retrospective effect to be given to clear up the position while a case was pending in the courts, to have retrospective effect given to the interpretation upon which it has been acting and which everybody must admit, who looks at the debates, was intended by this House should be contained in the legislation.”
He was referring then I think to the Land Law Act, 1933. Nobody can say that the Minister is endeavouring to establish the intention which the Legislature that passed the Act of 1878 had. He is changing the interpretation that has been put upon it since the passing of the Act and since the passing of the Local Government Act, 1898, for this country.
In Section 11 of the Bill he removes completely any check on the borrowing powers of local authorities. Every Deputy and every ratepayer ought to consider their position under this. Deputies probably used to read “penny dreadfuls” when they were young— I used to read a considerable number. These used to be Wild West stories about the very hot gambling that went on in mining camps, etc. I remember one of them which described a gentleman coming on with two big guns hanging on to him—“the two-gun man” he used to be called. There was a game of poker going on and he asked, “What is the limit”? The reply was, “The limit is the roof,” and he said, “Take off the roof.” The Minister has taken off the roof as far as any limit to the borrowing powers of local authorities is concerned, because by  Section 11 all check on borrowing powers is done away with.
Section 11 looks very innocuous. It refers to an Act called the Local Authorities (Financial Provisions) Act, 1921. There is a section in that Act which provides that local authorities can borrow for current expenses during the year and the money so borrowed is repayable within the year. Borrowing under this particular Act is not to affect the borrowing limit of councils. In other words, no matter how much you borrow under the Act, it does not count when ascertaining whether or not a loan has exceeded the borrowing powers. The Act specifically lays down that it is to deal with current expenses. The Minister is going to make “current expenses” mean the repayment of instalments on moneys borrowed in the past. These are now to be interpreted as “current expenses”. Furthermore, the Act is now to be so interpreted that you can, without reference to the limit of borrowing powers, borrow any sum to repay a former sum borrowed subject to the borrowing limits. What, then, is the position? A local authority reaches the limit of its borrowing powers and can borrow no further. They go to the Minister and, if he sanctions it, they can borrow the whole amount which they owe and which has counted, so far as their limit of borrowing is concerned, under the provisions of the 1921 Act, transfer it over to pay off their indebtedness, clear their sheet and start over again. If that is not taking the roof off borrowing, I do not know what is. That is the position which is being created under this Bill. It violates everything which Mr. Justice Maguire, as Attorney-General, said would justify retrospective legislation. Nothing the Minister has said and nothing on the face of the Bill justifies a measure of this kind. There is no justification whatever for the new interpretation which the Minister wants to put on Section 238 of the Public Health Act and there is no justification—this is a matter that should be checked by Deputies—for giving to the Financial Provisions Act, 1931, the meaning the Minister now wants to give it—a meaning it never had up to the present.
I repeat that this is a measure that  should never be brought before an Assembly through which it can be steamrolled by the majority. It is being brought before a Single-Chamber Parliament. It is the type of measure that we could never succeed in getting the Seanad to agree to in the past. It includes many vicious principles and the House will be taking a grave responsibility if it gives it its approval. Deputies will, if they approve of this Bill, be setting a precedent with regard to retrospective legislation which can be pointed to for any type of retrospective measure in the future. Deputies on the Government Benches who are going to support this measure cannot grumble if, on another day, they find it pointed to, as against themselves. I have said that the people of Listowel were prepared to face the repayment of any sums for which they were found legally liable. I repeat that. I go further and say that, even if they were found not legally liable for that sum of £34,000 which was borrowed by the triumvirate for the purpose of housing—even if that were found to be illegal—the ratepayers of Listowel would be prepared to shoulder the burden of repayment of that amount. But it is not good enough to ask them to pay for a second water scheme, to place upon them responsibility for the sum of £12,400 for the Lacca water scheme in addition to about £6,000 spent on a water scheme in the 'nineties which never gave a drop of water to the town of Listowel. The whole position can be easily rectified if the Minister acts fairly towards the ratepayers and has regard to the offer they have made. He can provide that the Central Fund shall bear the burden of the blunders of Government Departments and that it bears this sum of £12,400, releasing the ratepayers of Listowel from responsibility for it. That is the sensible way out and the fair way out. I ask the House to refuse to give this Bill a Second Reading until the Minister gives some assurance that he will take steps to provide that this sum of £12,400 will be borne by the Exchequer and not by the ratepayers of Listowel.
Mr. Kissane: I should like to assure Deputy Lynch that I have the interest of the people of Listowel as much at  heart as, or perhaps more than, he has. I think I am entitled to use my intelligence as to whether or not I should vote for the Bill. If I thought that, as Deputy Lynch said, this measure would impose an impossible burden on the ratepayers of Listowel, I should have no hesitation in voting against it. But I consider that it is necessary to introduce this Bill and that it should have been introduced before now for the purpose of clearing up the rather difficult and lamentable situation which has obtained in Listowel for the past couple of years. I am not concerned at all with what happened in the High Court, nor am I concerned with what might happen in the Supreme Court. What I am concerned with is the welfare of the people of the town of Listowel. I submit that, as long as the present position continued, there would be no future for the people of Listowel. They actually do not know where they stand at the present time. In my opinion, this Bill will go a long way towards clarifying the position and will provide a basis on which to bring about a settlement between the people of Listowel and the Local Government Department. I listened to the speeches of my two colleagues on the opposite benches—Deputy O'Sullivan and Deputy Lynch—and while I admit that their speeches were eloquent and fairly well worded, they carried no conviction to me, nor would they carry conviction to anybody acquainted with the situation which led up to the introduction of this Bill.
Deputy Lynch quoted at length from speeches made in this House by Mr. Justice Maguire when he was Attorney-General. But, like Deputy Lynch, I have no love whatever for retrospective legislation. I do not like it, and I am sure that the majority of Deputies, if not all, do not like it. I say that retrospective legislation should only be introduced in very extraordinary circumstances, but my submission to the House is that the circumstances which led up to the introduction of this Bill were very extraordinary indeed. I have said that the speeches of my two colleagues, Deputy Lynch and Deputy O'Sullivan, carry no conviction  to me as to the strength of their case. I say that, because I know very well that this Bill is getting a Second Reading to-day, to rectify a situation left to us as a legacy by the Government in which they were Ministers. That is the irony of the thing; that is the whole joke, that these two Deputies were attacking a thing which happened during the period when they were Ministers of the Government then in office. Deputy Lynch and Deputy O'Sullivan waxed very eloquent to-day as to what happened at that time, but surely they were in a much stronger position then, when they were members of the Government, than they are in to-day to rectify a situation that arose away back between 1928 and 1932.
We are thankful to Deputy Lynch for giving us the history of this whole situation in Listowel. It is not, therefore, necessary for me to go into it at any length. Deputy Lynch, in the course of his long speech, gave the members of the House a fairly good idea of the situation that has existed in Listowel. He mentioned that there was an election held in 1928. Apparently, nobody in Listowel had any ambition to become a member of the new council. The result was that the three members who stuck to the council were declared re-elected. I think that a certain amount of credit is due to the three members who stuck it out. The amusing part of the whole thing is this, that while the legal position as to the constitution of the council might very well have been the subject of an inquiry, during the four years from 1928 to 1932 no inquiry whatever was held. It surely should have been the duty of any responsible Minister in a Government responsible to the people for the handling of public moneys to institute such an inquiry, and to establish beyond all doubt that the urban authority in Listowel, composed of these three people, was legally constituted before consenting to do business with it. But during those four years the then Government did not hesitate to do business with, as Deputy Lynch has described it, this triumvirate council, and, what is more, not alone did the then Minister for Local Government do business with that illegally constituted council, as we are now told it  was, but he was so convinced of its legal position, and so convinced of the validity of its actions, that he actually allowed the three individuals constituting the council to exceed the borrowing powers of the council. So that not alone was the then Government prepared to do business with this triumvirate council, as Deputy Lynch has described it, but they were prepared, and, in fact, did give it power to raise money that Deputy Lynch now says the council was not entitled to get at all. That is the extraordinary situation that we are faced with here, and that is the position that has necessitated the introduction of this extraordinary legislation.
I have said before that I have a certain abhorrence of retrospective legislation, but I also say that there are special circumstances which justify it. I look upon this Bill as a necessary evil. It may well be asked why Deputy O'Sullivan and Deputy Lynch did not make some move to clarify the position that existed during the four years from 1928 to 1932. They were then responsible Ministers in the Government of that time. They were in office when the Lacca water scheme, to which Deputy Lynch has referred, was inaugurated, and, no matter what they may say now, they cannot divest themselves of a certain amount of responsibility for what happened. They cannot divest themselves of the greatest amount of responsibility for what happened then. But they come to this House to-day and try to brand us as iniquitous and extraordinary people because we take upon ourselves the duty of trying to rectify the mistakes that they themselves were responsible for. In other words, as Deputy Lynch has aptly put it, we are turning black into white, or trying to do it.
I look upon this whole dispute between the people of Listowel and the Department of Local Government as the height of folly. I look upon the litigation instituted recently by a certain group of individuals in Listowel as an attempt to embarrass the present Government. This group of individuals purport to represent the people of Listowel, but, as I said before about Deputy Lynch and Deputy O'Sullivan, why did not those people institute this  litigation between 1928 and 1932? They did not do so because, apparently, they did not want to embarrass the Government of that time. They have no hesitation, however, in trying to embarrass the Government that is in office to-day. I am sure that is very much appreciated by the Opposition Deputies. It is a fine thing, of course, for Deputies on the opposite side to take advantage of what may be looked upon by some people as an unpopular measure for the purpose of making Party capital out of it, but I think the people of the country are too well-informed and too well-up to be deceived by such conduct as that.
I think the litigation that took place as regards the Urban Council of Listowel and the whole position there was very foolish, because it should occur to anyone that it is a very foolish thing to fly in the face of a Department of State. Apparently, it was the intention to continue this litigation. As long as it went on the issue in Listowel would remain undecided, and the inhabitants of the town would be made the innocent victims of the whole thing. Further, there is no guarantee that those people would be successful in the legal proceedings which they have instituted. They are simply taking a chance, but they should remember that in continuing the litigation they were involving all the people in Listowel, because as long as the litigation went on the town of Listowel would be deprived of the benefit of all the grants that ordinarily accrue to the people of a town from Government Departments. Because of this dispute, the position in Listowel, since 1932, has been that no Government grants have been given to the town. The people there have been unemployed and no Government schemes of any sort have been inaugurated there, the reason being that the people of Listowel were supposed to be at war with the Department of Local Government. As long as that state of war continued, no benefits, in the way of Government grants, would go to the town of Listowel.
I respectfully suggest to the Minister that when this Bill becomes law, as I expect it will, he should go into  the whole position in the town of Listowel and take into account the fact that for the past three or four years, while this dispute was on, no grants have come to the people there, even though they had to contribute to revenue just the same as anybody else. The people of Listowel were not in a position, as a result of this dispute, to take advantage of the Government's housing legislation. There was a good attempt made in 1932, when 104 houses were built. But what has been the position? Those 104 houses have been lying idle ever since, with the grass growing around the doors. There was in or about £30,000 spent on the building of those houses. I can say that houses are just as badly needed in Listowel as in any other town in the Saorstát, yet the 104 houses have been closed since 1932 and people have been condemned to live during all that period in unwholesome and insanitary houses, and in the face of that are we going to let the £30,000 go for nothing? I will ask the Minister to transmit this suggestion to the Commissioner in Listowel, that when striking the rate he should have regard to the amount the people of the town have lost in the way of grants and things like that as a result of this dispute.
Deputy O'Sullivan suggested that the £9,000 borrowed should be wiped out by the Department. Nothing would give me greater pleasure, as a representative of Listowel, if I could get an assurance from the Minister that the Government would be prepared to forego this sum. If the Minister does not find himself in the position to forego this amount, or part of it, he should at least consider the question of funding this debt and extending the repayment of the amount borrowed in respect of those schemes to which Deputy Lynch has referred, over a number of years and, if necessary, hand part of the debt down to posterity. I am afraid that if the people of Listowel have to bear this burden, they will find it very crushing and it would be very unwise to put people out of business altogether. I recommend the funding process to the Minister and I hope he will suggest that  to the commissioner. I do not know whether it can be done in accordance with existing legislation, but even if it is necessary to introduce a Bill for the purpose, I do not see why it should not be done. Such a course was followed in the case of the arrears of land annuities. Deputies will remember that payments of arrears were stretched over a period and a similar funding process was introduced. I think it has worked well and that it will work out very well in this case also.
I hope that this Bill, when it becomes law, will clarify the position in Listowel and bring about better relations between the people there and the Local Government Department. It is time the whole dispute should end and that people should be given a chance of living their lives in their own way without extraordinary or unprecedented interruption of this kind. I hope also that the 104 houses will be made available at the earliest moment to those anxious to become tenants. I appeal to the Minister to be as generous as he possibly can in his treatment of this situation. I hope he will not be in any way prejudiced by the actions that were brought to the courts against him or his Department. Speaking for myself, I regarded it as very foolish litigation which would tend to do no good.
Mr. Brennan: I would like to ask the Minister if there has been an omission from this Bill. The Bill appears to be one of general application, but all the speeches have reference to Listowel. I would like to know if from the Preamble or by way of Schedule there is an omission of the town of Listowel or something in relation to it. Is it a Bill of general application, or has it reference only to Listowel?
Mr. T.J. Murphy: The situation that gave rise to this Bill has been described as extraordinary. I think, in view of what we have heard this  evening and in view of what some of us have read in the local papers, the situation might be described as bewildering. Deputy Kissane has stressed the necessity of clearing up the position in Listowel. I quite agree, but I do not think that the method the Minister proposes is the best way to deal with the matter. I am reminded of the fact that 12 months ago a Bill in which the Cork County Council, the principal local authority in Cork, had a very direct interest, was before the House, and the same principle that is the basis of this measure was also the basis of that one. Speaking with an experience of several years in this House, I can say for myself and those associated with me that we have viewed retrospective legislation as a most objectionable thing, and if the Minister could divorce the retrospective provisions of this measure from the other provisions, I think we would be very glad. If he is unable to do that, I am afraid I shall find myself in opposition to the Bill.
I do not want to go into a whole lot of detail in connection with the matter. I merely wish to supplement what has been said by something of what I have read in the local papers. Anybody who has read the local papers could not have been impressed with what was done in Listowel. I think there ought to be, there must be and I hope there always will be, democratic control in local affairs. I hope and I believe that it is possible to ensure that with democratic control there will be efficiency on the part of those in management. I am afraid Deputy Lynch and Deputy O'Sullivan, both very influential members of this House, cannot acquit themselves entirely of responsibility. I was not impressed with the deliberations of the new urban council that succeeded the old local authority in Listowel. I think that with some display of tact the present very difficult position might have been avoided; if the successors of the alleged council that has been referred to here this evening had acted more tactfully, much trouble could have been avoided.
I suggest the Minister should hesitate to seek the wide powers that he  asks for in this measure, because it is a line of action that is bound to create a good deal of opposition and that will engender a great deal of suspicion. Speaking in a general way of local administration, I think the people are entitled to more consideration. We had a pretty sharp reminder in the newspapers this morning as to what is possible. What has been termed a bombshell has occurred in the local administration of Cork City. The corporation there have been presented with a bill for £15,000 or £16,000, incurred by what has been confessed to be mismanagement, and confessed by somebody who is supposed to be one of the super-authorities on local government in this country. Altogether because of the principle of retrospective legislation contained in this Bill, I think the measure is objectionable, and I ask the Minister to consider the matter— not to consider the problem that exists in Listowel, and which must, I think, be faced with a certain amount of compromise on all sides, in the manner indicated in this measure, but in some other way, and, before this Bill leaves the House, to revoke the retrospective provision that must always make a measure of the kind objectionable.
Mr. Lavery: It is common, according to the order and practice of this House, to debate retrospective legislation and, possibly it is rather late in the day now to raise one's voice against it because it is now rather the rule than the exception. Retrospective legislation might possibly have something said in its favour if the Minister could show the House that there was some general evil which required the action of the Legislature to redress it, and required that some provision should be made to meet some financial difficulty which was general throughout the country. As I understand it, Deputy Brennan has just ascertained from the Minister that that is the way in which he presents this case to the House. This Bill is presented as a general Bill, but, as Deputy Brennan observed, every speaker who has discussed it up to the present has dealt  with it as a Bill affecting Listowel only. I think the Minister ought to tell the House whether the problem is a general one or only a particular one.
Mr. Lavery: I am not a Kerryman, and I think the House is entitled to know from the Minister, before the Bill is put to the House, whether the problem is a general or a particular one, and if it is a general problem, what is the amount of liability involved and what is the position of local authorities throughout the Saorstát. We have a Bill here which certainly proposes to do things generally throughout the local authorities of the country of every kind apparently; to say that what they have done is to be valid whether it is within their powers or not; and to say that what they have done is to be valid whether they themselves are properly constituted or not.
I do not know whether there are any particular cases present to the mind of the Minister or his Department other than the Listowel case. If there are not, why is this Bill not presented to this House as a Bill to impose on the urban district council of Listowel a charge of £12,000, which, under the existing law, they are not bound to bear? If it were presented in that form, it certainly would require all the eloquence of the Minister and of any Deputy who might see fit to support him to induce the House to support it. If that is what it means, if it is a Bill to impose on Listowel a charge of something over £12,000 for which, under the existing law, they are not liable, it ought to be presented to the House and justified as such. If, on the other hand, local authorities for years past have been invalidly constituted, if elections have been irregularly carried out, if contracts have been irregularly entered into and if the limits provided by law upon their borrowing powers and contractual powers have not been observed, before the House validates all these illegalities, it ought to have some idea of the scope of the problem.
I suggest that in all the retrospective  Bills we have had there never has been one of such a sweeping character as this. It has never been proposed to this House to make the acts of illegal bodies valid and to make them valid for a period of 14 years in the past. This Bill is to be deemed to operate from 6th December, 1922, and the House is asked to do that without knowing what the problem is, if there is a problem, and, if there is no problem, why this Bill? The other Deputies who have spoken on this Bill have gone into a good deal of detail with regard to the Listowel case. If this is presented and justified as being necessary in order to meet the situation in Listowel, the situation is, as I have explained, to impose on that township a liability which under the law they are not presently bound to bear.
Reference has been made to certain legal proceedings brought by a large number of ratepayers in the town. The proceedings, which were defended by the Minister in the courts, were heard at length by Mr. Justice Johnston, and were decided in at least one particular, contrary to the contention of the Minister and contrary to the law which this Bill seeks to establish. The judge of the High Court only decided that case after he had held, in opposition to the submissions of the Minister, that the proceedings were validly constituted.
An appeal was taken to the Supreme Court, I think, by all parties concerned, in order that the situation which Deputy Kissane admits requires clarification should be determined, and all the expense of presenting that case to the Supreme Court was incurred by the Minister's Department, by the Commissioner administering the affairs of the township and by the plaintiffs. The whole matter was before the court, and the Minister sent his counsel into court to say that, although the matters were fully before the court, and a decision could be had, he wished the court, first, to determine the purely technical point as to whether the Attorney-General was formally a necessary party to the proceedings. All the parties were put to the expense of debating that interesting but irrelevant question, so far as the affairs of Listowel  were concerned, for something like two or three days, and the Minister succeeded in his contention, with the result that all the money expended by the plaintiffs, by the Department, and by the Commissioner in the trial before Mr. Justice Johnston, and in preparing the case for the Supreme Court, became of no avail.
It is not the only case in which the Minister has, if I may say so with respect, endeavoured to obstruct decisions being had in the courts on local government matters. I could instance several that came within my personal knowledge, but I shall refer to only one. Under the Housing Acts, a person whose property is compulsorily taken from him is given a right of appeal to the High Court against the order depriving him of his property. The Acts provide that rules should be made by the Minister prescribing the procedure under which that appeal is to be taken. No rules have been made, though the first of these Acts is dated 1931, and the second is dated 1932, and there are later Acts. The first case that came before the court was brought by a procedure known as summons, and the Minister sent presumably his counsel in to argue that the procedure was wrong, and that the case should have been brought by another procedure, certiorari, that the time for appeal has expired and that the proceedings should be dismissed on that point and the man appealing deprived of his appeal. The court decided against him, and held that the proceedings were properly brought by summons, and the case proceeded and the man got relief, but only after the Minister had endeavoured to obstruct the decision of the court on the merits of the case.
In the next case that came along— possibly the next man thought: “I shall meet the Minister on his own ground”—the proceedings were brought by certiorari. When the case came into court the Minister appeared by his counsel, and the Minister's counsel argued that certiorari was not the proper form of procedure, that the proceedings should have been brought by summary summons and that, therefore, the defendant should be deprived of his remedy. It was only when the  court decided that both forms of procedure were open to him that justice was done. I could quote other instances where the Minister through his counsel in court has endeavoured to prevent justice being done. This Listowel case is one and there are a number of cases under the Housing Acts. I could elaborate that and I could show that the Department and the Minister, so far from seeking to have speedily determined cases in which the rights of parties are concerned—whether they be officials of local authorities, persons whose property is being acquired or ratepayers who believe that they have been made liable for heavy charges which they should not be called upon to bear—have met these cases with technical points in order to prevent the merits of the cases being dealt with. In the case which I have mentioned, it was the fault of the Minister that no appeal could be taken owing to absence of rules of procedure.
This is not the time nor the place to make a general attack on the Minister for Local Government and Public Health or on the administration of his Department, but I think that a Bill of this kind, entitled “Local Authorities (Miscellaneous Provisions) Bill” justifies the observation that we have far too many Local Government Acts. Their number is legion. We have thousands of Orders and we have dozens, if not hundreds, of Acts. I do not think I am putting it too far when I say that despite all the efforts that have been made since the inception of the Free State to simplify local government, the present position is one practically of chaos and that no lawyer, either belonging to the Minister's Department or outside it, can confidently advise any local authority or any officer of a local authority, what their position, or his position, is with regard to rating powers, borrowing powers, terms of appointment, salaries, rates of superannuation or anything like that. I do not think I am putting it too far when I say that is the situation.
Mr. Lavery: Instead of a situation like that being met by the Department's officers sitting back and saying: “Now is the time to relieve local administration; now is the time to simplify this medley of powers going back to the Grand Jury Act; now is the time to provide the people with some definite code of local government law,” this present Bill is a good example of what we are likely to get, what can only be called hand-to-mouth legislation. Even to-night we heard Deputy Kissane stating that this is not the last Bill to redress the present situation and inviting the Minister to bring in another. No doubt the Minister will do so; he will continue to introduce Bills until chaos and confusion become worse confounded. However, we must look to the terms of the present Bill.
I consider that the case of Listowel has been very unfairly met by the Minister, first, in the way in which he has met the case in the courts and, secondly, by bringing this Bill into the House to defeat proceedings which are already in existence because, I take it, it has been mentioned in the House already that those ratepayers who were dismissed from the court on a technical point made by the Minister after incurring much expense, have, with the approval of the Attorney-General and with the use of his name, come along and have started proceedings to have the matter determined by the Supreme Court. It should be a principle, even in these days of facile legislation by one House, that once this House has expressed its views in the form of an Act, the interpretation of that Act should be for the courts and not for this House. What do we find here? We find here that this House is asked to put a particular construction on a statute of 1921 and a particular construction on a statute of 1878. The provision in the statute of 1878, which is now to be amended, is one which has been administered for something like 60 years. This is Section 238 of the Public Health Ireland Act of 1878, which provides a limit on the borrowing powers of sanitary authorities.
There seems to be a difference of opinion as to how that section has been  constructed in the past. At any rate, the Minister must think that the construction which he now seeks to place upon it is not one which the courts would uphold. It is one which Mr. Justice Johnston has rejected, and the judicial position at present is that the Minister's construction is not, and has not been, the meaning of that section. That is recognised in the very terms of the section in the Bill, because this House is asked to give a meaning to that section “notwithstanding any judicial interpretation to the contrary,” recognising that the courts have decided that this section does not and did not bear the meaning now to be given to it. Surely that is bad enough, about as far as we can go, actually to reverse the decision given by the court as to the meaning of the section, but when we consider that Sir George Vanston, who for many years was Chief Officer of the Local Government Board and who is the author of standard works on local government, has given in his work an interpretation to the statute the same as Mr. Justice Johnston, and contrary to the interpretation which this section in the Bill seeks to give it, surely we are justified in saying that this is a case where the Minister is bringing in a provision to give a past interpretation to a section which has been administered for something like 60 years with a definite meaning.
Deputy Lynch has referred to an even more vicious principle in this Bill. I take it that it is recognised that ratepayers are entitled to have it provided that the borrowing powers of local authorities shall be in some way limited, that a local authority shall have some limit beyond which it must not go in imposing liabilities on them. The provision which I have referred to provided for such a limit. There are other provisions in it, of course. In 1921, owing to the exceptional expenditure of the time consequent on the war, a special provision was made enabling local authorities to borrow over and above the limits provided, for the purpose of meeting current expenditure. That is to say there was special expenditure for which they could borrow and which they could  repay within a limited time, in order, the idea was, that current expenditure should be repaid even if met by loan, by the people and within a short period of the time during which it was obtained and spent. The House is now asked in Section 11 to take that section, permitting borrowing for current expenditure beyond the limit, and to extend the power of borrowing to cover the payment of instalments upon existing loans. So that an urban council or other local authority, under this Bill, can borrow beyond the limit for any expenditure and re-borrow for the purpose of paying off the instalments on that loan. That process can be indefinitely extended until there is no limit on the power of borrowing. It would be far more candid if the Minister were to bring in a short section to remove all restrictions on the borrowing powers of local authorities. The House would then know what it was doing and would not be confused by this glossary of a section of an Act of 1878. It is unfair to ask the House blindfold to pass a Bill in that way.
Deputy Kissane has declared that if he thought this Bill were going to impose an impossible burden on the people of Listowel he would vote against it. That was his opening remark—if he thought the burden was impossible for them to bear he would vote against it. In his concluding remarks—I take it that perhaps he had his eye not upon this House but upon his constituency—he suggested to the Minister that he should fund the loan. Of course, the loan is already funded in the sense that it is payable over a period of years. The Deputy suggested to the Minister that he should fund the loan, because he said the people would find it a crushing burden if they had to meet those charges. Truly they will find it a crushing burden, because this involves more than £12,000. I understand that the entire rateable valuation of the town of Listowel is just something over £5,000. It will be seen, therefore, what this burden is going to mean, together with the other big charges they have to bear for housing and other expenses. I suggest to Deputy Kissane that there is little difference  between the crushing burden which he admits this Bill will impose upon the people of the town, and the impossible burden which would induce him to vote against the Bill.
Dr. Rowlette: The greater part of this debate has been carried on as if this were a matter affecting mainly or almost altogether the town of Listowel. If I thought that was so it would be rather impertinent on my part to express any opinion on the Bill before the House, but there seem to be such important principles in the Bill that it should interest and alarm Deputies in all parts of the House on account of the precedents that would be established if this Bill were to become law. I should like for a few minutes to draw the attention of the House away from the particular case of Listowel and the hardships that either the ratepayers of Listowel or the persons who acted— whether legally or not I do not know— as council for Listowel, may have to suffer unless the Minister takes some steps to relieve one side or the other.
The first thing that strikes one on listening to this debate is that it is a very objectionable thing that the details of a lawsuit entered on the books of court should be subject to a debate in this House, but such a thing was inevitable when a Bill was brought before us which proposes to take from the purview of the court an action actually entered on its books. It is very objectionable, when citizens claim under the laws of the land to have their rights in a particular matter determined, that those rights should be canvassed between Deputies of this House, but that is inevitable when a Bill is introduced which closes access to the courts against those who seek the help of the courts. It has been admitted by all who spoke that retrospective legislation was justifiable only in very rare instances. The rarest of the rare —I think those were the words of the former Attorney-General—who summed up the conditions which would render such legislation justifiable. In the present instance the Minister has really not made any attempt to prove that the legislation he proposes is justifiable. I read the terms of this Bill when I received it a few days ago, and I listened to the Minister speaking  on it for some ten minutes to-day, before I could realise that he was speaking on this Bill; I looked at the board several times to see whether the wrong number had been put up. In his speech, for some ten minutes or a quarter of an hour he was dealing with the needs for housing and so on, a moral lesson, with which we all agreed but which did not seem to have the slightest relation to the terms of this Bill.
It is remarkable, as has been pointed out by the Deputy who has just spoken, that although the Bill apparently applies altogether to the case of Listowel it is framed in the most general terms. As Deputy Lavery has pointed out it is framed not merely to cover irregularities of this kind which may have taken place during the last 14 years but to give immunity to similar irregularities which any group may succeed in committing in the future. The Bill is not, in the ordinary sense, retrospective. It is retrospective but it is also prospective. It provides that whenever a body of persons who are not lawfully constituted as a local authority, purport to act as if they were lawfully constituted as a local authority they commit those in whose names they act. If they borrow money they commit those in whose names they act; if they make a contract they commit those in whose names they act to the fulfilment of that contract. That seems to me to open the door to the most patent fraud and impropriety, not merely on the part of a person bona fide acting in a capacity in which he is not lawfully entitled to act, but on the part of a gang setting themselves up as a lawful authority and palming themselves off upon some innocent person. It secures to any person the whole of his claim against the authority in the name of which this gang acted. As far as the terms of the Bill go it seems to open the door to gangster enterprise in this country. That may be checked by other means, but the Bill opens the door to a person acting in that illegal way, in the security that whatever actions he may take must be backed by the local authority in whose name he acts.
 I am not making any assumption as to whether this council was legal or not. It is not for members of this House to decide that. There is a proper authority to decide that, but the Minister endeavours to prevent that decision being made by the proper authority. This Bill proposes not merely retrospective legislation to protect people who acted in a bona fide capacity, but to give protection to those who act in an illegal way in the future, as well as to those who have done so in the past. It is more objectionable even than retrospective legislation, as it is legislation which interferes with an action which is actually going on in the courts. The courts are secured by the Constitution from interference, but we have the Minister coming in here before the court has an opportunity to give its decision—the opportunity to give it in the past having been taken away by the Minister's own action as a party in the courts—and asking the House by this Bill to prevent the court deciding who acted properly in the past and who acted illegally or improperly. Citizens consider themselves entitled to make use of the laws of their country, but the Minister, with a political Party to support him here in the House, asks the House to deprive those people of their legitimate constitutional rights. They have the right to appeal to the court. They have come to the court and made their appeal. They have got the authority of the Attorney-General to make their appeal, but the Minister asks us to-day to decide that they cannot have that appeal; that they cannot have an opportunity of having a legal decision given by the courts of the land. I know nothing which could bring the courts into greater contempt than such Bills as this. The forestalling of a legal decision in a case which is not actually pending but might be brought, is likely to bring the courts into contempt, but I know of nothing which is more contemptuous of the courts of the land than interference with a case which is actually entered on the books of the court. Individuals are punished for what is regarded as contempt of court, which is often little more than a matter of ill manners, but here we have the Government of  the country acting in this contemptuous way towards the courts. The whole debate this afternoon—a debate which necessarily followed on the introduction of this measure—has been in the greatest contempt of court in a general sense.
Even, however, if one might admit that there were a case for dealing in some legislative way with the position of Listowel, the Minister has gone much further than is necessary in dealing with it. He has not brought in a Bill to set right any blunders that have been made in Listowel—to clarify the situation, as Deputy Kissane said—but he has brought in a perfectly general Bill which has set right, possibly, a number of mischances in the past, of which we know nothing and about which the Minister has said nothing, but which also sets right a number of legal actions which may take place in the future. It is often said that hard cases make bad law, but sometimes individual hard cases require to be relieved by legislation. It seems to me that, in his opening statement, in which the Minister avoided as far as possible the evil effects that this Bill purports to remedy, he has not made any case for bringing in such a Bill as this to remedy the hardships which, undoubtedly, have occurred in the town of Listowel.
Mr. Cosgrave: There are just one or two points that I should like to put to the Minister. In dealing with local government on general principles in a measure of this kind, it ought to be dealt with free from a political taint.
Mr. Cosgrave: Deputy Lynch made a speech here this evening which some people construed as being a criticism of the last Administration. There was no doubt whatever in anybody's mind, after Deputy Kissane's statement, as to what his opinion of the measure was and the necessity for it. The fact is that during the period from 1928 down to 1932 no action was taken by any ratepayer in Listowel, as far as I know, in his own interest or in the interests of his fellow-ratepayers, to regularise a position which was open to any criticism. Action has been  taken now, and the case has gone through two courts and is going through a third. The Legislature enters, on the advice of a Department of State, to terminate that matter at a point where the final decision may be expected—at a point where most of the expense has already been incurred —and takes from the court the right which the court has of deciding an issue that is put before it by the citizens of the State. Obviously, one or both of the persons engaged in the litigation in this matter have a cause of complaint. It is unlikely that the Supreme Court would have made an order apportioning the costs to each side. So far as the Department of State is concerned, I think the Minister will have to admit that entering into a proposal to the State and the Parliament to make a statutory enactment, after all the expense has been incurred, is a mistake.
If we were to enter into it at all, we ought to have entered into it directly when the proceedings started and so have saved a very considerable amount of the costs that have been incurred. So far as those ratepayers are concerned, at any rate, who have entered into this—and I do not know any of them nor have they approached me in connection with the matter, although I believe some publication in connection with it has been in the hands of some Deputies to-day, but I have not seen it—there is, in my mind, a cause of complaint on the part of those people that the Parliament is taking away from them the right that they have to go to court. The Parliament has the power to do that, but it ought not to inflict an injustice, and no member of this Parliament should subscribe to the principle that the last word in law, or the last word in regulating or determining how the people are to do their business, should rest with a Department of State. The Department of State should be under the law also, and it would be better for a Department of State that it should be so. It would stop, at any rate, if it did nothing else, the continuous trek from different parts of the country when some little difficulty occurs asking to have a clause inserted to settle the question concerned.
 Coming to the measure itself, it is rather a pity that there are so many Acts dealing with local government. This, the Minister tells us, is a general Bill. I have gone through it very carefully, and, while the number of sections set out goes as far as 11, there are really only nine operative sections. The first section is a declaratory section, and the last is just a description of the measure. Sections 2, 3, 4 and 5, unquestionably, have reference, and can only have reference, to Listowel in the present circumstances. I will admit to the Minister at once that it is of general application and will cover other cases in the future, but there is no doubt about its affecting no other case than that of Listowel at the moment. Sections 6, 7 and 8—Sections 6 and 7 anyhow—might be said to affect other districts, but they are largely concerned with Listowel. It strikes me that some special effort will have to be made in the town of Listowel to meet this big expenditure of £12,000. One of the possible means of doing so would be to get a town hall and to have it let for performances of one sort or another and so make it a source of revenue. Section 7 is a rather important section. I forget exactly the sum of money that a small local authority was entitled to raise for the purpose of meeting the expenses of its administration, but now the rate has been increased to 2/6 and there is very little doubt that that affects the present financial circumstances of the town of Listowel.
Going on through the remainder of the sections, Section 9 can scarcely be divorced from Listowel. Section 10 may possibly affect it, and certainly Section 11, which provides for a local authority borrowing money in order to repay a loan or the interest charges on a loan, or the principal of a loan, must have special reference to that body if the financial difficulties we have heard about are so pressing as they seem to be. I thought that the most lame statement that was made here to-day was that made by Deputy Kissane, in which he said that we should fund this loan. Looking at the loan of £12,000, the rate of interest on which, I presume, would be approximately 5 per  cent., I do not see any funding operation that can take place that will reduce the 5 per cent., and that is the major portion of it. You might, possibly, if the loan is for 40 years, extend it to 60 years, and that would reduce the sinking fund charges, but only to a negligible extent, as far as the ultimate liability is concerned.
I hope the Minister will consider two points: one, that we will have a local government code so that we will not require to search through the various Acts that have been passed, or the indexes of each year to see whether or not a Local Government Bill has been passed in that year; and, secondly, that we will have one code of local government, that it will be carefully considered, and that the Minister will tell the local authorities and his Department that once it is drawn up no special circumstances that may arise will prompt him to introduce a Bill to amend it for the future. His own Department is probably as much in fault in that connection as the local authorities. They were many years under alien Administration here and there were no continuous Local Government Acts coming along except those dealing with the political situation at the time. There was, in the normal course, the Act of 1878 and there was the Act of 1898 dealing with larger matters. I am speaking about general things; particular things, such as slaughter-houses, are altogether different and the peculiar circumstances of our modern situation would require something in that respect. But so far as a code is concerned we should have one and be done with it. It is unfair to say to people, as is implied by this Bill, that they may go to the courts and, when they do, they are to pay their own costs and have to bear their own expenses. It is only fair to persons who have, in good faith, entered into litigation, that some consideration should be given for the costs they incurred in that litigation.
Mr. Brennan: My objection to this Bill is its general application. There may be special circumstances, and undoubtedly special circumstances will arise from time to time which demand special treatment. Apparently, at the moment Listowel is one of them. Personally,  I do not know anything about Listowel. I do not propose to discuss the Bill from the Listowel point of view, but I think it is unfair that a Bill brought in to deal with Listowel is going to be put into the position of a continuing enactment for all local authorities. I say that because, first of all, it deprives the House of an opportunity of segregating those matters and discussing them on their merits. That is a disadvantage in which members of the House ought not to be placed. This Bill, as Deputy Rowlette pointed out, has retrospective and objectionable clauses, clauses which give the right to the local authorities in future, where they are illegally constituted, to have their acts legalised. That is a point of view which nobody in this House would expect to have brought forward as a continuing Act.
The Minister will, I am sure, tell the House that he never previously knew of an instance in which a Bill of this kind was required. I am sure he does not anticipate any such trouble in the future as the trouble that has arisen in Listowel. Surely the Minister will admit, and he must admit, that in the matter of Listowel there was a certain amount of remissness on the part of the Department of Local Government and Public Health. These Listowel people exceeded their borrowing powers. That is quite apparent from the section of the Bill which proposes to validate the borrowings where their powers have been exceeded. If Listowel exceeded its borrowing powers then the Department of Local Government is clearly responsible for the Department that allowed those people to do so. The Minister shakes his head. Surely the Minister does not anticipate another Listowel situation arising in any part of the country. If he does, this is not the way to deal with it, because this is a type of retrospective legislation dealing with a particular situation which has been allowed to develop over 12 or 14 years. That is an extraordinary situation; and it should be allowed to develop in a particular way. The Bill should be confined to that particular situation. To have this as a continuing enactment is courting disaster. We are setting out  here in several sections that although the local authority may be illegally constituted, unless steps are taken within a prescribed period it can continue to act and will continue to act as a legally constituted authority. That prescribed period is 12 months, and there is nothing to prevent that local authority within that period entering into contracts. Within that period they may be brought into court and their action declared illegal. But there is no provision for dealing with that. Now, the main Bill is of general application and is a continuing enactment. To my mind, because of its being a continuing enactment, this is a most objectionable Bill, and for that reason we, on this side of the House, intend to oppose it.
Mr. Dillon: I take it that the Attorney-General will intervene at some stage of this discussion. I should like if he would answer one categorical point. The Attorney-General is sponsoring and approving in this House legislation designed to take from the litigant his remedy in law, when the litigant is already in court and when he has already become liable for substantial legal costs. This Listowel business in comparison with the major principle is an insignificant matter. This procedure which the Minister proposes to adopt in the Listowel case establishes what we regard as a most obnoxious principle. The courts are there partly for the protection of the individual citizen against the Executive. Is the individual going to be fixed with notice that whenever he invokes the courts to protect him from the Executive, the Executive will come to Dáil Eireann and secure the passage of legislation to defeat the citizen's remedy? In that case, there is no use in any citizen ever appealing to the courts in defence of his statutory rights. That is a matter which, I think, should appeal to the Minister himself but it should appeal, much more particularly, to the head of the legal profession in this country. The Attorney-General as the head of the legal profession in this country has a peculiar responsibility to protect the legal rights of all citizens not only between one another but as between  the citizen and the State. He has a peculiar autonomous position in many of his functions in which he is deliberately withdrawn from the authority of the Executive Council so that he will act as a thoroughly independent person between the citizen and the Executive. This places him in a position of much responsibility. And I say that the principle enshrined in this Bill strikes at that whole conception of his functions, and gravely jeopardises the system under which this statute proposes to work. I think the House is entitled to ask the Attorney-General to answer this categorical question—does he in principle approve of the Executive coming to this House for legislation wherewith to short-circuit the current legislation without any compensation to the litigant and with the result of notifying citizens everywhere that there is no use in invoking the courts against the Executive because if citizens do invoke the courts, Dáil Eireann will be called into service for the purpose of short-circuiting them.
Mr. O Ceallaigh: I agree with some Deputies, and with Deputy Dillon, that it is not desirable to bring in legislation to take from a citizen or from a body of citizens any legal remedies they may have. Generally, that is a principle upon which every Party is agreed. I do not believe that there was anything bona fide behind the people who have been organising and instituting legal actions in this matter. I believe that it was not for the good of the people of Listowel that actions were instituted. On the contrary, they have had the very opposite effect on the town of Listowel, from my point of view as Minister for Public Health. Deputy Cosgrave talked about a local government code. I agree with the Deputy that it would be an excellent thing to have the local government law codified, but it is a huge undertaking. When he was head  of the Government he and his Party had the opportunity of doing it, but they did not do it. It has not been done. We started doing so some years ago but it will take some years more. It is a big job and it cannot be done in a year or two. To my knowledge, one part has been in hands for nearly three years in order to try to put it into finished shape. It will take years to do it. I wish to goodness it was done, as matters of this kind would then probably be avoided and doubts and difficulties need not arise. I hope it will be done during the term of office of this Government. It would be to the satisfaction of everyone to have it done.
Another point raised by Deputy Cosgrave was that the delay was in order to bring in legislation to end this case. If there is anything I am really sorry for, it is that I did not come here to stop the malicious people who are doing the town and the people of Listowel infinite harm by blocking the excellent public health works that, through the agency of the Government, would have been gone on with for the people of Listowel. I was astonished to hear the outrageous language, as I call it, used by Deputy Rowlette. I thought he was a staid, sensible, commonsense man. Something must have made him use that type of language without any foundation for it. That is the awkward part. The only excuse is that he did not know what he was talking about. “Fools rush in where angels fear to tread,” but the Deputy was not acting the part of the angel by intervening in this matter. He looks a very sensible, solid and commonsense individual who would not act foolishly, especially when speaking as a Deputy. The only excuse is that he was speaking in ignorance when he talked about allowing gangsters and conspirators to constitute themselves a gangster authority. I do not think any Government—certainly not this Government or any future Government—would allow that. As far as the finances of local authorities are concerned there is always control by the Minister for Local Government, no matter who he is. Surely this country and this House  in its wisdom will select some one who would not permit the foolishness that Deputy Rowlette described to be carried on. That was something unworthy of the Deputy.
Dr. Rowlette: As regards the Minister's references to gangsters, I say that the Bill leaves it open to people outside the Department and outside the local authority, people who are beyond the control of the Minister, to act in that way.
Mr. O Ceallaigh: The legal authority is the local authority until its authority is questioned, and the local authority in this case acted for at least 14 years, if not for more, as such authority, and not one individual in the town of Listowel questioned its right through the law with regard to certain matters. No matter what the local authority does, it is legally constituted if it does certain acts bona fide. Whatever contract it makes with the public these contracts are binding. We are only introducing the same element that has been the law for 40 years in regard to mortgage deeds and loans, as has been the case as regards stock and other matters. I am inclined to get heated about this, but I do not know why I should, except for being disappointed with Deputy Rowlette, whom I always looked upon as a sound, reliable, commonsense individual. I was disappointed to hear him talk as he did on this matter. He let himself go in a fashion that if he knew more he would not have done.
Deputy Brennan said he knew  nothing about Listowel. I wish I could say the same. I was not a month in office until I began to hear about Listowel and the horrible things going on there. These things were going on in the period when Deputy Fionán Lynch was a Minister and a representative for County Kerry, and when he could have regularised matters. The Deputy's Party allowed them to go on from week to week, from month to month and from year to year. They allowed this illegal body that the Deputy now stands for, that he represents in the Dáil and that he spoke for as Minister, and it was left to me to wipe up the mess that he and his colleagues allowed. That is what I am doing. I am taking on the burden that they should have taken on their shoulders, of trying to put matters right. It is a bad mess and there is nothing in it to the credit of the town of Listowel. The ratepayers should have stepped in, and when they did not do so, the county council should have stepped in and put matters right.
It is because there was not sufficient public spirit there to put matters right, not because there was an illegal body in existence, that I have to take the job in hands. That is part of the job of a Minister. This case is not a particularly agreeable one, and it was not one to deal with in a Party spirit as some Deputies did, because both Parties in Listowel are in this. It is a ramp on the part of certain people in Listowel to try to get away without paying their just debts. I am going to see that they pay every penny of what is properly due by them. Imagine this condition of affairs. This council that was recognised by the last Government for four years, that was given loans and recognised as a legal body under the 1932 Act, and after that Act was passed, decided to go ahead with a housing scheme that was badly needed for the town. I have the medical officer's report, which shows that there was not a town in the country that needed housing worse than Listowel. There are 104 houses completed there for more than two years, but they are locked up, and not one of them could be let until this rotten, muddled financial situation that started under the patronage of  Deputy Lynch was cleared up by me. There are 104 houses there while people are living in the most horrible hovels in the town of Listowel. These houses cannot be let because the contractor has not been paid—thousands of pounds are still due to him.
Then there is the water scheme. You would imagine that the Government were responsible for the water scheme. The Government, at the request of the local authority, sent down the names of five reputable consulting engineers and said to the local authority: “These men act as consulting engineers; select any one of them.” They selected one and he produced a scheme. He happened to be, as I know for various reasons, a particular political friend of Deputy Fionán Lynch. Now Deputy Lynch, because he wants to encourage and help the people of Listowel to get out of paying their debt for that scheme, says it is a rotten scheme. We are not responsible for that. It was the Local Government Department in Deputy Lynch's administration, and not in my administration, that passed that scheme and put it on the people of Listowel—at least accepted it. They say that it is a rotten scheme. I do not agree. I do not agree that Deputy Lynch's administration in that respect was as bad even as he himself says now.
I am trying to get the people of Listowel, especially the poorer people, out of the rotten mess into which a lot of intriguers have got them by holding up public administration in that town—some of them, at any rate, for mean Party and political purposes. We are not going to stand for that. We are going to see that the town of Listowel, as far as we can help it, gets clean, efficient administration and that the people who, in the main, want to meet their debts and obligations will get an opportunity to do so. I am not qualified to go into long legal arguments.
Mr. O Ceallaigh: The Attorney-General is very well qualified, if it is necessary. I have not heard anything in the debate that would call for any reply from the Attorney-General on the legal aspect of it. Various interpretations of sections of Local Government Acts were given here, and various authorities were quoted. One Deputy, whom I am sure everyone regards as a legal man of very high standing, one of the highest in the profession— Deputy Lavery—purported to tell us what Vanston's view was with regard to borrowing powers, and my information is that Vanston's view was the very contrary to what Deputy Lavery told the House was his view. That is a matter that can be proved.
Mr. O Ceallaigh: That is why I do not want to get into the law too deeply. I am not as imprudent as the solid-looking gentleman opposite to whom I addressed some remarks a few moments ago. They also talked about a charge of £12,000 on the local authority. There is no such charge. That was, I suppose, taken out of the printed circular that Deputy Cosgrave referred to, which, I am sure, Deputy Lynch and others in this House have got, sent out by these people who are doing infinite harm, as I said, to the ordinary townsfolk of Listowel by misrepresenting the whole case. They talk of a charge of £12,000  on the people of Listowel. There is no such charge. There is a loan of £30,000 for housing, which I was glad to hear Deputy Lynch say should be paid. The Government pay two-thirds of the cost of that loan. They pay 66? per cent. in the case of slum clearance. This is a case of slum clearance. Some of the worst slum conditions in the country are there. People have been clamouring to get into these houses for two years and they will not be let because these people, with malicious intent, I believe, interfered. Deputy Lynch knows better than I do, and I think if he were free he would probably agree that it is not with the highest motives they are interfering.
Mr. O Ceallaigh: I cannot speak for Deputy Lynch, but I can imagine what is at the back of his mind. I see nothing improper in introducing a Bill of this kind to put right a rotten situation such as exists in Listowel. The Bill is mainly directed at Listowel. It is general in its application and in its construction, but the majority of the clauses deal with Listowel. Deputy O'Sullivan talked of the unfortunate ratepayers of Listowel. I agree with him. The unfortunate ratepayers of the town, through supineness, have allowed these two or three people to do this. Deputy Lynch knows that two or three people are responsible for all this trouble, all this blocking of progress—public health progress, housing progress, and waterworks progress in Listowel for the last seven or eight years.
Deputy O'Sullivan said that it was necessary to come to the assistance of the people of Listowel. We have been coming to their assistance, but we have been blocked—not by the elected authority—at every hand's turn since 1932 and the previous Government were also blocked in trying to construct a proper water scheme for Listowel. I was not long a Minister when I made an offer, which I thought was a very generous one, to Listowel. At that time I said, “I will put it up to the Minister for Finance to give an additional free grant of £4,000 so that you can go ahead and put your water scheme right.” They did not  accept that offer. The then elected body would have accepted it, but the clamour that was got up by interested parties frightened them into going out of business practically.
I do not know that I need say any more. Retrospective legislation is not a thing to blow your trumpet about, I suppose, but it is necessary from time to time in certain cases. It was necessary during the régime of the last Government; it was necessary in our time in a few cases; and perhaps until the end of time in certain cases it may be found necessary. There is nothing we need be ashamed of in the clauses of this Bill so far as retrospective legislation is concerned. It mainly deals with the town of Listowel. Local authorities all over the country—some of them of the same size, population and valuation as Listowel—have provided waterworks schemes and housing schemes in the past few years and have been able to meet their liabilities. They are no better off than is Listowel and they are meeting their liabilities regularly. There is no great burden on them. It would not be a great burden on Listowel to meet its liabilities in a legitimate way.
Deputy Murphy spoke of the necessity for democratic control in local affairs. That is what we wanted in Listowel. In 1925, a council of 12 members was elected. Nine of them dropped out. The history of the matter was given us by Deputy Lynch earlier in the evening. Three councillors carried on. When the next election came on, nobody was nominated. There was not sufficient civic spirit in the town to secure the nomination of a solitary person. What were we to do?
Mr. O Ceallaigh: We did not do that. The town clerk got advice from her own lawyer. That lawyer advised her to appoint the outgoing councillors. She appointed the active members of the outgoing council and declared them elected. We did not step in to interfere with the democratic rights of the council. We did not want to take over the affairs of the council or to interfere in any way, good, bad  or indifferent. The people of Listowel refused to accept their own civic responsibilities at that time. In 1934, when a council was elected, they deliberately decided — the majority were republican of one brand or another—not to strike a rate which would enable them to meet their obligations to those who had lent them money. They dishonoured the council and the ratepayers. They would not strike a rate to pay their debts. Having urged them to do so, and having been met with an obstinate refusal, I had no option, if the affairs of the council were to be put right financially, but to wipe them out and put in somebody who would administer the affairs of the council properly until such time as the citizens of Listowel came to their senses. I am not anxious to abolish any local authority. That is never done by me except as a last resort. It has never been done and will not be done by me. So long as local people are prepared to shoulder their own burdens and carry on their affairs, as they are bound to do, according to law, they will not be interfered with by me, and no commissioner will be put in their place. This mess and this difficult tangle which has been handed over to me is not the creation of the decent people of Listowel but is the creation of and is organised by mischief makers—people who want to make trouble for the town, for certain people in the town, and for the Government. That being the case, I think that the Bill is justified in every section, and I ask the House to pass it.
Mr. Lynch: It is due to me to make, at least, a protest against the attack made by the Minister on persons who are plaintiffs in this particular case. He has referred to them as intriguers, mischief makers, and so on.
Mr. Lynch: They include the Chairman of the Listowel Urban Council, the principal hotel proprietor in the town, and a classical professor in St. Michael's College. Apart from the indecency of referring to plaintiffs in a case before the court, I protest against the Minister's attack on these men.
Mr. O'Neill: In his opening remarks the Minister said that the county council could have interfered in the affairs of Listowel Council. I should like to know if there is any power in the county council to interfere where there is an urban district council in existence?
Mr. Brennan: I have been eagerly waiting to hear some explanation of the need for the general application of this measure to the country, as distinct from Listowel town. The Minister has not given us any justification for that.
Mr. Dillon: Perhaps the Minister would invite the Attorney-General to answer the question, if he does not care to answer it himself. It is bad enough that citizens should be deprived of their remedy after they have gone to law. Are we to understand that, where litigants start a suit against the interests of the Government, they are to be liable not only to deprivation of their remedy by  statute but also to being dragooned in this House by a Minister who has described the parties in this case as rogues, intriguers and trouble-makers —language which would leave the Minister open to an action for damages for slander if repeated outside?
An Ceann Comhairle: The Deputy is entitled to put a question to the Minister on any point which he has not explained but he is not entitled in the guise of a question to reply to the Minister's speech.
Mr. Dillon: The Minister says the House will take away the remedy of citizens if occasion arises in the future. Does he intend, if such a clash arises in the future between a citizen and the Executive, to use this House for the purpose of denouncing citizens as rogues, intriguers and trouble-makers?
Corry, Martin John.
Keely, Séamus P.
Kelly, James Patrick.
|Kennedy, Michael Joseph.
Lemass, Seán F.
Little, Patrick John.
Murphy, Patrick Stephen.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
Pearse, Margaret Mary.
Ruttledge, Patrick Joseph.
Ward, Francis C.
|Beckett, James Walter.
Bennett, George Cecil.
Broderick, William Joseph.
Cosgrave, William T.
Costello, John Aloysius.
Dillon, James M.
Dockrell, Henry Morgan.
Dolan, James Nicholas.
Doyle, Peadar S.
Fitzgerald, Desmond. O'Reilly, John Joseph.
O'Sullivan, John Marcus.
Redmond, Bridget Mary.
McFadden, Michael Og.
McGuire, James Ivan.
Murphy, James Edward.
Murphy, Timothy Joseph.
O'Higgins, Thomas Francis.
O'Neill, Eamonn. Roddy, Martin.
Rowlette, Robert James.
Motion declared carried.
Bill read a Second Time.
An Ceann Comhairle: When is it proposed to take the Committee Stage?
Mr. O Ceallaigh: To-morrow.
Mr. Lynch: I take it that amendments can be handed in any time to-morrow. I would have protested very strongly against the Committee Stage being taken to-morrow were it not that I understand an agreement was made by the Whips last week. I take it that, since the Committee Stage is being taken to-morrow, I can hand in amendments up to 1 o'clock.
An Ceann Comhairle: Up to 12 o'clock to-morrow.
Committee Stage ordered for Thursday, 26th November, 1936.
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